State ex rel. N. Olmsted Fire Fighters Assn. v. N. Olmsted - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. North Olmsted Fire Fighters Association,
Local 1267 of the International Association of Fire Fighters,
et al., Appellants and Cross-Appellees, v. City of North
Olmsted et al., Appellees and Cross-Appellants.
[Cite as State ex rel. N. Olmsted Fire Fighters Assn. v.
N. Olmsted (1992), Ohio St.3d .]
Public employment -- Vacation leave -- National Guard service
qualifies as prior state service under R.C. 9.44 -- R.C.
9.44 requires a current public employer to treat
qualifying prior state service as if it were service with
that employer, such that the value of the service, if any,
is determined by the current employer's vacation leave
policy -- R.C. 2305.07 limits the actionability of R.C.
9.44 claims.
(No. 90-2191 -- Submitted July 8, 1992 -- Decided
September 2, 1992.)
Appeal and Cross-Appeal from the Court of Appeals for
Cuyahoga County, No. 58968.
Appellant Richard A. Smith is a Captain in the North
Olmsted Fire Department and a member of the bargaining unit
represented by appellant North Olmsted Fire Fighters
Association ("union"). Smith joined the fire department as a
full-time employee in August 1965. In July 1988, he asked that
appellees, city of North Olmsted and its mayor ("city"), credit
him with additional vacation leave in recognition of his prior
service in the Ohio Air National Guard ("National Guard").
Smith served on active and inactive duty in the National
Guard for approximately five years and nine months during 1957
through 1962. He claimed that his military duty entitled him
to fifteen weeks more vacation by operation of R.C. 9.44 (prior
state service of city employee to be counted for the purpose of
computing vacation leave). The city disagreed and refused to
reassess his vacation leave. Smith filed a grievance, but the
city declined to participate in arbitration. The parties now
agree that the collective bargaining agreement does not
specifically cover vacation leave attributable to prior state
service.
In the Court of Appeals for Cuyahoga County, Smith and his
union sought a writ of mandamus to order that North Olmsted

count Smith's National Guard service in determining his
vacation leave. They argued that R.C. 9.44 required
recognition of all this service, regardless of whether Smith
was on active or inactive duty. They also urged the court not
to apply laches or the six-year statute of limitations in R.C.
2305.07.
On cross-motions for summary judgment, the court of
appeals granted the writ, but only to compel "prior service
vacation credit for the time periods [Smith] actually worked
[in the National Guard], that is, during basic training, one
weekend per month, two weeks per year, and ten months in
France." The court held that since members of the state
military service are unclassifed civil servants under R.C.
124.11(A)(6), Smith's tenure in the National Guard is prior
state service under R.C. 9.44. However, because the court read
the word "service" in R.C. 9.44 to refer only to employees who
actually perform work, as opposed to employees who are merely
available for work, the court did not grant relief for Smith's
inactive duty.
With respect to R.C. 2305.07, the court of appeals held
that "a new and distinct claim" arose each year Smith was not
credited for his prior state service. The court, therefore,
ordered that Smith's National Guard service be credited toward
vacation leave only for the period commencing on December 18,
1983, six years before Smith filed his complaint for a writ of
mandamus. The court also rejected North Olmsted's laches
defense, holding that the city had not demonstrated material
prejudice from Smith's delay in asserting his claim.
Smith and the union appeal the decision not to count
Smith's five years and nine months in the National Guard as
five years and nine months of full-time state employment. They
also appeal application of the six-year statute of
limitations. By cross-appeal, North Olmsted challenges the
decision to allow Smith any prior service credit and reasserts
laches.

Joseph W. Diemert, Jr. & Associates Co., L.P.A., Joseph W.
Diemert, Jr. and Thomas M. Hanculak, for appellants and
cross-appellees.
Michael R. Gareau, Director of Law, and James M. Dubelko,
for appellees and cross-appellants.

Per Curiam. This case presents the following questions
for our review. First, is service in the National Guard prior
state service for the purpose of R.C. 9.44? Second, does R.C.
9.44 impose a duty for North Olmsted to count Smith's five
years and nine months of National Guard service as five years
and nine months of full-time prior state service toward his
vacation leave? Third, did the court of appeals err by
applying the six-year statute of limitations? Fourth, did the
court of appeals err by rejecting laches as a defense?
For the reasons that follow, we hold that (1) National
Guard service qualifies as prior state service under R.C. 9.44;
(2) R.C. 9.44 requires a current public employer to treat
qualifying prior state service as if it were service with that
employer, such that the value of the service, if any, is
determined by the current employer's vacation leave policy; (3)

