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reupreme Court of QDljio
In re State of Ohio, ex rel. James E. Baroni
Plaintiff-Relator-Appellant,
V.
David Colletti, et al.,
Defendants-Respondents-Appellees.
Case No.,2011-0455
MERIT BRIEF OF PLAINTIFF-RELATOR-APPELLANT
ON APPEAL AS OF RIGHT FROM AN ORIGINAL ACTION COMMENCED IN THE
OHIO COURT OF APPEALS, NINTH APPELLATE dUDICIAL DISTRICT
CASE No. 25334
F ul^t^u
m xy
Gi.tRK %00UR'e5UPREiVL CUURI Ot'JH10
S. DAVID WORHATCH 0031174Law Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224-1406
330-650-6000 (Akron/Kent)330-656=2300 (Cleveland)330-650-2390 (Facsimile)[email protected]
Counsel forPlaintiff-Relator-Appellant
TABLE OF CONTENTS
TABLE OF AUTHORITIES CITED
STATEMENT OF THE FACTS
ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW
Proposition of Law No. 1:
Notwithstanding the provisions of O.A.C. 123:1-30-04(A), when a stateemployee makes a qualifying application for reinstatement following aperiod of involuntary disability, the appointing authority has a clear legal
duty under O.R.C. § 124.32(B) to reinstate such employee within 30 days
of the date the appointing authority receives such application and an actionin mandamus will lie to compel such appointing authority to remit all
compensation and restore all perquisites of employment lost by the
applicant between the date he or she is released by a treating physician to
return to work and the date the appointing authority ultimately returns the
applicant to the payroll.
CERTIFICATE OF SERVICE
APPENDIX
Journal Entry of the Ninth Appellate Judicial District of the Ohio Court of Appeals,
February 11, 2011
Pa e s
ii
1
5
28
TABLE OF AUTHORITIES CITED
Pa e s
Statutes
O.R.C. §124.03 3,17,22
O.R.C. § 124.09 26
O.R.C. § 124.32 passim
O.R.C. § 124.32(B) passim
O.R.C. § 124.34 passim
O.R.C. § 2731.01 6
Administrative Rules
12O.A.C. 123:1-30-01(E)
O.A.C. 123:1-30-03 1,12
O.A.C. 123:1-30-04 passim
O.A.C. 123:1-30-04(A) passim
O. A. C. 123 : 1-3 0-04 (B ) 12
O.A.C. 123 :1-3 0-04 (C) passim
O.A.C. 123:1-30-04 (I) 3, 17, 22
Cases
Baroni v. Ohio Department of Mental Health, Northcoast Behavioral HealthcareCase No. 10-MIS-02-0041, State Personnel Board of Review
Columbier v. City of Kenton111 Ohio St. 211,145 N.E. 12 (1924)
Cuyahoga Falls Education Association v. Cuyahoga Falls City School District
Board of Education112 Ohio App.3d 266, 678 N.E.2d 976 (1996)
4
15
7
C Pa e sases
Fischer v. Damm36 Ohio App. 515, 173 N.E. 449 (1930) 22,23
Gates Mills Investment Co. v. Pepper Pike59 Ohio App.2d 155, 392 N.E.2d 1316 (1978) 22
Nemazee v. Mt. Sinai Medical Center56 Ohio St.3d 109, 564 N.E.2d 477 (1990) 22
O'Brien v. University Community Tenants Union, Inc.42 Ohio St.2d 241, 327 N.E.2d 753 (1975) 25
Porter v. Roher95 Ohio St. 90, 115 N.E. 616 (1916) 15
State ex rel. Arnett v. Winemiller80 Ohio St.3d 255, 685 N.E.2d 1219 (1997) 23
State ex rel. Bossa v. Giles64 Ohio St. 2d 273, 415 N.E.2d 256 (1980) 7
State ex rel. Brewer v. Smith136 Ohio St. 67, 23 N.E.2d 836 (1939) 6
State ex rel. Crabtree v. Franklin County Board of Health77 Ohio St.3d 247, 673 N.E.2d 1281 (1997) 23
State ex rel, Dempsey v. Zangerle114 Ohio St. 435, 151 N.E. 194 (1926) 7
State ex rel. Edwards v. Toledo City School District Board of Education72 Ohio St.3d 106, 647 N.E.2d 799, 1995-Ohio-251 25
State ex rel. Fattlar v. Boyle83 Ohio St.3d 123, 698 N.E.2d 987 (1998) 7
State ex rel. Fenske v. McGovern11 Ohio St.3d 129, 464 N.E.2d 525 (1984) 7
State ex rel. Hanson v. Gernsey County Board of Commisnioners65 Ohio St.3d 545, 605 N.E.2d 378, 1992-Ohio-73 25
State ex rel. Hummel v. Sadler96 Ohio St.3d 84, 771 N.E.2d 853, 2002-Ohio-3605 25
iii
Pa e sCases
State ex rel. Juhlman v. Conners122 Ohio St. 355, 171 N.E. 589 (1930) 23
State ex rel. Kabert v. Shaker Heights City School District Board of Education
78 Ohio St. 3d 37, 676 N.E.2d 101 (1997) 7
State ex rel. Kay v. Brown24 Ohio St.2d 105, 264 N.E.2d 908 (1970) 5
State ex rel. Killeen Realty Co, v. City of East Cleveland169 Ohio St. 375, 160 N.E.2d 1(1959)
23
State ex rel. Martinelli v. Corrigan68 Ohio St.3d 362, 626 N.E.2d 954 (1994) 5,7
State ex rel. Moore v. Board of Elections for Hocking County1 Ohio App.2d 10, 203 N.E.2d 493 (1964) 5
State ex rel. Odgers v. Gradison43 Ohio L.Abs. 625, 66 N.E.2d 923 (1944) 6
State ex rel. Paul Stutler, Inc. v. Yacobucci108 Ohio App. 41, 160 N.E.2d 300 (1958) 22, 23
State ex rel. Phelps v. Gearheart104 Ohio St. 422, 135 N.E. 606 (1922) 23
State ex rel. Price v. Huwe103 Ohio St. 546, 134 N.E. 456 (1921) 23
State ex rel. Scott v. Masterson173 Ohio St. 204, 183 N.E.2d 376 (1962) 5
State ex rel. Stevens v. Mummey23 Ohio St. 2d 70, 262 N.E.2d 701 (1970) 7
State ex rel. Trusz v. Village of Middleburg Heights112 Ohio App. 87, 163 N.E.2d 778 (1960) 23
Talwar v. State Medical Board156 Ohio App.3d 485, 806 N.E.2d 1009, 2004-Ohio-1301 26
iv
Other Authorities
67 OHIO Jux.31) Mandamus, Etc., § 17 (1999 and cum.supp.) 6
1585 OHIO Jutt.3D Statutes, § 256 (2004 and cum.supp.)
v
STATEMENT OF TIiE FACTS
This is a direct appeal as of right from the February 11, 2011, journal entry of the
Ninth Appellate Judicial District of the Ohio Court of Appeals dismissing the verified complaint
of Plaintiff-Relator-Appellant James E. Baroni ("Baroni") in this original action in mandamus.
Baroni is employed by the Ohio Department of Mental Health ("ODMH") in the
position of Building Superintendent 1 for the ODMH's Northcoast Behavioral Healthcare facility
headquartered in Sagamore Hills Township, Summit County, Ohio.l Following a period of in-
voluntary disability separation from his position, Baroni applied on December 10, 2009, for rein-
statement to his position and presented a certificate given by his treating physician attesting to
his release of Baroni to resume regular job duties on December 28, 2009.2
In spite of the extended period of advance notice afforded ODMH by Baroni's
December 10, 2009, application, the Chief Executive Officer of the ODMH Northcoast Behav-
ioral Healthcare facility, David Colletti ("the Appointing Authority") delayed until the second
week of January 2010 before making any effort to exercise ODMH's privilege under O.A.C.
123:1-30-03 of referring Baroni to another physician for an independent medical examination.3
On January 14, 2010, the independent medical examiner agreed with Baroni's
own treating physician that Baroni could return to work, but not without certain restrictions that
Baroni's own treating physician did not impose; to make matters worse, the Appointing Author-
ity's response to the independent medical examiner's findings was ambiguous about whether
1 Verified Complaint, ¶ 1.
2Id.,6.
