[Cite as Malagisi v. Mahoning Cty. Commrs.,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

RICHARD MALAGISI ) CASE NO. 09 MA 150 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) BOARD OF MAHONING COUNTY ) COMMISSIONERS ) ) DEFENDANT-APPELLEE )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 06 CV 1477

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellant: Atty. John B. Juhasz 7081 West Boulevard, Suite 4 Youngstown, Ohio 44512

For Defendant-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Gina DeGenova Bricker Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: March 22, 2011

WAITE, P.J. -2-

{1} Appellant Richard Malagisi appeals the lower court’s decision affirming

the State Personnel Board of Review’s (“SPBR”) dismissal of his administrative

appeal. The administrative appeal, contesting the termination of his employment by

Appellee, Board of Mahoning County Commissioners (“Board”), was dismissed by

the SPBR for its lack of timely filing pursuant to Ohio Adm.Code 124-1-03(I).

{2} Appellant argues that the application of the thirty-day period for filing an

appeal, as set forth in Ohio Adm.Code 124-1-03(I), was incorrect. Appellant asserts

that he was a classified employee, and as such, could not be terminated without first

being served with a “removal order” pursuant to R.C. 124.34. Though Ohio

Adm.Code 124-1-03(A) provides only a ten-day period for filing an appeal after

delivery of a removal order, Appellant argues that the limitations period does not

begin to run until the issuance of the R.C. 124.34 removal order. The parties agree

that Appellant did not receive a R.C. 124.34 removal order.

{3} Appellant argues that since no R.C. 124.34 removal order was issued,

the limitations period of Ohio Adm.Code 124-1-03(A) has not yet begun to run.

Appellant thus contends that the SPBR should have been unable to dismiss his

appeal. The SPBR, however, applied the thirty-day limitations period of Ohio

Adm.Code 124-1-03(I), and dismissed Appellant’s appeal on that basis. While Ohio

Adm.Code 124-1-03(A) requires a R.C. 124.34 removal order, Ohio Adm.Code 124-

1-03(I) does not. The parties’ arguments center on the SPBR’s decision to apply the

thirty-day limit in Ohio Adm.Code 124-1-03(I) instead of the appeal procedure found

in Ohio Adm.Code 124-1-03(A). -3-

{4} This dispute, pivoting on the hierarchal relationship between R.C.

124.34, Ohio Adm.Code 124-1-03(A), and Ohio Adm.Code 124-1-03(I), involves an

issue of statutory interpretation. Statutory interpretation is a matter of law. Despite

the parties’ focus on our standard of review reserved for factual disputes, this appeal

primarily calls for a de novo standard of review. A review of the record and the

applicable statutes, regulations, and caselaw supports the ruling of the SPBR.

Appellee’s failure to create and deliver a removal order required Appellant to file an

administrative appeal within thirty days and then raise the failure of delivery of a

removal order in that appeal, if this failure was applicable. Appellant did not follow

this procedure. The SPBR correctly dismissed the administrative appeal because it

was not timely filed, and the trial court was correct in affirming the SPBR’s decision.

Accordingly, we affirm the lower court’s ruling.

Background

{5} Appellant was employed as the Director of Facilities Management for

Mahoning County. On September 14, 2005, Appellant was informed he was being

removed from that position by James F. Petraglia, the County’s former Human

Resources Director. Petraglia told Appellant that he would be placed on

administrative leave from September 14 – 15 and asked him to clean out his desk.

He was then escorted from his office by two sheriff’s deputies. On the following day,

September 15, 2005, the Board adopted a resolution formally removing Appellant

and terminating his employment. The resolution was effective as of September 15,

2005.

Procedural History -4-

{6} On October 21, 2005, Appellant filed an appeal of his removal with the

SPBR. An administrative law judge (“ALJ”), was assigned to the case.

{7} On November 22, 2005, the ALJ issued a procedural order requesting

information from the parties regarding Appellant’s status as a classified or

unclassified employee. The parties’ responses conflicted with each other. Appellant

alleged he was a classified employee while Appellee claimed he was unclassified.

Appellee’s response to the order also incorporated a motion to dismiss. Appellee

argued that the SPBR lacked jurisdiction over the issue due to Appellant’s

unclassified status, or, alternatively, that Appellant’s administrative appeal was

untimely filed.