R.C. 2305.07 limits the actionability of R.C. 9.44 claims; and
(4) North Olmsted did not prove Smith's delay caused the
material prejudice required for laches to apply. Accordingly,
we affirm in part and reverse in part the court of appeals'
judgment. Moreover, because a material fact -- the conditions
under which North Olmsted fire fighters accrued vacation leave
during the period Smith may be entitled to relief -- has not
been resolved, we remand this case for further proceedings.
Prior State Service
R.C. 9.44, at all times relevant to this case, has
provided:
"[A] person employed, other than as an elective officer,
by the state or any political subdivision of the state, earning
vacation credits currently, is entitled to have his prior
service with any of these employers counted as service with the
state or any political subdivision of the state, for the
purpose of computing the amount of his vacation leave. The
anniversary date of his employment for the purpose of computing
the amount of his vacation leave, unless deferred pursuant to
the appropriate law, ordinance, or regulation, is the
anniversary date of such prior service." See Sub.H.B. No. 202
(133 Ohio Laws, Part II, 1917), Am.Sub.H.B. No. 178 (142 Ohio
Laws, Part II, 2564, 2565), and Am.H.B. No. 552 (143 Ohio Laws,
Part IV, 5670, 5671).
North Olmsted argues that "service," as used in R.C. 9.44,
was not intended to include employment in the National Guard
because (1) military service is not mentioned as an example of
prior state service in the Bill Analysis by the Legislative
Service Commission (Comment to proposed Sub.H.B. No. 202 [R.C.
9.44]), and (2) members of the National Guard do not accumulate
vacation leave and, therefore, have no vacation benefits to
"bring with them" to a subsequent public employer. We are not
persuaded by the city's first argument because the comment does
not refer to any specific form of employment by the state. We
also reject its second argument because the city misreads State
ex rel. Clark v. Greater Cleveland Regional Transit Auth.
(1990), 48 Ohio St.3d 19, 23, 548 N.E.2d 940, 943, and
incorrectly claims that R.C. 9.44 operates to preserve accrued
vacation benefits, not just service.
Furthermore, the court of appeals' conclusion that members
of the National Guard are state employees is inescapable. R.C.
124.11(A)(6) plainly provides that all officers and enlistees
in the state military are unclassified Ohio civil servants.
Therefore, we also hold that National Guard duty is prior state
service for the purpose of R.C. 9.44.
Value of Prior State Service
Smith and his union argue that service in the National
Guard, whether inactive or active duty, counts as full-time
state employment for the purpose of R.C. 9.44. They rely
principally on 1981 Ohio Atty.Gen.Ops. No. 81-066, which states
as a syllabus:
"A full-time state employee who was a member of the Ohio
National Guard serving on duty one weekend per month and two
weeks out of every year is entitled to have one year prior
service credit for each year of service with the Ohio National
Guard for the purpose of computing the amount of his vacation
leave pursuant to [former] R.C. 121.161. * * *"

While not binding, the analysis in the Attorney General
opinion is persuasive. However, the Attorney General did not
draw the conclusion in the syllabus from R.C. 9.44; he instead
consulted former R.C. 121.161, which provided for state
employee vacation accrual in essentially the same way that R.C.
124.13 does now, to determine the conditions under which state
employees became eligible for vacation. State employees
accrued vacation as follows:
"['] Each full-time state employee, including full-time
hourly-rate employees, after service of one year with the
state, or any political subdivision of the state, shall have
earned and will be due upon the attainment of the first year of
employment, and annually thereafter, eighty hours of vacation
leave with full pay. * * *[']" (Emphasis sic.) 1981 Ohio
Atty.Gen.Ops. No. 81-066, at 2-272 to 2-273, quoting former
R.C. 121.161. See, also, R.C. 124.13.
R.C. 121.161 established full-time state employment as a
condition for becoming eligible for vacation, but did not
specify whether the year preceding such full-time employment
was also required to be on a full-time basis. Thus, the
Attorney General read the statute as granting vacation leave to
a full-time state employee after one year of either part-time
or full-time service. Having decided that the statute treated
part-time and full-time prior state service the same, the
Attorney General justifiably concluded that a year of National
Guard service was worth a year of vacation, without having to
reach whether the National Guard service was full-time or
part-time.
Smith and his union analyze R.C. 9.44 independently of the
vacation accrual statute in the Attorney General's opinion, but
the opinion does not permit this. The opinion refers to R.C.
9.44 as generally reinforcing the obligation in R.C. 121.161 to
count qualifying prior service, but not as determining the
current vacation eligibility of an employee with such prior
service. Rather, the value of such prior service, if any, was
determined by the current employer's vacation accrual
provisions, which, for the opinion, meant R.C. 121.161. Thus,
the opinion states:
"R.C. 9.44, read in conjunction with * * * R.C. 121.161,
specifically preserves prior service credit for computing
vacation leave for full-time * * * state employees. Pursuant
to R.C. 9.44, prior service with the state * * * is to be
applied for purposes of computing the rate at which vacation
leave is accrued under [former] R.C. 121.161." 1981 Ohio
Atty.Gen.Ops. No. 81-066, at fn. 2.
The plain language of R.C. 9.44 also prevents the analysis
Smith and his union advocate. By requiring that prior state
service be "counted as service" with a subsequent municipal
employer, R.C. 9.44 requires current city employers to treat a
qualifying employee's prior state service as if it were service
for the city. This means that a qualifying employee should
receive, by virtue of his prior state service, the same
vacation benefits he would have received had he been
continuously employed by the current city employer. Accord
Bill Analysis by the Legislative Service Commission (Purpose,
and Content and Operation to Sub.H.B. No. 202 [R.C. 9.44]).
Thus, consistent with the Attorney General opinion, the