3Id.,¶7.
Baroni would be reinstated at all or only with certain restrictions 4 Thus, instead of either af-
firmatively granting or denying Baroni's December 10, 2009, application, as specifically re-
quired by O.R.C. § 124.32 and O.A.C. 123:1-30-04(C), the Appointing Authority did neither and
instead just scheduled a pre-reinstatement hearing for February 4, 2010.5
On the day immediately following the pre-reinstatement hearing, or 57 days after
receiving Baroni's December 10, 2009, application for reinstatement, the Appointing Authority
informed Baroni that he would be reinstated without restrictions after all, but that he would not
return to active duty until February 16, 2010, or 68 days after ODMH received Baroni's applica-
tion for reinstatement.6
Because his treating physician had released Baroni to return to work on December
28, 2009, Baroni's eligibility to continue receiving disability benefits would end on that date. 7
Accordingly, when the Appointing Authority failed to approve the application for reinstatement
in time for Baroni to return to work on December 28, 2009, Baroni was faced with the prospect
of an interruption in his income stream unless he began drawing against his accumulated vaca-
tion leave. So while his application for reinstatement continued languishing in the ODMH re-
view process, Baroni had no alternative but to ask the Appointing Authority to continue remit-
4 Id., ¶ 8; see also Affidavit of James E. Baroni ("Baroni Affid."), June 2, 2010, ¶ 3,
Ex. B.
5 Id.
6 The record reflects that Baroni nevertheless was returned to the payroll two days ear-
lier, on February 14, 2010, or 66 days after applying for reinstatement. Id., ¶ 9. A copy of the
letter received by Baroni to confirm the telephone call he received on February 5, 2010, appears
in the record at Supplement to the Veri.ned Complaint, Ex. A.
7 Id.,¶10.
2
ting payroll checks to him by charging his accumulated vacation leave account beginning De-
cember 28, 2009.8
The Appointing Authority's reinstatement notice to Baroni did not mention the
prospects of full or partial back pay and/or restoration of part or all of the vacation leave charged
against Baroni's accumulated vacation leave for the 47-day period of December 28, 2009,
through February 13, 2010.9 So following an effort to work out the parties' differences over
ODMH's obligation either to restore Baroni's used vacation leave or compensate him for that 47-
day period, Baroni initiated an appeal to the State Personnel Board of Review ("SPBR") seeking
an order compelling ODMH to remit full or partial back pay for that 47-day period and/or restore
part or all of the vacation leave charged against Baroni's accumulated vacation leave account
between those two dates.10 On March 5, 2010, the administrative law judge assigned to Baroni's
SPBR appeal determined that the SPBR lacks jurisdiction over appeals from orders granting re-
instatement after a period of involuntary disability separation because O.R.C. §§ 124.03 and
124.34 and O.A.C. 123:1-30-04(I) expressly provide for a means by which a state employee may
initiate an appeal to the SPBR only from an order denying an application for reinstatement made
under O.A.C. 123:1-30-04. In essence, then, the administrative law judge determined that the
SPBR could not consider the specific issue raised in Baroni's appeal inasmuch as it was framed
in the context of an appeal of an order granting an application for reinstatement; in due course,
8 Id.
9Id.,¶11.
10 Id., ¶ 12. True copies of both Baroni's notice of appeal filed with the SPBR and the
letter of Baroni's counsel to the appointing authority, both transmitted on February 15, 2010, ap-
pear in the record at Supplement to the Verified Complaint, supra, Exs. B and C.
3
the SPBR adopted the administrative law judge's position as its own and concluded that the
SPBR cannot expand its own jurisdiction to include any type of appeal not expressly listed by the
General Assembly in defining the subject matter of allowable appeals under Chapter 124 of the
Ohio Revised Code or applicable administrative rules.11
The parties do not contest that Baroni satisfied all statutory and regulatory prereq-
uisites in making his application for reinstatement. He made his application before the end of the
first year of his involuntary disability separation; he did not file for disability retirement; his ap-
plication was supported by medical evidence attesting to his ability to return to work; and his
same position was vacant and had not be,en eliminated by the Appointing Authority during Baro-
ni's period of involuntary disability separation.
The facts in the record therefore establish that although Baroni made a qualifying
application for reinstatement on December 10, 2009, the Appointing Authority did not act on that
application until February 5, 2010, did not reinstate Baroni to the active payroll until February
14, 2010, and did not actually return Baroni to duty until February 16, 2010.
11 Id, ¶ 13. A true copy of the administrative law judge's March 5, 2010, decision ap-
pears in the record at Supplement to Vexified Complaint, supra, Ex. D. The SPBR accepted
the administrative law judge's decision on Apri17, 2010. Baroni v. Ohio Department of Mental
Health, Northcoast Behavioral Healthcare, Case No. 10-MIS-02-0041.
4
ARGUMENT
Proposition of Law No. I
Notwithstanding the provisions of O.A.C. 123:1-30-04(A), when a stateemployee makes a qualifying application for reinstatement following a pe-riod of involuntary disability, the appointing authority has a clear legalduty under O.R.C. § 124.32(B) to reinstate such employee within 30 daysof the date the appointing authority receives such application and an actionin mandamus will lie to compel such appointing authority to remit allcompensation and restore all perquisites of employment lost by the appli-cant between the date he or she is released by a treating physician to returnto work and the date the appointing authority ultimately retutns the appli-
cant to the payroll.
The Appointing Authority had a clear legal duty under O.R.C. § 124.32(B) to re-
instate Baroni within 30 days of the date of his application "if [Baroni] passe[d] a physical ...
examination made by a licensed physician ... showing that [Baroni] ha[d] recovered from the ..
. physical ... disability, if the application for reinstatement [was] filed within two years from the
date of separation, and if the application [was] not filed after the date of service eligibility re-
tirement." In this case, therefore, Baroni seeks to cure a default in the Appointing Authority's
perfonnance of a clear legal duty arising by operation of O.R.C. § 124.32 and Chapter 123:1 of
the Ohio Administrative Code by securing a writ commanding the Appointing Authority to per-
form a clear legal duty enjoined by law and to remit to Baroni all compensation and/or the value
of all perquisites of employment lost on account of the Appointing Authority's failure to honor
that clear legal duty. 12
12 State ex rel. Martinelli v. Corrigan, 68 Ohio St.3d 362, 626 N.E.2d 954 (1994); State
ex rel. Kay v. Brown, 24 Ohio St.2d 105, 264 N.E.2d 908 (1970); State ex rel. Scott v. Masterson,
173 Ohio St. 204, 183 N.E.2d 376 (1962); State ex rel. Moore v. Board of Elections for Hocking
County, 1 Ohio App.2d 10, 203 N.E.23 493 (1964).
5
ODMH was obligated by O.A.C. 123:1-30-04(C) to schedule a pre-reinstatement
hearing and give Baroni an opportunity to be heard on the record to dispute any reservations that
the Appointing Authority may have harbored in respect of Baroni's reinstatement. Such a hear-
ing would have been justified however, onl if the Appointing Authority had determined that
Baroni's application for reinstatement should be denied because Baroni was incapable of dis-
charging the duties of his position. Even assuming the Appointing Authority made such a de-
termination and had the duty to schedule a pre-reinstatement hearing, he did not do so until Feb-
ruary 4, 2010, or some 56 days after receiving that application.
A writ of mandamus will issue where the relator establishes that the law specifi-
cally enjoins the performance of an act as a duty resulting from the respondent's office.13 The
fact that disposition of an action in mandamus would require a court to interpret a statute or
regulation to determine whether a specific duty exists does not relieve a court of the duty to do
just that, for not even a determination made by the officer against whom the relief in mandamus
is directed that the law does not enjoin upon him or her a specific duty can interfere with a
court's obligation to determine whether such officer's interpretation is correct.1"
Baroni's burden in this case is to establish (1) that he has a clear legal right to the
relief he seeks, (2) that the Appointing Authority in this case is under a clear legal duty to per-
form the act Baroni has requested, and (3) that Baroni has no "plain and adequate" remedy at
13 O.R.C. § 2731.01; see also State ex rel. Brewer v. Smith, 136 Ohio St. 67, 23 N.E.2d
836 (1939).