{8} On December 6, 2005, the ALJ issued a second procedural order, this

time requesting information from the parties on the issue of the timeliness of

Appellant’s appeal to the SPBR. While the ALJ acknowledged that any dispute over

Appellant’s classification would require a hearing, he emphasized that in order for

such a hearing to go forward, Appellant must have filed a timely appeal. The parties

were cautioned that the timeliness of the appeal was controlled by Ohio Adm.Code

124-1-03(I)’s thirty-day limitations period. The limitations period in Ohio Adm.Code

124-1-03(I) begins to run when an employee receives “notice” of his removal, as

defined by Ohio Adm.Code 124-1-02 (M). The issue to be resolved was the

determination of the date Appellant received notice of his removal.

{9} After receiving the parties’ responses on January 10, 2006, the ALJ

issued his recommendation to the SPBR. The ALJ determined that Appellant

received notice of his removal on September 15, 2005, and that he had 30 days after -5-

this date, starting on September 16, 2005, to file an administrative appeal pursuant to

Ohio Adm.Code 124-1-03(I). The ALJ concluded that the appeal period expired on

October 17, 2005, the first working day following the thirty-day filing period. Since

Appellant filed his appeal on October 21, 2005, the ALJ recommended that the SPBR

dismiss Appellant’s appeal because it was not timely filed.

{10} On April 3, 2006, the SPBR adopted the recommendation of the ALJ

and dismissed Appellant’s appeal because it was not filed within the time permitted

by Ohio Adm.Code 124-1-03(I).

{11} The decision of the SPBR was further appealed to the Mahoning

County Court of Common Pleas. The case was submitted to a magistrate, who

affirmed the decision of the SPBR. Appellant filed objections to the magistrate’s

decision, and on August 3, 2009, the trial court overruled the objections and affirmed

the magistrate’s decision.

{12} This appeal followed on August 31, 2009.

ASSIGNMENT OF ERROR

{13} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT UPHELD

AN ORDER OF THE STATE PERSONNEL BOARD OF REVIEW THAT WAS NOT

SUPPORTED BY RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE AND

WAS NOT IN ACCORDANCE WITH THE LAW.”

{14} Appellant alleges an abuse of discretion by the court of common pleas

in affirming the SPBR’s decision to dismiss Appellant’s administrative appeal for its

untimely filing. Appellant outlines three issues for review that incorporate a

combination of due process and statutory interpretation concerns. -6-

{15} A common pleas court acts in a “limited appellate capacity” when

reviewing orders of an administrative agency. Univ. Hosp., Univ. of Cincinnati

College of Medicine v. State Emp. Relations Bd. (1992),

,

. Dubbed a “hybrid form of review,” a common pleas court determines,

pursuant to R.C. 119.12, whether an agency’s fact-findings are “supported by

reliable, probative, and substantial evidence and [are] in accordance with the law.”

Univ. of Cincinnati v. Conrad (1980),

,

.

While this requires that deference be given in instances of conflicting or inconsistent

evidence, a common pleas court retains the ability to reverse, vacate, or modify

agency actions in the event it uncovers legally significant reasons to do so.

{16} Acting in an even more limited capacity, a court of appeals can only

overturn the lower court’s ruling on agency fact-findings if it finds that ruling to be an

abuse of discretion. See Rossford Exempted Village School Dist. Bd. of Edn. v.

State Bd. of Edn. (1992),

,

. The term

“abuse of discretion” constitutes more than an error of law or judgment; it implies the

trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v.

Blakemore (1983),

,

; see also Adulewicz v.

Benjamin (2006), 7th Dist. No. 05-JE-31,

. “An abuse of

discretion ‘implies not merely error of judgment, but perversity of will, passion,

prejudice, partiality, or moral delinquency.’ ” State ex rel. Commercial Lovelace

Motor Freight, Inc., v. Lancaster (1986),

,

,

quoting State ex rel. Shafer v. Ohio Turnpike Comm. (1953),

, 590,

. -7-

{17} There seems to be little dispute over the SPBR’s factual determinations

in this case. Appellant was orally informed of his removal by Appellee’s agent or

employee on September 14, 2005. On the following day, September 15, 2005,

Appellant was formally removed from his position by Appellee. On October, 21,

2005, Appellant filed an administrative appeal with the SPBR. At no point did

Appellant receive a removal order from his employer.

