State ex rel. Reyna v. Natalucci-Persichetti - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. REYNA, APPELLANT, v. NATALUCCI-PERSICHETTI, DIRECTOR,
APPELLEE.
[Cite as State ex rel. Reyna v. Natalucci-Persichetti (1998), ___ Ohio St.3d ___.]
Mandamus to compel Ohio Department of Youth Services to correct relator's
employment records by crediting him for his previous employment with the
state's political subdivisions, to grant him longevity pay, a monetary sum in
lieu of accrued, unused vacation credit, and costs -- Court of appeals does
not commit error by issuing a limited writ of mandamus and by not granting
all of the relief requested by relator, when.
(No. 98-45 -- Submitted July 8, 1998 -- Decided September 23, 1998.)
APPEAL from the Court of Appeals for Franklin County, No. 97APD03-350.

The Ohio Department of Youth Services ("DYS") employed appellant, Don
W. Reyna, from December 1989 to March 1996. When DYS hired Reyna, it
credited him with two years, two hundred eighty-seven days of prior public service
based on the Department of Administrative Services' ("DAS's") computerized
printout of Reyna's employment history with the state. DYS did not credit Reyna
for his previous employment with the state's political subdivisions, including his
employment with Franklin County. According to Reyna, when he was hired by
DYS, he raised the issue of service credit for computing his vacation leave, but a
DYS employee advised Reyna that he would not receive credit for his prior county
employment. In March 1996, Reyna transferred to the Department of
Rehabilitation and Correction and learned that DYS had erroneously failed to
credit him with the correct amount of prior service.

In 1997, Reyna filed a complaint in the Court of Appeals for Franklin
County. He requested a writ of mandamus to compel appellee, DYS Director
Geno Natalucci-Persichetti, to correct Reyna's employment records by crediting

him with thirteen years, two hundred eighteen days of additional prior service, pay
Reyna $25,219.20 for salary and vacation he was denied because Natalucci-
Persichetti failed to credit him with all of his prior service, and award him interest
and costs. Natalucci-Persichetti filed an answer, and the parties submitted
evidence and briefs. Reyna introduced no evidence or argument that he would
have elected to be paid for his accrued and unused vacation leave under the
applicable version of R.C. 124.1341 either when he was hired by DYS or when he
transferred to another state agency in 1996. Reyna also did not introduce any
evidence that his vacation leave exceeded the three-year accrual maximum
specified in that statute.

The court of appeals granted a writ of mandamus to compel Natalucci-
Persichetti to credit Reyna with an additional 14.08 years of service that DYS had
failed to credit Reyna when he was hired in December 1989. The court of appeals,
however, denied Reyna's requests for longevity pay, for a monetary sum in lieu of
vacation credit, and for interest. The court of appeals also refused to award Reyna
his costs.

This cause is now before the court upon an appeal as of right.
__________________

Blaugrund, Herbert & Martin, Inc., and John W. Herbert, for appellant.

Betty D. Montgomery, Attorney General, and Winston M. Ford, Assistant
Attorney General, for appellee.
__________________

Per Curiam. Reyna asserts in his propositions of law that the court of
appeals erred in failing to grant him longevity pay, a monetary sum in lieu of
accrued, unused vacation credit, and costs. For the reasons that follow, we hold

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Reyna's contentions to be meritless and affirm the judgment of the court of
appeals.

Reyna contends in his first proposition of law that the court of appeals erred
in denying longevity pay to which he is entitled pursuant to former R.C. 124.181.

Former R.C. 124.181, in effect at the time DYS hired Reyna, provided:

"(A) Except as provided in division (M) of this section, any employee paid
under schedule A or B of section 124.15 or under schedule E-1 of section 124.152
of the Revised Code is eligible for the pay supplements provided herein upon
application by the appointing authority substantiating the employee's
qualifications for the supplement and with the approval of the director of
administrative services except as provided in division (E) of this section.

" * * *
"(D)

The director shall, by rule, establish standards regarding the
administration of this section.