14 State ex rel. Odgers v. Gradison, 43 Ohio L.Abs. 625, 66 N.E.2d 923 ( 1944); see also
67 O.Jux.3D Mandamus, Etc., § 17 (1999 and cum.supp.)
6
Iaw.15 Accordingly, if there is some set of facts and/or some interpretation of the law that would
support a claim for back pay and/or restoration of lost vacation leave, it would be error for the
court below to have dismissed Baroni's mandamus action.
Inasmuch as Baroni is an employee of the state who is paid for his services upon
warrants drawing against public funds, a mandamus action will lie to compel an appointing au-
thority to discharge duties imposed upon him or her by laws that determine the compensation
and benefits of public employees.16 Since the Appointing Authority in Baroni's case acts in an
official capacity in discharging a position of trust as to the full amount of compensation and
benefits to which Baroni is entitled by law, a mandamus action will lie to compel the Appointing
Authority to carry out his fiduciary duties in that regard. Indeed, where by operation or interpre-
tation of a statute or a regulation a public employee is entitled to certain compensation" or bene-
fits,18 the public employer's duty to remit the same is regarded as "purely ministerial," meaning
that such act involves no element of discretion, and the obligation to assure that the public em-
ployee receives such compensation or benefits may be enforced by way of an action in manda-
mus, it being the view that the right to such a remedy is not subject to substantial doubt.
15 State ex rel. Fattlar v. Boyle, 83 Ohio St.3d 123, 698 N.E.2d 987 (1998); State ex rel.
Martinelli v. Corrigan, supra.
16 State ex rel. Kabert v. Shaker Heights City School District Board of Education, 78
Ohio St. 3d 37, 676 N.E.2d 101 (1997); State ex rel. Fenske v. McGovern, 11 Ohio St.3d 129,
464 N.E.2d 525 (1984); Cuyahoga Falls Education Association v. Cuyahoga Falls City School
Dfstrict Board of Education t 12 Ohio App:3d 266, 678-N;E.2d-976 (1996).
17 State ex rel, Dempsey v. Zangerle, 114 Ohio St. 435, 151 N.E. 194 (1926); State ex rel.
Stevens v. Mummey, 23 Ohio St.2d 70,262 N.E.2d 701 (1970).
18 State ex rel. Bossa v. Giles, 64 Ohio St. 2d 273, 415 N.E.2d 256 (1980) (the right to re-
lief in mandamus extends to compensation for fringe benefits, including vacation leave).
7
The court below dismissed Ba.roni's verified complaint for failure to state a claim.
In doing so, the Ninth Appellate Judicial District concluded that the Appointing Authority's duty
under the law was limited to notifying Baroni of its decision on his application for reinstatement
not later than 60 days after receiving that application.19 The court below concluded that since the
Appointing Authority gave notice of reinstatement to Baroni within that 60-day period, all duties
imposed by O.A.C. 123:1-30-04(A) were satisfied.
Baroni believes that the Ninth Appellate Judicial District's interpretation of the
applicable administrative rules is too narrow. This is because the lower court lamentably fo-
cused only on O.A.C. 123:1-30-04(A) without considering that administrative rule in the context
of the statutory framework that is to be served by that rule, including a statutory guarantee oa a
30-day review designed to safeguard the constitutionally protected property interest of civil ser-
vants in service of the State of Ohio when they seek reinstatement following a period of involun-
tary disability separation.
This case, then, cannot be decided by referring exclusively to O.A.C. 123:1-30-
04(A). To the contrary, a proper interpretation of the Appointing Authority's duty under the law
can take place only by referring to the statute by which the Appointing Authority also was bound
in deciding how to handle Baroni's application for reinstatement.
The consequences to the Appointing Authority respecting his disposition of
Baroni's application for reinstatement follow from a complete understanding of the comprehen-
sive set of duties specifically enjoined upon the Appointing Authority by operation of O.R.C. §
124.32(B) and the balance of the administrative rules that offer a rubric for public employers to
19 Journal Entry, p. 5.
8
follow when one of their employees exerts his or her right to seek reinstatement following a pe-
riod of involuntary disability separation.
To be sure, O.A.C. 123:1-30-04(A) includes the following sentence: "The ap-
pointing authority shall notify the employee of its decision to approve or deny the reinstatement
request no later than sixty days after it receives the employee's written request." (Emphasis sup-
plied.)
ODMH took the position in the court below that the Appointing Authority's duty
under this administrative rule was satisfied merely by acting upon Baroni's application for rein-
statement within 60 days of the date that application was received. However, this Court should
conclude that such an interpretation not only is inconsistent with the statutory basis for the rule,
but also that ODMH's position would require this Court to construe O.A.C. 123:1-30-04(A) in a
manner not harmonious with other provisions of Chapter 123:1-30 of the Ohio Administrative
Code designed to protect Baroni's rights as a public employee interested in resuming his career
in active service of the state following a period of involuntary disability separation.
Before considering the technical legal position assumed by the court below in its
disposition of Baroni's mandamus action, this Court should take note of a self-evident fallacy
underlying the position taken by the Appointing Authority in disposing of Baroni's application
for reinstatement in the first place. To accept ODMH's interpretation of this regulation, this
Court would have to agree that an appointing authority conceivably could satisfy its regulatory
obligation merely by acting within 60 days to give a returning employee a written notice that his
or her application for reinstatementwouid be accepted ... even if that notice -also deferred the
employee's return to the public agency's payroll for a year ... or indefinitely! This sort of pre-
posterous result would not square with the obvious intent of the admir.istrative rule that a deci-
9
sion to reinstate be executed within 60 days. Yet, ODMH's invitation to the court below in this
case resulted in precisely that sort of absurd result! Surely, this Court will agree that such a re-
sult, if not vacated in this direct appeal, would make a mockery of the rights that the General As-
sembly intended to extend to civil servants when the statute on the involuntary disability separa-
tion process for public employees was enacted. An appointing authority should not be allowed
to satisfy the 60-day deadline imposed by O.A.C. 123:1-30-04(A) by merely giving notice that a
qualifying application for reinstatement would be granted, only to defer reinstatement to some
date falling outside of that 60-day window!
A closer examination of the law reveals that the analysis of the court below was
too narrow and did not take into account the statutory underpinnings of the administrative rule
on which the ODMH relies in this case.
The statutory authority for O.A.C. 123:1-30-04(A) is O.R.C. § 124.32(B). That
statute, in relevant part, reads as follows:
Any person holding [a] ... position in the classified service who has beenseparated from the service without delinquency or misconduct on the per-son's part may be reinstated within one year from the date of that separa-tion to a vacancy ... in a similar position in the same department ....[I]fthat separation is due to ... physical ... disability, the person shall be re-instated ... in a similar position to that held at the time of separation ...
within thirty days after written application for reinstatement ... if the per-son passes a physical ... examination made by a licensed physician ...showing that the person has recovered from the ... physical ... disability,if the application for reinstatement is filed within two years from the dateof separation, and if the application is not filed after the date of serviceeligibility retirement. The physician ... shall be designated by the ap-pointing authority and shall complete any written documentation of thephysical . . . ex_amination. [Emphasis supplied.]
In this case, the evidence demonstrates that Baroni met all of the requirements for timely rein-
statement within 30 days of December 10, 2009, the date of his application for reinstatement: He
10
made his application before the end of the first year of his involuntary disability separation with
all of the required information, including a statement of his treating physician attesting to
Baroni's ability to return to active duty as of December 28, 2009; he had not filed for disability
retirement; and the position from which he had been involuntary separated was vacant and had
not been eliminated by the Appointing Authority.
The problem for the Appointing Authority in this case, of course, is that ODMH's
reliance on the 60-day provisions of O.A.C. 123:1-30-04(A) cannot be squared with the 30-day
deadline imposed by O.R.C. § 124.32(B) for acting in a timely manner on an application for re-
instatement made by a qualified classified worker separated involuntarily on account of his or
her disability.
Regrettably, the court below ignored this statutory 30-day deadline in its six-page
journal entry. Instead, the court below focused entirely on O.A.C. 123:1-30-04(A) without both-
ering to consider the statutory context in which that administrative rule was promulgated in the
first place or how the 60-day allowance found in the administrative rule can be squared with the
30-day deadline imposed on the Appointing Authority by O.R.C. § 124.32(B).