{18} Based on these facts, the SPBR dismissed Appellant’s administrative

appeal for its untimely filing. In making his recommendation, the ALJ relied on Ohio

Adm.Code 124-1-03(I).

{19} Ohio Adm.Code 124-1-03(I) states:

{20} “(I) Appeals from all other actions, including denials of reinstatement

from disability separations, shall be filed, in writing, with the state personnel board of

review not more than thirty calendar days after the time the appellant receives actual

notice of the action.” (Emphasis added.)

{21} Ohio Adm.Code 124-1-02 (M) provides the definition of “notice.” The

regulation reads:

{22} “(M) ‘Notice’ means the date of receipt by the employee, in writing, of

the action. If the employee did not receive a written notification, then ‘notice’ means

the date of the actual implementation of the action.”

{23} The ALJ determined that Appellant received actual notice of his

removal on September 15, 2005. Neither party disputes this conclusion. Their

disagreement, instead, centers on how this notice affects the time period for filing -8-

Appellant’s administrative appeal. If Ohio Adm.Code 124-1-03(I) applies, then

Appellant had 30 days after notice of his removal to file an appeal.

{24} Appellant argues that a different appeal procedure and timeline applies

because he was a classified employee at the time of his removal. The removal of

classified employees is governed by Ohio Adm.Code 124-1-03(A), an administrative

regulation implementing R.C. 124.34. R.C. 124.34 states in pertinent part:

{25} “In case of * * * removal, except for the reduction or removal of a

probationary employee, the appointing authority shall serve the employee with a copy

of the order of * * * removal, which order shall state the reasons for the action.

{26} “Within ten days following the date on which the order is served, * * *

the employee * * * may file an appeal of the order in writing with the state personnel

board of review or the commission.” (Emphasis added.)

{27} Ohio Adm.Code 124-1-03(A) affirms:

{28} “(A) Except as set forth below, appeals from “section 124.34 orders,” * *

* shall be filed, in writing, within ten calendar days following the date the order is

served on the employee.” (Emphasis added.)

{29} Unclassified employees do not enjoy similar protections. See Yarosh v.

Becane (1980),

,

(“Employees in the unclassified

service do not receive [R.C. 124.34] protections afforded employees in the classified

service.”).

{30} Appellant claims that as a classified employee, his removal required a

section 124.34 removal order. Until he received such an order, he argues, the

limitations period of Ohio Adm.Code 124-1-03(A) does not begin to run, and in this -9-

case, never began to run. Both parties agree that Appellant did not receive a section

124.34 order. Appellant argues that the determination of his classified or unclassified

status should occur prior to deciding whether the 10-day or the 30-day appeal

deadline applies. If he is found to be a classified employee, Appellant asserts that

his appeal should be deemed timely because the 10-day appeal period has still not

begun running.

{31} The ALJ, however, determined that a removal which takes place

without a section 124.34 order, regardless of whether the terminated employee is

classified or unclassified, falls under the procedure set forth in Ohio Adm.Code 124-

1-03(I), and under that procedure, an appeal must be filed within 30 days. In support

of this ruling, the lower court relied on the Third District’s decision in Swearingen,

supra, 3d Dist. No. 3-02-36,

, at ¶20. The appellant, Jeffery

Swearingen, was removed from his position as the Executive Director of the

Crawford County Children's Services Board (“CCCSB”). Id. at ¶3. Swearingen filed

an appeal of his removal with the SPBR approximately fifteen months after his

removal. The CCCSB moved to dismiss the appeal on two separate grounds: one,

that the appeal was not timely filed; and two, that Swearingen was an unclassified

employee. Id. The SPBR, adopting the recommendation of the administrative law

judge assigned to the case, dismissed the appeal on the first ground for its untimely

filing. Id. at ¶5. Both the Court of Common Pleas of Crawford County and the Third

District subsequently affirmed. In Swearingen, the Third District notably opined that

even if Swearingen had been found to be a classified employee, his administrative

appeal would still have been dismissed for its untimely filing, pursuant to the thirty- -10-

day limitations period of Ohio Adm.Code 124-1-03(I). Regardless of the filing of a

section 124.34 order, Swearingen held that there is a finite period of time within

which administrative appeals to the SPBR must be brought. If the appellant had

received a section 124.34 order, the ten-day limitations period of Ohio Adm.Code

124-1-03(A) applied. Since no section 124.34 order had been issued, however, the

thirty-day limitations period of Ohio Adm.Code 124-1-03(I) applies.