vacation to which the former state employee is entitled depends
not on R.C. 9.44, but on how the city allocates vacation leave
to its employees.
Accordingly, since the enactment of R.C. 9.44 in 1970,
North Olmsted has had a duty to account for Smith's prior state
service in the National Guard in computing his vacation leave,
but only to the extent that such service would have satsified
the conditions under which a North Olmsted fire fighter accrued
vacation during that period. For example, if fire fighters
accrued vacation leave based on years or months of employment
with the fire department, regardless of work hours, then
Smith's five years and nine months in the National Guard would
have earned him upon hire, as he and his union argue, vacation
leave from the city equal to five years and nine months.
However, if fire fighters must also have worked on a full-time
basis to qualify for vacation, then, as the city argues, Smith
must have worked those full-time hours in the National Guard
for his prior service to be considered in calculating his
vacation as a fire fighter. Finally, if fire fighters accrued
vacation based on hours actually worked, then Smith could claim
vacation, as the court of appeals concluded, for the time he
actually reported for National Guard duty.
In 1970 and afterward, Smith has apparently accrued
vacation as provided either by ordinance or union contract.
The record, however, does not contain the text of these
ordinances or contracts, and does not otherwise specify the
conditions that made this accrual possible. Without evidence
establishing whether fire fighters accrued vacation based (1)
only on time in the job, which would be consistent with
appellants' position, (2) on time in the job plus hours of
work, which would be consistent with appellees' position, or
(3) only on hours at the job, which would be consistent with
the court of appeals' position, the value of Smith's National
Guard service, if any, cannot be determined or reviewed for
compliance with R.C. 9.44.
Rather than rely solely on R.C. 9.44, the court of appeals
should have evaluated Smith's prior state service in the
National Guard under North Olmsted's vacation accrual policy to
determine if Smith's National Guard service satisfied whatever
conditions the policy might have imposed for vacation
eligibility. This part of the judgment below, therefore, must
be reversed.
The cause must also be remanded on this issue because the
court of appeals disposed of this case on cross-motions for
summary judgment. Summary judgment may be granted only if the
material facts are established and not in controversy. See
Civ.R. 56(C). Here, no evidence establishes the conditions
under which fire fighters accrued vacation since Smith's hire.
Without this evidence, the court of appeals could not conclude
which side to this dispute was entitled to judgment as a matter
of law.
Statute of Limitations
The court of appeals held the statute of limitations in
R.C. 2305.07 applied to claims for prior service credit under
R.C. 9.44. R.C. 2305.07 provides:
"* * * [A]n action upon a contract not in writing, express
or implied, or upon a liability created by statute other than a