The record reflects that the Appointing Authority failed to take steps necessary to
schedule - much less complete - an independent medical examination to avoid violating the 30-
day deadline of O.R.C. § 124.32(B). That failure to meet such 30-day deadline, therefore, sup-
ports Baroni's claim for relief in mandamus.
The question here, then, focuses on (1) the consequences to the Appointing Au-
thority of his failure to follow the 30-day deadline ii-nposed by O.R.C. § 124.32(B) and(2) the
extent to which ODMH now may rely on O.A.C. 123:1-30-04(A) to bail out the Appointing Au-
thority for that failure. Fortunately, even the balance of Chapter 123:1-30 of the Ohio Ad_minis-
11
trative Code supports Baroni's cause and makes it clear that the Appointing Authority's position
in this case is not sustainable in the context of the public policy objectives of O.R.C. §
124.32(B).
Baroni's reinstatement rights, as guaranteed by operation of O.R.C. § 124.32(B),
are amplified by O.A.C. 123:1-30-1(E) and O.A.C. 123:1-30-04. Under those administrative
rules, Baroni was to receive notice from the Appointing Authority of the "required procedures to
apply for reinstatement "20 Baroni was prohibited from seeking reinstatement until three months
had passed following the date of his involuntary disability separation and was required to seek
reinstatement by the second anniversary of his disability date.21 Baroni's application for rein-
statement had to be accompanied by medical evidence "that the employee is once again capable
of performing the employee's essential job duties," and upon receiving such evidence, "the ap-
pointing authority [was to] either reinstate the employee or require the employee to submit to a
medical ... examination in accordance with [O.A.C.] 123:1-30-03."22
Once the Appointing Authority satisfied his duty to secure the required medical
information, he was obligated to "make an initial determination of whether or not [Baroni was]
capable of performing the essential duties of [his] position" and thereupon had the obligation to
reinstate Baroni forthwith upon determining that "the employee is once again capable of per-
forming the essential job duties:'23 Indeed, the administrative rules go on to provide that a pre-
2o O.A C.123:1=30=01(E).
21 O.A.C. 123:1-30-04(A).
22 O.A.C. 123:1-30-04(B) (emphasis supplied).
23 O.A.C. 123:1-30-04(C).
12
reinstatement hearing was to be scheduled only iy the Appointing Authority determined that
Baroni "remain[ed] incapable of performing the essential job duties."24
In the case of Baroni's reinstatement application, the Appointing Authority did
not decide that Baroni "remains incapable of performing the essential job duties," but scheduled
a pre-reinstatement hearing any way. Apparently, the Appointing Authority did so because the
state's independent medical examiner concluded (in his untimely report based on a single visit of
less than one hour) that Baroni would have to return to work under certain restrictions that were
not ordered or recommended by the treating physician who had been seeing Baroni for nearly a
full year. But by that time, the Appointing Authority already had failed to meet the 30-day dead-
line imposed by O.R.C. § 124.32(B) inasmuch as he had made no determination that Baroni was
not "incapable of performing the essential job duties." This mandamus action is to determine the
legal consequences of the Appointing Authority's failure to make that determination.
This Court should find that O.R.C. § 124.32(B) obligated the Appointing Author-
ity to complete any independent medical examination within 30 days of the date of the Baroni's
application for reinstatement. After all, the statute makes it clear that an appointing authority
must act on a qualifying application for reinstatement by accepting or rejecting it within 30 days.
The court below ignored this vital provision of the Ohio Revised Code and by doing so failed to
protect the procedural guarantees and safeguards built into the legislative scheme when the Gen-
eral Assembly enacted O.R.C. § 124.32(B) in the first place ... and focused instead on merely
the operative provision of O.A.C. 123:1-30-04(A).
13
It already has been established that the 60-day deadline of this administrative rule
is inconsistent with the 30-day deadline fixed by the General Assembly when enacting O.R.C. §
124.32(B).
It also has been established that the Appointing Authority in Baroni' s case did not
meet this 30-day deadline for determining the fate of Baroni's application since the Appointing
Authority did not even refer Baroni to an independent medical examiner for an appointment until
it became impossible to meet that 30-day statutory deadline and did not receive that examiner's
report until that 30-day deadline had expired.25
Thus, by operation of O.R.C. § 124.32(B) and O.A.C. 123:1-30-04(C), the Ap-
pointing Authority could not deny Baroni's timely and qualifying application since the Appoint-
ing Authority had no "substantial, credible medical evidence" in his possession within 30 days of
the date of Baroni's application on which he could base a determination that "the employee re-
mains incapable of performing the essential job duties." As a result, the Appointing Authority
had a clear legal duty to reinstate Baroni not later than the 30th day immediately following the
date of his application. This meant that Baroni was entitled by operation of law to reinstatement
not later than January 10, 2010, the 30th day inunediately following his application for rein-
statement. The failure to reinstate Baroni consequently imposed on the Appointing Authority a
clear legal duty to comply with O.R.C. § 124.32(B) and O.A.C. 123:1-30-04(C) and restore
Baroni to the payroll as of December 28, 2009, but certainly not later than January 10, 2010.
The failure to honor such duty serves as the basis for Baroni's action in mandamus.
ODMH's rationale for the Appointing Authority's conduct in this case is clouded
by the fact that the administrative rules do not contemplate the precise action taken in this case.
25 Verified Complaint, ¶ 7; see also Baroni Affid., Ex. B.
14
Instead of simply rejecting the application for reinstatement and scheduling a pre-reinstatement
hearing, the Appointing Authority issued an ambiguous response that did not make it clear
whether he was deciding that Baroni would be reinstated at all or only with certain restrictions?6
So instead of following O.R.C. § 124.32(B) and O.A.C. 123:1-30-04(C), the Appointing Author-
ity forged a new path - untested and uncharted under the administrative rules - and neither
granted nor denied Baroni's application.
The consequences of taking such an ill-advised stance should be visited upon the
Appointing Authority exclusively, and not on Baroni, for the statute and rules - being remedial in
nature - are to be construed liberally in favor of protecting Baroni and his constitutionally guar-
anteed property interest in continued employment in the public sector.27 The purpose of this rule
of liberal construction of remedial statutes is to prevent sacrificing a statutorily confirmed legal
right on the Altar of Technicalities?8
But even if this Court somehow were to agree with the court below that the Ap-
pointing Authority was allowed to rely on the 60-day deadline found in the third sentence of
O.A.C. 123:1-30-04(A), ODMH cannot escape two other powerful arguments.
The first is that the Appointing Authority did not even reinstate Baroni within 60
days of the date of his application. Baroni's application was made on December 10, 2009. Ac-
cepting, arguendo, ODMH's interpretation of the third sentence of O.A.C. 123:1-30-04(A), then,
the Appointing Authority was required to make sure Baroni was reinstated not later than Febru-
26 Verified Compiaint, ^ 8; Baroni Af€id. ^ 4.
27 Remedial statutes are subject to liberal construction in favor of the party benefited.
See, e.g., 85 O.JU[t.3D Statutes, § 256 (2004 and cum.supp.) (collecting cases).
28 See Porter v. Roher, 95 Ohio St. 90, 115 N.E. 616 (1916); Columbier v. City ofKenton,
111 Ohio St. 211, 145 N.E. 12 (1924).
15
ary 9, 2010. Ba.roni's reinstatement to the payroll was not effective until February 14, 2010, and
he was not actually returned to duty until February 16, 2010 ... meaning that this mandamus ac-
tion was warranted - if for no other reason - than to secure the five additional days worth of
compensation or vacation leave benefits to which Baroni was entitled irrespective of the ultimate
interpretation of the meaning of the third sentence of O.A.C. 123:1-30-04(A). At a minimum,
therefore, this Court should make it plain through the decision it announces in this case that no
appointing authority may defer reinstatement beyond either the 30-day limit established by
O.R.C. § 124.32(B) or the 60-day period prescribed by O.A.C. 123:1-30-04(A). It was error for
the court below not to grant the writ of mandamus for at least the five-day period during which
Baroni had not been returned to the payroll after expiration of the 60-day period fixed by O.A.C.
123:1-30-04(A).
But Baroni's case is more substantial than that, of course.