{32} Other caselaw supports the Third District’s analysis of Ohio Adm.Code

124-1-03. In State ex rel. Shine v. Garofalo (1982),

,

, the appellant, Debra Shine, a deputy clerk for the Stark County Clerk of

Courts, was removed from her position without a removal order. Shine argued that

without the order, she was precluded from bringing an appeal to the SPBR.

. Shine based her argument on State ex rel. Alford v. Willoughby (1979),

,

. Alford held that “the right to appeal an order of

removal to the civil service commission is contingent upon the appointing authority

filing the order of removal with the commission.”

. According to Alford,

without a section 124.34 order, no administrative appeal could go forward.

{33} After Alford, however, the SPBR promulgated two regulations, Ohio

Adm.Code 124-5-02 and former Ohio Adm.Code 124-1-03(D). These regulations

accounted for situations in which an employer did not provide a removal order to

terminated employees. Ohio Adm.Code 124-5-02 reads:

{34} “If a reduction, removal or suspension is alleged and no ‘section 124.34

order’ has been filed with the state personnel board of review, the employee shall -11-

prove, by a preponderance of the evidence, that the reduction, removal or

suspension occurred.”

{35} Former Ohio Adm.Code 124-1-03(D) provided:

{36} “If an appointing authority fails to file an order or provide an employee

with written notice, the affected employee shall file an appeal within thirty calendar

days of the time he has actual notice of the action.” (Emphasis added.) State ex rel.

LanFranchi v. Summit Cty. Bd. of Mental Retardation and Developmental Disabilities

(1988),

,

.

{37} Both regulations contemplated a situation in which an employer

terminated an employee without providing a section 124.34 order. Ohio Adm.Code

124-1-03(D) provided the limitations period within which the employee had to file his

administrative appeal, and Ohio Adm.Code 124-5-02 defined the standard of proof by

which the terminated employee had to prove his or her removal at the hearing on

appeal.

{38} In light of these new regulations, Shine, expressly overruling Alford,

held that the filing of a section 124.34 removal order was no longer “a jurisdictional

prerequisite to the right of appeal before the [SPBR].” Id. at 256. Even if the

employer failed to provide a section 124.34 removal order, employees were permitted

to file an appeal of their removal to the SPBR subject to the limitations period of

former Ohio Adm.Code 124-1-03(D). See also State ex rel. Cartmell v. Dorrian

(1982),

,

(per curiam) (upholding the rule

announced in Shine); Underwood v. St. Clairsville-Richland School Dist. Bd. of Edn.

(Mar. 4, 1985), 7th Dist. No. 84-B-11, *3 (citing Shine for the rule that failure to -12-

provide removal order does not prevent limitations periods of Ohio Adm.Code 124-1-

03 from running).

{39} We do note that Ohio Adm.Code 124-1-03 has undergone some

modification since the Shine opinion was released. At the time Shine was decided,

Ohio Adm.Code 124-1-03 read:

{40} “(A) Except as set forth below, appeals from ‘section 124.34 orders'

shall be filed, in writing, not more than ten calendar days after the filing of an order

with the state personnel board of review. If a ‘section 124.34 order’ is received by an

employee after it is filed with the state personnel board of review, the time for filing an

appeal begins to run from the date of receipt by the affected employee, not from the

date of filing with the state personnel board of review.

{41} “(B) Appeals from layoffs, job abolishments and transfers shall be filed,

in writing, not more than ten calendar days after the effective date of the action.

{42} “(C) Appeals of all other actions shall be filed with the state personnel

board of review not more than thirty calendar days after receipt, by the affected party,

of written notification of the action.

{43} “(D) If an appointing authority fails to file an order or provide an

employee with written notice, the affected employee shall file an appeal within thirty

calendar days of the time he has actual notice of the action.” (Emphasis added.)

.

{44} Today, and since at least 2002, Ohio Adm.Code 124-1-03 reads: -13-

{45} “(A) Except as set forth below, appeals from ‘section 124.34 orders,’

including disability separations, shall be filed, in writing, within ten calendar days

following the date the order is served on the employee.

{46} “(B) Appeals from layoffs, abolishments, and displacements shall be in

writing and shall be filed with the board, or postmarked, not more than ten calendar

days after receipt of the notice of the action. A copy of the notice of layoff,

abolishment or displacement shall be attached to the appeal.