forfeiture or penalty, shall be brought within six years after
the cause thereof accrued."
Smith and his union argue that limiting the actionability
of R.C. 9.44 claims to six years is unfair to public employees
who may be unaware of the statute. The same argument could be
made, however, to prevent the effect of any statute of
limitations. Moreover, at least two other courts of appeals
have already held R.C. 2305.07 applicable to employment
disputes involving R.C. 9.44. See State ex rel. Clark v.
Greater Cleveland Regional Transit Auth. (Sept. 12, 1988),
Cuyahoga App. No. 53073, unreported, 1988 WL 112410, affirmed
(1990), 48 Ohio St.3d 19, 548 N.E.2d 940; State ex rel. Caspar
v. Dayton (Apr. 24, 1989), Montgomery App. No. 11103,
unreported, 1989 WL 43076, affirmed in part and reversed in
part (1990), 53 Ohio St.3d 16, 558 N.E.2d 49. We see no reason
why these holdings should not be followed.
The court of appeals relied on State ex rel. Madden v.
Windham Exempted Village School Dist. Bd. of Edn. (1989), 42
Ohio St.3d 86, 537 N.E.2d 646, to also hold that a new cause of
action arose each year that North Olmsted failed to account for
Smith's National Guard service in computing his vacation
leave. In Madden, we allowed a writ of mandamus to place a
teacher on sequentially higher steps in her salary schedule,
but only for the six years preceding her complaint. We
rejected the argument that the teacher's cause of action
accrued when she was first placed on the wrong salary step
seven years earlier and held that a "separate and distinct"
claim arose each time the teacher was not placed at the right
salary level. Id. at 90, 537 N.E.2d at 649.
Arguing that Smith's cause of action is now completely
barred because it became actionable in 1970 when R.C. 9.44 was
enacted, North Olmsted urges us to distinguish Madden on the
ground that fire fighters are not on year-to-year contracts as
was the teacher in that case. However, Smith appears to accrue
vacation on an annual basis, which suggests that he, like the
teacher in Madden, acquires a new cause of action each year.
Moreover, in Welch v. Lima (1950), 89 Ohio App. 457, 46 O.O.
268, 102 N.E.2d 888, which the city cites to establish that
R.C. 2305.07 (formerly, G.C. 11222) generally applies to fire
fighter claims for withheld portions of their salary, the Court
of Appeals for Allen County embraced the theory that a new
cause of action arose upon each incomplete payment. The court
held:
"[I]t is apparent that a cause of action in favor of the
[fire fighter] for the amounts withheld accrued each month as
the monthly installments of salary became due in accordance
with the terms of the salary ordinance, and that, as this
action was not commenced until [twelve years after the last
installment was due], the causes of action for all the items of
salary withheld are barred by the provisions of Section 11222,
General Code * * *." Id. at 466, 46 O.O. at 272, 102 N.E.2d at
894.
The court of appeals in Caspar implicitly agreed with the
Welch court by limiting relief in that case to six years before
the complaint was filed. Caspar, 53 Ohio St.3d at 17, 558
N.E.2d at 50. Thus, under the cited authority, the court of
appeals did not err by applying R.C. 2305.07 or by allowing

Smith to recover for the six years prior to his complaint.
Accordingly, we affirm that ruling.
Laches
Building on its argument that Smith's claim for vacation
became actionable in 1970, North Olmsted further argues that
Smith's complaint is barred by laches. The city maintains that
honoring Smith's vacation request "will have a direct impact on
[its] ability to budget for employee benefits." The city also
fears that "[o]ther employees with similar claims may be
waiting [for] resolution of this issue."
The elements of a laches defense are "(1) [unreasonable]
delay or lapse of time in asserting a right, (2) absence of an
excuse for such delay, (3) knowledge, actual or constructive,
of the injury or wrong, and (4) prejudice to the other party."
Kennedy v. Cleveland (1984), 16 Ohio App.3d 399, 403, 16 OBR
469, 472, 476 N.E.2d 683, 688. The court of appeals held that
the city had not proved the last of these elements because no
evidence in the record supported the allegation of "budgetary
prejudice." Where no evidence of material prejudice is
presented, we have said that a court of appeals properly
rejects laches as a defense. Madden, supra, 42 Ohio St.3d at
90, 537 N.E.2d at 649-650.
Courts have discretion to find laches in mandamus actions
irrespective of whether the writ is barred by the statute of
limitations. State ex rel. Moore v. Sanders (1981), 65 Ohio
St.2d 72, 74-75, 19 O.O.3d 264, 265-266, 418 N.E.2d 1339,
1340-1341. Here, however, we agree that North Olmsted has not
satisfied its burden of proof. We, therefore, also affirm the
court of appeals' rejection of the city's laches defense.
Conclusion
Because the court of appeals relied solely on R.C. 9.44 to
define the value of Smith's prior state service in the National
Guard and to grant summary judgment to Smith, we reverse the
court's decision on that issue and remand the cause for further
proceedings consistent with this opinion. The court's other
rulings are affirmed. On remand, the value of Smith's prior
state service is to be evaluated according to the North Olmsted
vacation accrual policy to the extent effective from December
18, 1983.
Judgment affirmed in
part, reversed in part
and cause remanded.
Moyer, C.J., Sweeney, Holmes, Wright, H. Brown and
Resnick, JJ., concur.
Douglas, J., dissents.
Douglas, J., dissenting. I respectfully dissent. I
agree with the analysis, by the court of appeals, of the issues
now before us. Accordingly, I would affirm the judgment of the
court of appeals in all respects. Because the majority does
not do so, I respectfully dissent.