To that end, the second powerful argument in support of Baroni's position is that
O.A.C. 123:1-30-04(A) did not allow the Appointing Authority to take as long as he wanted to
confirm what Baroni's treating physician already had certified without there being any conse-
quences to ODMH for the failure to reinstate Baroni at an earlier date. Baroni gave the Appoint-
ing Authority plenty of advance notice that he would seek reinstatement as of December 28,
2009. He applied for reinstatement on December 10, 2009, and provided all of the required
medical information to support that application. By operation of O.R.C. § 124.32(B), the Ap-
pointing Authority had 30 days to schedule an independent medical examination in time to re-
ceive such examiner's report by the end of that 30=sayperiod. He failed to-do that. In the mean-
time, the Appointing Authority's sluggishness in responding to Baroni's application ultimately
forced Baroni to begin drawing down his vacation leave account to avoid losing income once his
16
disability benefits ran out with the treating physician's certification that Baroni no longer would
be incapable of holding down his job as of December 28, 2009.
Who should bear the responsibility (and the consequences) for the Appointing
Authority's failure to discharge his statutory duties within the statutorily imposed 30-day dead-
line?
If Baroni's application for reinstatement had been denied, he would have been
able to appeal that decision to the SPBR,29 and upon reversal of that decision, an order of rein-
statement with back pay would have been issued upon reversal of the order denying reinstate-
ment.
The case before this Court really is not much different. If Baroni, as a matter of
law, was entitled to reinstatement by January 10, 2010, at the very latest, the consequences of the
Appointing Authority's failure to allow Baroni to retum to his job cannot be left for Baroni to
bear.
In the last analysis, it is clear that the 60-day allowance found in O.A.C. 123:1-
30-04(A) does not relinquish an appointing authority from the statutory-based obligation to re-
mit back pay when the appointing authority defers a decision on reinstating the employee by the
date specified by his or her treating physician and instead exercises a prerogative allowed by op-
eration of O.A.C. 123:1-30-04(A) of commissioning an independent medical examination.
29 O.R.C. §§ 124.03 and 124.34; O.A.C. 123;1-30-04(I). The door adm-itting-appeals tothe SPBR from an adverse decision of an appointing authority in respect of an application forreinstatement following involuntary disability separation swings only one way . . . only those
employees whose applications have been denied have access to an administrative review by the
SPBR. The law does not afford any successful applicant - such as Baroni - any access to the
SPBR, even if such applicant disagrees with certain consequences of the manner in which the
application for reinstatement was granted.
17
This Court should bear in mind that O.A.C. 123:1-30-04(A) is an administrative
rule promulgated by the Director of Administrative Services to carry out the statutory guidelines
imposed by the General Assembly upon enacting O.R.C.§ 124.32(B). Hence, while the Director
of Administrative Services theoretically could create a rule of administrative convenience to al-
low an appointing authority to take as much as 60 days to communicate a decision on an applica-
tion for reinstatement and to determine whether a pre-reinstatement hearing should be scheduled,
that administrative rule cannot erase the statutory duty clearly imposed upon an appointing au-
thority by the express provisions of O.R.C. § 124.32(B) to reinstate a qualifying applicant
"within thirty days after written application for reinstatement ... if the person passes a physical
... examination made by a licensed physician ... showing that the person has recovered from
the ... physical disability" and otherwise qualifies by having made application within two years
of the date of separation without filing for disability retirement benefits.
Specifically, therefore, while O.A.C. 123:1-30-04(A) gave the Appointing Au-
thority the prerogative of taking as long as 60 days to make a decision on Baroni's application
for reinstatement, any delay experienced in granting that application could not operate so as to
compromise Baroni's eligibility to realize his constitutionally protected property interest in re-
suming his employment in the public sector as of the date on which he was released by his treat-
ing physician to return to work.30 This is particularly important in a case, such as the one pre-
sented here by Baroni, where the reinstated employee's treating physician has certified that the
30 This is particularly true on the facts of the record in this case given that Baroni gave the
Appointing Authority nearly three weeks advance notice of his projected return date and the Ap-+r. zn ,,,Qt tn schedule and review the results of an in-pomring AUthorll`y tficri tovi{ iTavre ^.,a^. .... .x»j ^ ,, »^- _-
dependent medical examination and then waited nearly an additional month to get around toscheduling the pre-reinstatement hearing without first denying Baroni's application. Verified
Complaint, ¶ 7; Baroni Affid., ¶ 3, Ex. B.
18
employee no longer is disabled as of a particular date and the employee therefore becomes ineli-
gible to receive additional disability income benefits after such date and therefore must go with-
out income unless unused vacation leave could be tapped in the interim to avoid any intemxption
in the employee's income stream.
In other words, while the administrative rule may have set an outside limit on se-
curing the report of an independent medical examiner, the statute makes it clear that a successful
applicant for reinstatement must be restored to the payroll not later than the 30th day after his or
her qualifying application was tendered ... even if that results in a retroactive adjustment to the
successful applicant's compensation and/or benefits.
Baroni's ability to continue providing for his family was compromised in this case
when the Appointing Authority did not return him to work by the date specified by Baroni's
treating physician as the date on which we would be able-bodied once again and therefore no
longer would be eligible to claim any entitlement to continuing disability benefits. Accordingly,
Baroni is entitled to part or all of his back pay and/or restoration of part or all of his vacation
leave for the period of December 28, 2009, through February 13, 2010.
There are at least three possible outcomes: First, this Court could agree with
Baroni that the best view is that he is entitled to compensation and/or restoration of his used va-
cation leave for the entire period at issue; second, this Court could decide that O.R.C. §
124.32(B) allowed the Appointing Authority a fu1130 days to make his decision, thereby requir-
ing Baroni's compensation and/or restoration of used vacation leave to commence as of January
10, 2010, and not December 28, 2009, since the Appointing Authority was not under an uncondi-
tional duty to reinstate Baroni until the 30-day period prescribed by the statute would expire; or
third, this Court could decide that while the Appointing Authority was privileged to take up to 60
19
days to make a decision by operation of O.A.C. 123:1-30-04(A), he failed to reinstate Baroni by
February 9, 2010, thereby making Baroni eligible for five (5) days of additional compensation
and/or restoration of up to five (5) days of used vacation leave. After all, the record built in the
court below demonstrates - and the Appointing Authority's February 5, 2010, decision ulti-
mately confirmed (nearly two months after Baroni tendered his application for reinstatement) -
that Baroni met all of the qualifications to return to duty as of December 28, 2009. ODMH's
failure to remit back pay and/or restore vacation leave so as to cause Baroni to receive all com-
pensation and perquisites of employment to which he became entitled by operation of law, there-
fore, was actionable in mandamus since the law and the applicable administrative rules imposed
on the Appointing Authority a clear legal duty to reinstate Baroni by December 28, 2009, or (at
the latest) by January 10, 2010, or (at the absolute very latest) by February 9, 2010. The actions
of the Appointing Authority have prevented Baroni from realizing all rights and benefits of con-
tinuing employment in the public sector in violation of the Ohio Constitution, Chapter 124 of the
Ohio Revised Code, and Part 123:1 of the Ohio Administrative Code and relief in mandamus
therefore is warranted.
Turning, specifically, then to an analysis of the record against the various ele-
ments of an action in mandamus, it is clear that Baroni was entitled to the restoration of his regu-
lar compensation and benefits unless an independent medical examiner presented evidence
within 30 days of the application for reinstatement that would justify a decision by the Appoint-
ing Authority to deny Baroni's application on account of legitimate questions over whether the
medical evidence in fact supported an "initial determination" that Baroni was not "capable of
performing the essential duties of the [his] position" within the meaning of O.A.C. 123:1-30-
04(C).
20
The Appointing Authority had no such medical evidence and made no such deter-
mination within such 30-day deadline because the Appointing Authority did not get around even
to scheduling Baroni for an independent medical examination until a month after that 30-day
deadline had passed.
Baroni satisfied all of the legal requirements for perfecting a timely and fully
qualifying application for reinstatement. Hence, the issue before this Court relates to Baroni's
right to the restoration of compensation and/or vacation leave benefits as a consequence of the
Appointing Authority's failure to live up to his clear legal duty, as imposed on him by operation
of O.R.C. § 124.32(B) and Chapter 123:1 of the Ohio Administrative Code, when read in pari
material. Since mandamus is the appropriate means of securing an order requiring an appointing
authority to remit compensation and/or benefits to which an employee in the state service is enti-
tled, Baroni has a clear legal right to the relief he requests.