"(E) Except as otherwise provided in this division, beginning on the first
day of the pay period within which the employee completes five years of total
service with the state government or any of its political subdivisions, each
employee in positions paid under salary schedules A and B of section 124.15 or
under salary schedule E-1 of section 124.152 of the Revised Code shall receive an
automatic salary adjustment equivalent to two and one-half per cent of the
classification salary base, to the nearest whole cent. Each employee shall receive
thereafter an annual adjustment equivalent to one-half of one per cent of his
classification salary base, to the nearest whole cent, for each additional year of
qualified employment until a maximum of ten per cent of the employee's
classification salary base is reached. The granting of longevity adjustments shall
not be affected by promotion, demotion, or other changes in classification held by

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the employee, nor by any change in pay range for his class. Longevity pay
adjustments shall become effective at the beginning of the pay period within
which the employee completes the necessary length of service. Time spent on
authorized leave of absence shall be counted for this purpose. * * *" (Emphasis
added.) (143 Ohio Laws, Part IV, 5702-5703.)

Former Ohio Adm.Code 123:1-37-03, effective at the time Reyna was hired
by DYS, provided:

"Those employees who have completed a minimum of five years of total
service with the state or any of its political subdivisions shall receive the longevity
pay supplement which shall be a percentage equal to one-half of one percent for
each year of such service. This percentage shall be an automatic pay supplement
administered by the Department of Administrative Services, and shall be
applicable to the entire pay period in which that date occurs. A maximum
accumulation of ten percent shall be applicable after twenty years of total service."
(Emphasis added.)

As the court of appeals correctly held, the foregoing provisions required
DAS to administer the longevity pay supplements provided by former R.C.
124.181(E). Reyna argues that the "except as provided in division (E) of this
section" clause in former R.C. 124.181(A) obviated the necessity of a formal
application and approval of the Director of Administrative Services before receipt
of longevity pay. But former R.C. 124.181(D) specifically authorized the Director
of Administrative Services to promulgate rules establishing standards regarding
administration of the R.C. 124.181 pay supplements, including the longevity pay
provisions of former R.C. 124.181(E). Pursuant to this authority, the director
issued Ohio Adm.Code 123:1-37-03, which vests DAS with the duty to administer
longevity pay supplements.

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Our conclusion comports with the plain language of former R.C. 124.181,
which did not, as Reyna asserts, specify that the appointing authority administer
the automatic longevity pay supplement. The paramount consideration in
construing statutes is legislative intent, which is determined by reviewing the
statutory language. State ex rel. Sinay v. Sodders (1997), 80 Ohio St.3d 224, 227,
685 N.E.2d 754, 758. The language of former R.C. 124.181 indicates the intent of
the General Assembly to bestow the authority to administer pay supplements on
DAS.

In addition, former Ohio Adm.Code 123:1-37-03 does not conflict with
former R.C. 124.181. Instead, the rule was promulgated pursuant to the statute
and was reasonable and consistent with the statute's provisions. State ex rel.
Celebrezze v. Natl. Lime & Stone Co. (1994), 68 Ohio St.3d 377, 382, 627 N.E.2d
538, 542 ("[A]n administrative rule that is issued pursuant to statutory authority
has the force of law unless it is unreasonable or conflicts with a statute covering
the same subject matter.").

Therefore, the court of appeals did not err in denying Reyna's claim for
longevity pay because he failed to join DAS as a respondent in his mandamus
action.

Reyna asserts in his second proposition of law that the court of appeals
erred by awarding him vacation credit instead of a monetary sum for his accrued,
unused vacation leave because of his right under R.C. 124.134(C) to liquidate this
leave when he transferred to the Department of Rehabilitation and Correction from
DYS in March 1996. R.C. 124.134(C) provides that "[i]n case of transfer of an
employee from one state agency to another, the employee may elect to be
compensated at the employee's current rate of pay for accrued and unused

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vacation leave at the time of transfer by the releasing agency or to retain the
accrued and unused vacation leave."

For the reasons that follow, however, Reyna's second proposition of law
lacks merit.