{47} “(C) Appeals of reclassifications shall be filed, in writing, within thirty

calendar days after receiving the notice of the results of the audit. A copy of the audit

decision letter shall be attached to the appeal.

{48} “(D) Appeals from transfers shall be filed, in writing, within ten calendar

days after receipt of the notice of transfer from the director of the department of

administrative services. A copy of the notice of transfer shall be attached to the

appeal.

{49} “(E) Appeals from alleged reductions in pay or position which do not

involve a ‘section 124.34 order’ shall be filed with the board, in writing, within ninety

days after receipt of notice of the reduction or if no notice is given, within ninety days

of the actual imposition of the reduction. The appeal time may be extended within the

discretion of the board.

{50} “(F) Investigation requests shall be filed, in writing, within six months of

knowledge of the alleged violations of Chapter 124. of the Revised Code. This time

period may be extended within the discretion of the board where the violation is

ongoing or there is a pattern of violation over an extended period of time. -14-

{51} “(G) Appeals from disciplinary or retaliatory actions taken as a result of

an employee having filed a report under section 124.341(A) of the Revised Code

shall be filed, in writing, within thirty days after receiving actual notice of the

disciplinary or retaliatory action.

{52} “(H) Appeals from actions prohibited by section 4167.13 of the Revised

Code shall be filed, in writing, within sixty days after the violation occurs.

{53} “(I) Appeals from all other actions, including denials of reinstatement

from disability separations, shall be filed, in writing, with the state personnel board of

review not more than thirty calendar days after the time the appellant receives actual

notice of the action.” (Emphasis added.)

{54} The former administrative code section dealing specifically with

terminations not accompanied by a removal order is now subsumed under Ohio

Adm.Code 124-1-03(I), which provides a thirty-day limitations period for “all other

actions” outside of those enumerated in the regulation’s preceding sections. Recent

caselaw confirms that Ohio Adm.Code 124-1-03(I) requires an employee to file an

appeal within 30 days if a removal order is not issued. In State ex rel. McClaran v.

City of Ontario,

,

,

, the employee

was removed from his position as fire chief for the city of Ontario without a section

124.34 order. As a city employee, however, his appeal fell outside the authority of

the SPBR. Id. at ¶31; see also Cartmell,

,

(the

SPBR has jurisdiction only over employees in the state classified service, comprised

of state and county employees). Instead, his appeal fell within the jurisdiction of the

Ontario Civil Service Commission (“OCSC”). Id. at ¶32. -15-

{55} McClaran found that the OCSC did not have regulations analogous to

Ohio Adm.Code 124-1-03 to permit the filing of an appeal even without a removal

order. Absent similar OCSC regulations permitting removal without a section 124.34

order, the McClaran court was forced to conclude that the limitations period for

McClaran’s administrative appeal never began. Id. at ¶34. The reasoning in

McClaran confirms that section Ohio Adm.Code 124-1-03 requires a state or county

employee who has not received an order of removal to file an appeal within thirty

days.

{56} Appellant argues that Appellee’s failure to provide him with a section

124.34 order was a denial of due process. If he is, in fact, a classified employee he

may be correct. See, e.g., Yarosh,

,

. The fact

that there may be a due process violation inherent in his termination does not result

in a determination that he filed a timely administrative appeal, however. If, as he

claims, he was a classified employee at the time of his removal, his course of redress

was through timely filing of an administrative appeal before the SPBR. Had he timely

filed, he was free to raise his due process argument in that forum. He failed to file his

appeal on time, and he is now jurisdictionally barred from raising any arguments

surrounding the propriety of his termination to either the SPBR, the common pleas

court or this Court, despite the possible due process concerns alleged.

{57} We find no abuse of discretion or error of law in the lower court’s

judgment. Appellant was required to file an administrative appeal within 30 days of

receiving actual notice that his employment was terminated, pursuant to Ohio

Adm.Code 124-1-3(I). Appellant received actual notice on September 15, 2005. He -16-

filed an administrative appeal with the SPBR on October 21, 2005. This was more

than 30 days after receiving actual notice of his removal, and for this reason, his

appeal was properly dismissed. Therefore, we affirm the judgment of the Mahoning

County Court of Common Pleas.

Vukovich, J., concurs.

DeGenaro, J., concurs.