Without the benefit of a writ of mandamus, Baroni lacks a "plain" and °ade-
quate " remedy at law inasmuch as the persistent failure or refusal of the Appointing Authority to
comport their conduct to the requirements of applicable constitutional, statutory, and regulatory
rules and principles will continue to deny Baroni the opportunity to realize all compensation and
benefits guaranteed to him by law. Baroni cannot realize such relief in any other fashion since
he lacks any other remedy at law or in equity, through an appeal to the SPBR or otherwise, by
which full relief might be granted on his claim for full or partial restoration of back pay and/or
vacation leave charged for the period of December 28, 2009, through February 13, 2010, or any
portion of that period. Commencing this original action in -mandam- us was not subject to any
condition that Baroni first exercise the "vain act" of attempting to seek judicial review of the dis-
missal of his noble effort to convince the SPBR to take on his cause even though O.R.C. §§
21
124.03 and 124.34 and O.A.C. 123:1-3004(I) clearly barred his access to the SPBR for that pur-
pose for all of the reasons detailed at the margin in this merit brief.31
The law on what constitutes a"plain" and "adequate" remedy at law is well de-
veloped.
Case law in Ohio establishes that a remedy is "plain" only if it presents few diffi-
culties or intricacies32 and it is "adequate" only if it is suitable, proportionate, or sufficient de-
31 The court below noted, in passing, that Baroni did not appeal the SPBR's decision to
dismiss his administrative appeal on grounds that the SPBR lacked jurisdiction. Journal Entry,
p. 2, ¶ 3. The court below did not base its decision, even in part, on Baroni's failure to engage inthe "vain act" of pursuing an appeal of that SPBR decision. This makes sense, because Baroni
had no obligation to pursue an appeal to the SPBR in the first place. The law does not require a
party to perform a "vain act" to satisfy a duty to exhaust administrative remedies. "A vain act isdefined in the context of lack of authority to grant administrative relief and not in the sense oflack of probability that the application for administrative relief will be granted." Gates Mills In-
vestment Co. v. Pepper Pike, 59 Ohio App.2d 155, 167, 392 N.E.2d 1316, 1324 (1978), ap-
proved and followed in Nemazee v. Mt. Sinai Medical Center, 56 Ohio St.3d 109, 115, 564
N.E.2d 477, 483 (1990). Thus, a "vain act" occurs when an administrative body lacks the au-
thority to grant the relief sought and does not refer merely to the petitioner's probability of re-
ceiving the remedy. "The focus is on the power of the administrative body to afford the re-
quested relief, and not on the happenstance of the relief being granted," and therefore Baroni's"participation in [the SPBR's] administrative process would constitute a vain act ... if the ad-
ministrative body had no authority to grant the relief he sought." Nemazee v. Mt. Sinai Medical
Center, supra (emphasis in original). The record in this case shows that Baroni first approachedthe Appointing Authority directly and through its counsel in Columbus for relief on his requestfor compensation or restoration of the vacation leave he was forced to use up from the date hewas released to return to work until the date he was restored to ODMH's payroll. Supplement
to the Verified Complaint, Ex. C. When those requests fell on deaf ears, Baroni then sought
relief through an appeal to the SPBR. Baroni acted most reasonably by deferring commence-ment of this action in mandamus until the SPBR ruled against his position in the administrativeappeal. Given that the plain language of O.R.C. §§ 124.03 and 124.34 forecloses the availability
of an appeal to the SPBR from a decision to grant an application for reinstatement following a
period of involurntary disability separaiion and O.A.C. 123;1-30-04(I) itself-expressly restricts
appeals to the SPBR to those involving claims of "[a]n employee refused reinstatement" withoutany reference to any correlative right of appeal for any employee who disputes the conditions
under which an order of reinstatement is granted, Baroni lacked any "plain" and "adequate"
remedy at law.
32 Fischer v. Damm, 36 Ohio App. 515, 173 N.E. 449 (1930).
22
termined with reference to the purposes to be accomplished based on the facts involved.33
Moreover, a remedy is "adequate" only if it secures absolutely - and as a matter of riQht - relief
for the complaining party from the wrong perpetrated.34
A remedy is neither "plain" nor "adequate" if the available remedy does not itself
enforce, in some way, the performance of the particular duty enjoined upon the respondent in
some other legal proceeding or does not merely constitute a "remedy" that in the end saves the
relator from the wrongful loss of the relator's money.35 In other words, the "remedy" in the
course of the law must be one that affords relief with specific reference to the matter in contro-
versy and must be appropriate to the particular circumstances of the case.36 If the "remedy is not
"available" to the relator, it cannot be regarded as "plain" and "adequate."37 And recent authori-
ties38 have confirmed that no "remedy" can be labeled as "plain and adequate" when such a
"remedy" is not complete, beneficial, and speedy. Thus, an action in mandamus may not be
barred by a relator's failure to perform vain, onerous, and expensive acts 39
33 State ex rel. Trusz v. Village of Middleburg Heights, 112 Ohio App. 87, 163 N.E.2d
778 (1960).
34 State ex rel. Phelps v. Gearheart, 104 Ohio St. 422, 135 N.E. 606 (1922); Fischer v.
Damm, supra.
35 State ex rel. Paul Stutler, Inc. v. Yacobucci, 108 Ohio App. 41, 160 N.E.2d 300 (1958),
aff'd, 169 Ohio St. 20, 157 N.E.2d 357 (1959).
36 State ex rel. Price v. Huwe, 103 Ohio St. 546, 134 N.E. 456 (1921).
37 State ex rel: Juhlman v. Conners, 122 Ohio St. 355, 171 N.E. 589 (1-930).
38 State ex rel. Arnett v. Winemiller, 80 Ohio St.3d 255, 685 N.E.2d 1219 ( 1997); State ex
rel. Crabtree v. Franklin County Board of Health, 77 Ohio St.3d 247, 673 N.E.2d 1281 (1997).
39 State ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375, 160 N.E.2d
1 (1959).
23
For reasons already detailed above, Baroni was entitled to reinstatement as of
December 28, 2009, and certainly no later than January 10, 2010, or February 9, 2010, by opera-
tion of O.R.C. § 124.32(B) and O.A.C. 123:1-30-04(C), all without having to take any action
against the Appointing Authority through an appeal to the SPBR, particularly in light of the fact
that such appeals are limited to claims that an appointing authority denied an application for re-
instatement and no such order denying Baroni's application ever was issued. Instead, the claim
in this case is that the Appointing Authority had a clear legal duty established by statute to rein-
state Baroni or by proper interpretation or application of a 60-day deadline appearing in O.A.C.
123:1-30-04(A), and the Appointing Authority's failure to do so in a timely fashion has had
consequences on ODMH, requiring the Director of ODMH to remit compensation to Baroni
and/or to reinstate part or all of his used vacation leave.
This Court should bear in mind that the court below disposed of Baroni's verified
complaint upon a motion to dismiss. This Court's review of the decision of the court below,
therefore, is de novo.
The motion to dismiss could be granted only if the court below was satisfied
based strictly on a review of the pleadings that Baroni's verified complaint failed to state a claim
upon which relief could be granted. To that end, of course, all reasonable inferences to be drawn
from the state of the pleadings at the time this case was dismissed were to have been drawn in
Baroni's favor. It is respectfully submitted, then, that it is more than just "possible" that Baroni
would have been able to convince the court below upon consideration of his claims on the merits
that he was entitled to part or all of his back pay andJor restoration of part or all of his vacation
leave for the period of December 28, 2009, through February 13, 2010. After all, the verified
complaint included an allegation that Baroni met all of the qualifications to return to duty as of
24
December 28, 2009, and the Appointing Authority failed to reinstate Baroni in a timely fashion
"by operation of ... Chapter 124 of the Ohio Revised Code ... and/or Part 123:1 of the Ohio
Administrative Code" and therefore failed to "discharge duties specifically enjoined upon them"
when they did not remit "back pay to Baroni for the period of December 28, 2009, through Feb-
ruary 13, 2010, and/or [restore] all vacation leave credit charged against Baroni's vacation leave
account for the same period."