First, Reyna waived this issue by not claiming entitlement to the monetary
amount in lieu of vacation credit by virtue of the R.C. 124.134(C) election
provision in the court of appeals. See State ex rel. Quarto Mining Co. v. Foreman
(1997), 79 Ohio St.3d 78, 81, 679 N.E.2d 706, 709, quoting Goldberg v. Indus.
Comm. (1936), 131 Ohio St. 399, 404, 6 O.O. 108, 110, 3 N.E.2d 364, 367. By
not raising this issue below, Reyna denied Natalucci-Persichetti a meaningful
opportunity to respond to the issue by presenting evidence and argument in the
court of appeals. Id.

Second, Reyna introduced no evidence that he would have elected to cash
out his accrued, unused vacation credit either when he transferred to DYS or when
he transferred to the Department of Rehabilitation and Correction. In fact, Reyna
testified in his deposition that he was concerned about DYS properly crediting his
prior public service for purposes of vacation leave; he did not testify that he
wanted to liquidate such credit at that time.

Third, Reyna did not establish the monetary amount of his accrued, unused
vacation credit with certainty, which precludes extraordinary relief in mandamus.
State ex rel. Guerrero v. Ferguson (1981), 68 Ohio St.2d 6, 22 O.O.3d 98, 427
N.E.2d 515; see State ex rel. Crockett v. Robinson (1981), 67 Ohio St.2d 363, 21
O.O.3d 228, 423 N.E.2d 1099. Reyna merely contends on appeal that his vacation
credit is for approximately four hundred to five hundred hours of leave; he does
not claim that the evidence presented in the court of appeals established a sum
with the requisite certainty.2

6

Therefore, Reyna did not prove that the court of appeals erred by awarding
vacation credit rather than a monetary amount. Cf. State ex rel. Yudofsky v.
Cincinnati (1992), 81 Ohio App.3d 781, 783-784, 612 N.E.2d 390, 392
(Mandamus lies to compel respondents to compensate relator for his vacation
leave but, in the absence of applicable law or ordinance, the manner or form of
compensation is within the discretion of respondents.). Reyna did not introduce
any evidence that he lost any vacation credit by exceeding the three-year accrual
amount in R.C. 124.134(B).3

In his third proposition of law, Reyna asserts that the court of appeals erred
in failing to award him costs under Civ.R. 54(D). Civ.R. 54(D) grants trial courts
discretion to order that the prevailing party bear all or part of his or her own costs.
Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 555, 597 N.E.2d 153, 156.

The court of appeals did not abuse its discretion in refusing to award Reyna
the costs of his mandamus action. Denying costs to both parties can be
appropriate when neither party entirely prevails. See, generally, 10 Wright, Miller
& Kane, Federal Practice & Procedure (1998) 241-242, Section 2668, and Gooden
v. Neal (C.A.7, 1994), 17 F.3d 925, 935, construing the similarly worded
Fed.R.Civ.P. 54(d). While Reyna was partially successful in his mandamus
action, Natalucci-Persichetti prevailed on Reyna's claims for longevity pay and
liquidation of his accrued, unused vacation credit. The court of appeals' refusal to
award costs to Reyna does not demonstrate an unreasonable, arbitrary, or
unconscionable attitude. State ex rel. Crabtree v. Franklin Cty. Bd. of Health
(1997), 77 Ohio St.3d 247, 249, 673 N.E.2d 1281, 1283.

Based on the foregoing, the court of appeals did not commit any error by
issuing a limited writ of mandamus and not granting all of the relief requested by
Reyna. Accordingly, we affirm the judgment of the court of appeals.

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Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
FOOTNOTES:
1.
142 Ohio Laws, Part II, 2570-2571.
2.
For example, in Reyna's appellate brief, he states:

"Prior to initiating this litigation, counsel attempted to estimate the amount
of vacation leave Reyna was denied and believes he is owed 400 to 500 hours of
leave. Depending upon Reyna's leave balance when the additional time is added,
this much leave could easily push Reyna's balance over 600 hours."
3.
R.C. 124.134(B) provides:

"Except as otherwise provided in this section, employees granted leave
under this section shall forfeit their right to take or to be paid for any vacation
leave to their credit which is in excess of the accrual for three years. Such excess
leave shall be eliminated from the employees' leave balance. * * *"

8