A motion to dismiss tests the sufficiency of a complaint 40 In considering
ODMH's motion, therefore, the court below was required to accept all material allegations of
Baroni's verified complaint as admitted and to construe all reasonable inferences in favor of
Baroni.41 In order for the dismissal of Baroni's verified complaint to be sustained, then, this
Court would have to conclude, upon review de novo, that it appeared "beyond doubt" that Baroni
could prove no set of facts entitling him to recovery.42 Specifically with reference to cases seek-
ing relief in mandamus, a complaint "is not subject to dismissal ... if the complaint alleges the
existence of a legal duty by a respondent and the lack of an adequate remedy at law for the rela-
tor with sufficient particularity to put the respondent on notice of the substance of the claim(s)
40 State ex rel., Hanson v. Gernsey County Board of Commissioners, 65 Ohio St.3d 545,
548, 605 N.E.2d 378, 381, 1992-Ohio-73.
41 State ex rel., Humrnel v. Sadler, 96 Ohio St:3d-84, 86, 771 N.E.2d 853-, 856, 2002-
Ohio-3605, ¶ 20; State ex rel., Edwards v. Toledo City School District Board of Education, 72
Ohio St.3d 106, 108-09, 647 N.E.2d 799, 802, 1995-Ohio-251.
42 O'Brien v. University Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327
N.E.2d 753, 755-56 (1975) (syllabus).
25
being asserted against it, and it appears that a plaintiff might prove some set of facts entitling him
to relief."43
The Appointing Authority focused its intention entirely on O.A.C. 123:1-30-
04(A) in justifying the actions taken on Baroni's application for reinstatement. Administrative
rules do not exist in a vacuum or independently of the statute(s) they are meant to amplify. No
administrative official may promulgate administrative rules that are inconsistent with the statu-
tory framework under which those rules were promulgated in the first place.
The history of Part 123:1 of the Ohio Administrative Code shows that the Direc-
tor of Administrative Services promulgated O.A.C. 123:1-30-04(A) specifically under the au-
thority of O.R.C. § 124.09 to "amplify" O.R.C. § 124.32. Consequently, the Director of Admin-
istrative Services could not adopt a rule that would administratively extend the 30-day deadline
imposed by the General Assembly by operation of O.R.C. § 124.32(B). Hence, upon applying
generally accepted principles of statutory construction and acting in such a manner as to protect
Baroni's constitutionally guaranteed property right to avail himself of the safeguards afforded
by O.R.C. § 124.32(B), it follows that the court below should not have concluded that Baroni
could prove no set of facts entitling him to recovery. After all, the facts alleged in Baroni's veri-
fied complaint clearly establish, at a minimum, that the Appointing Authority even failed to
comply with the 60-day deadline imposed by the administrative rule, much less the more de-
manding 30-day deadline fixed by the statute.
Baroni's action in mandamus seeks to require defendants-respondents to remit all
compensation and/or vacation leave benefits that had been denied to him when the Appointing
43 Talwar v. State Medical Board, 156 Ohio App.3d 485, 487, 806 N.E.2d 1009, 1010,
2004-Ohio-1301, ¶ 4.
26
Authority unilaterally chose not to reinstate Baroni by December 28, 2009, or by January 10,
2010, or by February 9, 2010, at the very latest. As such, Baroni's verified complaint clearly
stated a claim upon which relief could be granted under long established principles of Ohio law
and therefore it was error for the court below to sustain the motion to dismiss that verified com-
plaint.
For all of the foregoing reasons, therefore, Baroni respectfully submits that the
court below erred in concluding that his verified complaint "failed to establish that he has a
clear legal right to the relief requested" in his mandamus action.
Baroni therefore asks this Court, upon review de novo, to reverse the judgment
entry of the Ninth Appellate Judicial District and remand this case with instructions ;either to
enter suminary judgment in favor of Baroni or to conduct further proceedings upon Baroni's
motion for summary judgment or to schedule a process by which the parties may submit their
evidence to the court below on the merits of the claim asserted by Baroni in his original action
in mandamus. Baroni further asks that this court tax the costs of this appeal against defendants-
respondents and that this Court provide for such other and further relief as may be warranted
upon the record of this cause.
S. DAVID WORHATCHLaw Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224-1406
330-650-6000(Akron/Kent)330-656-2300 (Cleveland)330-650-2390 (Facsimile)[email protected]
Counsel for Plaintiff-Relator-Appellant
0031174
27
CERTIFICATE OF SERVICE
I hereby certify that on this /J day of , 2011, a copy of
the foregoin was duly served on counsel for defendants-respondents [method(s) of service
checkedJ ^y ordinary U. S. Mail, first-class postage prepaid, addressed to Komlavi Atsou,
Esq., Assistant Attorney General, Employment Law Section, Office of the Attorney General of
Ohio, 30 East Broad Street, 23rd Floor, Columbus, Ohio 43215 (Facsimile Telephone No. 614-
752-4677), o by facsimile transmission to the facsimile telephone number of counsel referenced
above, o by delivery in hand to the offices of counsel at the addresses referenced above, o by
electronic transmission via e-mail addressed to the counsel for defendants-respondents, identified
above, at [email protected], and/or o by the following alternate means of ser-
vice:
g^ d
S. DAVID WORHATCHLaw Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224-1406
330-650-6000 (Akron/Kent)330-656-2300 (Cleveland)330-650-2390 (Facsimile)[email protected]
Counsel for Plaintiff-Relator-Appellant
0031174
28
APPENDIX 1
Journal Entry
Ohio Court of Appeals, Ninth Appellate Judicial District
James E. Baroni v. David Colletti, et al.
Case No. 25334
February 11, 2011
STATE OF OHIO )j^?r"- r^fI'c;ALSi^-rSu, vi(:;ivtlt N
COUNTY OF SUMMIT )^j4
JAMBS E. BARONI &;J;J'M;T CGUNTYCLERK OF COURTS
Relator
V.
DAVID COLLETTI, et al.
Respondents
IN THE COURT OF APPEALSNINTH JUDICIAL DISTRICT
C.A. No. 25334
JOURNAL ENTRY
James E. Baroni worked as a building maintenance superintendent at the Ohio
Department of Mental Health's Northcoast Behavioral Healthcare facility. He left his
position because of an involuntary disability separation. In December 2009, Mr. Baroni
applied for reinstatement to his position. His employer asked for an independent
medical examination and then held a pre-reinstatement hearing. Ultimately, he was
reinstated in February 2010. From the end of December, when his disability payments
ended, through the date of his reinstatement, Mr. Baroni used accumulated vacation
leave so that he would continue to receive income. Mr. Baroni has filed this complaint
seeking an order directing his employer to remit back-pay and/or credit him with the
accumulated vacation time he used from December 28, 2009, through February 13,
2010. Because Mr. Baroni did not have a clear legal right to be paid, and his einployer
d'ad not have a clear legal duty to pay him, his complaint is dismissed.
Background
Mr. Baroni held the position of Building Maintenance Superintendent 1 at the
Northcoast Behavioral Healthcare facility in Summit County. Northcoast is operated by
the Ohio Departtnent of Mental IIealth. David Colletti is the Director of Northcoast.
JOURNAL ENTRY, C..A. No. 25334Page 2 of 6
Although the complaint does not explain what happened, there is no question that
Mr. Baroni served a period of involuntary disability separation. Ultimately, his doctor
provided him with a letter certifying that he was released to return to work on December
28, 2009. On December 10, 2009, Mr. Baroni applied for reinstatement, with a copy of
his doctor's certification attached.
In January 2010, the employer referred Mr. Baroni for an independent medical
examination. . Following the exam, the employer held a pre-reinstatement hearing on
February 4, 2010. The next day, the employer notified Mr. Baroni that his December
1 10, 2009, reinstatement request had been granted. He was reinstated to his position as
Building Maintenance Superintendent 1 effective February 14, 2010.
Mr. Baroni appealed this decision to the State Personnel Board of Review.
Although he had been reinstated, he sought back pay and/or return of vacation time
from December 28, 2009, through February 13, 2010. The Administrative Law Judge
recommended dismissal because the Ohio Administrative Code does not grant
jurisdiction to the Board to review the reinstatement of an employee, only the denial of
reinstatement. Mr. Baroni did not appeal that decision.
Mr. Baroni then filed his complaint in this Court seeking a writ of mandamus.
Mandamus
"For a writ of mandamus to issue, a relator must demonstrate that (1) the relator
has a clear legal right to the relief prayed for,.(2) respondent is under a corresponding
clear legal duty to perform the requested acts, and (3) relator has no plain and adequate
legal remedy." State ex rel. Serv. Emp. Internatl. Union, Dist. 925 v. State Emp.
Relations Bcl,, 81 Ohio St.3d 173, 176 (1998).
JOURNAL ENTRY, C.A. No. 25334Page 3 of 6
To dismiss a complaint pursuant to Rule 12(B)(6) of the Ohio Rules of Civil
Procedure, it must appear beyond doubt from the complaint, after all factual allegations
are presumed true and all reasonable inferences are made in favor of Mr. Baroni, that he
can prove no set of facts warranting relief. State ex rel. Dehler v. Sutula, Judge, 74
Ohio St.3d 33, 34 (1995). Based on the allegations in the complaint, neither does Mr.
Baroni have a right to back pay, nor does his employer have a duty to remit back pay.
Dismissal under Rule 12(B)(6) is, therefore, appropriate.
Involuntary Disability Separation
Mr. Baroni's claim stemsfrom his reinstatement from his involuntary disability
separation. Section 123:1-30-01 of the Ohio Administrative Code explains the
involuntary disability separation as follows:
(A) An employee who is unable to perform the essential job duties of the
position due to a disabling illness, injury or condition may beinvoluntarily disability separated. An involuntary disability separationoccurs when an appointing autkioi•ity has received substantial crediblemedical evidence of the employee's disability and determines that theemployee is incapable of performing the essential job duties of theemployee's assigned position . due to the disabling illness, injury or
condition.
Subsection (E) of that provision provides general information about reinstatement.
Reinstatement Process
The reinstatement process is autlined in the Ohio Administrative Code. "An
employee may make a written request to the -appointingauthority -for reinstatement from
a disability separation." OAC 123i1-30-04(A). When an employee seeks reinstatement,
the employer "may require that an employee submit to medical or psychological
examinations for purposes of disability separation or a reinstatement from disability
separation. The appointing authority shall select one or more licensed practitioners to
JOURNAL ENTRY, C.A No. 25334Page 4 of 6
conduct the examinations ." OAC 123:1-30-03(A). "The appointing authority shall
notify the employee of its decision to approve or deny.the reinstatement request no later
than sixty days after it receives the employee's written request. " OAC 123:1-30-04(A).
Mr. Baroni's Claim
Mr. Baroni has not challenged his involuntary disability separation or his
reinstatement. His claim is based on his reading of the Ohio Administrative Code
provisions set forth above. In his coinplaint, he has alleged that Section 123:1-30-04(A)
created a right to employment effective on the date his doctor certified that he was
capable of returning to work, December 28, 2009. According to Mr. Baroni, once he
notified his employer that he was released to return to work on December 28, his
employer was obligated to return him to work on that date and, having failed to do that,
his employer is liable to him for back pay or restoring the accumulated vacation time he
used until the date of his reappointment.
Mr. Baroni's employer has read these provisions differently. It has taken the
position that, once Mr. Baroni applied for reappointment, it had to approve or deny the
application within 60 days. OAC 123:1-30-04(A). Mr. Baroni has argued that this
approach compromises his constitutionally protected property interest in resuming his
employment on the date certified by his doctor.
The language of the Ohio Administrative Code does not support Mr. Baroni's
position. Section 123:1-30-04(A) authori,zed Mr. Baroni to request reinstatement to his
former position. Along with his request, he submitted a letter from his treating
physician certifying that he was able to return to work. The reinstatement provision of
the Ohio Administrative Code, however, did not require Mr. Baroni's employer to
JOURNAL ENTRY, C.A. No. 25334Page 5 of 6
return him to his position on the date his doctor certified. Instead, the Code permits the
employer to require an employee to submit to a medical examination, as Mr. Baroni's
employer did. The language of the Code does not support Mr. Baroni's argument that
the employer may do this, but only witli the risk of being liable for the eniployee's
compensation while the examination takes place. Instead, the Code imposes only one
duty on the employer - to notify the eniployee of its decision no later than sixty days
after it receives the request for reappointment. OAC 123:1-30-04(A). Mr. Baroni's
employer notified him within sixty days of when it received his request for
reappointment, as required by Section 123:1-30-04(A).
The Ohio Administrative Code does not create a right to compensation starting
on the date that an involuntarily separated employee's physician certifies that the
employee is released to return to work. Mr. Baroni's argument that the Code creates
that right is not supported by the plain language of the provisions he has relied on.
Accordingly, considering the facts in the light most favorable to Mr. Baroni, the
complaint has failed to establish that he has a clear legal right to the relief requested or
that his employer has a clear legal duty to act, and the employer's motion to dismiss is
granted.
JOURNAL ENTRY, CA.. No. 25334Page 6 of 6
Conclusion
This case is dismissed.
Costs taxed to Mr. Baroni. The clerk of courts is hereby directed to serve upon
all parties not in default notice of this judgment and its date of entry upon the journal.
See Civ.R. 58(B).
Judge
Concur:Carr, J.Whitmore, J.
oupremE (Court of 0ljto
In re State of Ohio, ex rel. James E. Baroni
Plaintiff-Relator-Appellant,
V.
David Colletti, et al.,
Defendants-Respondents-Appellees.
Case No. 1 1- 0455
NOTICE OF APPEAL
ORAL ARGUMENT REQUESTED
ON APPEAL AS OF RIGHT FROM AN ORIGINAL ACTION COMMENCED IN THE
OHIO COURT OF APPEALS, NINTH APPELLATE JUDICIAL DISTRICT
CAsE No. 25334
CLRRK OF CqUR^SUPREM - ` " w .
D^^_=DDMAR 18 2011
Ci.ERK t^F';^OURTSUPREME CO UR7 nF ONi^
S. DAVID WORITATCH 0031174Law Offices of S. David Worhatch4920 Darrow RoadStow Ohio 44224--1406
330-650-6000 (Akron/Kent)330-656-2300 (Cleveland)330-650-2390 (Facsiniile)[email protected]
Counsel for Plaintiff-Relator-Appellant
PLEASE TAI{E NOTICE that Plaintiff-Relator-Appellant James E. Baroni,
through his undersigned counsel of record, hereby appeals to the Supreme Court of Ohio from
the February 11, 2011, journal entry of the Ohio Court of Appeals, Ninth Appellate Judicial Dis-
trict, dismissing his original action in mandamus, sub nom. James E. Baroni v. David Colletti, et
al., Case No. 25334. A copy of the journal entry of the court below is attached hereto as Ar-
PENDIX 1.
PLEASE TAKE FURTHER NOTICE pursuant to Sections 2(B)(2)(a)(i) and
2(B)(2)(a)(ii) of Article IV of the Ohio Constitution and Rules 2.l(A)(1) and 2.2(A)(1)(a) of the
Rules of Practice of the Supreme Court of Ohio that this case originated in the Court of Appeals,
that this case involves questions arising under the Constitution of the United States and the Ohio
Constitution, and that this appeal is taken as of right to secure de novo review of a journal entry
by which appellant's original action in mandamus was dismissed.
S. DAVID WORIIATCHLaw Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224-1406
330-650-6000 (Akron/Kent)330-656-2300 (Cleveland)330-650-2390 (Facsimile)[email protected]
0031174
Counsel for Plaintiff-Relator-Appellant
CERTIFICATE OF SERVICE
I hereby certify that on this 3 71Mkday of a4 , 2011, a copy of
the foregoing as duly served on counsel for defendants-respondents [method(s) of service
checked] ^5 by ordinary U. S. Mail, first-class postage prepaid, addressed to Komlavi Atsou,
Esq., Assistant Attomey General, Employment Law Section, Office of the Attomey General of
Ohio, 30 East Broad Street, 23rd Floor, Columbus, Ohio 43215 (Facsimile Telephone No. 614-
752-4677), o by facsimile transmission to the facsimile telephone number of counsel referenced
above, o by delivery in hand to the offices of counsel at the addresses referenced above, o by
electronic transmission via e-mail addressed to the counsel for defendants-respondents, identified
above, at [email protected], and/or o by the following alternate means of ser-
vice:
0
l D WORHATCHDAVILaw Offices of S. David Worhatch4920 Darrow RoadStow, Ohio 44224-1406
330-650-6000 (Akron/Kent)330-656-2300 (Cleveland)330-650-2390 (Facsimile)[email protected]
Counsel for Plaintiff-Relator-Appellant
0031174
2
