Veterans’ service comission

OAG 98-020 Attorney General 2-102 OPINION NO. 98-020 Syllabus: When a veterans service commission appoints an employee to a position that requires performance of administrative and managerial duties of an executive director, and also requires performance of duties of a county veterans service officer, the position is that of county veterans service officer acting as executive director and is in the classified civil service pursuant to RC. 5901.07, regardless of the title the veterans service commission assigns to the position. To: Kevin J. Baxter, Erie County Prosecuting Attorney, Sandusky, Ohio By: Betty D. Montgomery, Attorney General, June 16, 1998 We are in receipt of your letter requesting an opinion regarding the application of R.C. 5901.06 and RC. 5901.07 for purposes of determining the civil service status of an employee of a veterans service commission. Specifically you ask: If a veterans service commission appoints an employee to a position that requires performance of administrative and managerial duties of an executive director, and also requires performance of duties of a veterans service officer, may the veterans service commission desig­ nate the position as that of executive director in the unclassified civil service pursuant to RC. 5901.06, or must the position be placed in the classified civil service pursuant to RC. 5901.07? Based on documents and information provided by a member of your staff, we understand the facts surrounding this request to be as follows. The job description governing the position in question was adopted in 1991. See Erie County Veterans Service Commission Job Description, Apr. 7, 1991. The assigned duties of the position include administrative and management duties, but also include direct services to clients such as: "advises and assists with counseling veterans and/or their families; assists in ,completing applications, forms, claims; interviews and investigates applications, when necessary." [d. The employee cur­ rently holding the position governed by this job description was appointed to it in 1995. Previous employees appointed to the position had been placed in the unclassified civil service, and their designation as unclassified was never challenged. The proper status of the current employee has come into question, however, because of certain legislative changes 1998 Opinions OAG 98-020 that were enacted in 1994, after the date the job description was adopted but before the date the current employee was appointed to the position. 1 In 1994, the General Assembly amended R.C. 5901.06 and RC. 5901.07 by adding to both statutes provisions concerning an executive director of a veterans service commission. See 1993-1994 Ohio Laws, Part IV, 6089, 6093 (Am. Sub. H.B. 448, eff. July 22, 1994). In this same legislation, the General Assembly also expressly specified the civil service status of each of the various positions authorized in RC. 5901.06 and RC. 5901.07. [d. Re. 5901.06 now provides, in pertinent part, that "[t]he veterans service commission may employ an executive director, who shall be a veteran and shall be employed in the unclassified service." The pertinent provisions of RC. 5901.07 provide: The veterans service commission shall employ one or more county veterans service officers, one ofwhom may act as executive director. Each officer shall be a veteran. Each shall be employed in the classified service and is exempt from civil service examination. The duties of these officers are to advise and assist present and fonner members of the armed forces of the United States, veterans, and their spouses, surviving spouses, children, parents, and depen­ dents in presenting claims or obtaining rights or benefits under any law of the United States or of this state. (Emphasis added.) Prior to the enactment of Am. Sub. H.B. 448, no statutory provisions expressly authorized a veterans service commission to employ an executive director. Antecedents of the current R.C. 5901.06 and R.C. 5901.07 merely authorized the employment of investiga­ tors, veterans service officers, clerks, stenographers, and "other personnel." See 1933 Ohio Laws 397, 398 (H.B. 556, approved June 28, 1933) (enacting G.C. 2933-1, now RC. 5901.06); 1945-1946 Ohio Laws 673, 674 (Am. S.B. 26, approved July 13, 1945) (enacting G.C. 2933-3, now R.C. 5901.07). None of the antecedent statutes specified the civil service status of these positions. Accordingly, prior to Am. Sub. H.B. 448, the civil service status of the position you have described was controlled by the general provisions of RC. 124.11. See generally State ex reI. Adams v. Wallace, 92 Ohio App. 3d 462, 465, 636 N.E.2d 329, 331 (Franklin County 1993) ("R.C. Chapter 124 in general governs which positions shall be in the classified and unclassified service"). However, "where there is language elsewhere in the Revised Code, expressly designating a certain position as being in either the classified or unclassified service or where there is language wherein the court can imply such legislative designation, then that language controls as to the classified or unclassified nature of the position." Suso v. Ohio Dep't of Dev., 93 Ohio App. 3d 493, 499, 639 N.E.2d 117, 121 (Franklin County 1993) (quoting lohnson v. State, 54 Ohio Misc. 7, 11, 375 N.E.2d 1268, 1271 (C.P. Montgomery County 1977», juris. motion overruled, 69 Ohio St. 3d 1449,633 N.E.2d 543 (1994); see also State ex reI. Adams v. Wallace, 92 Ohio App. 3d at 465-66, 636 N.E.2d at 330-31; Malloy v. 1In responding to your question, this opinion does not constitute a determination of the status of the particular employee who is the subject of your request. See 1983 Op. Att'y Gen. No. 83-087 at 2-342 ("[t]he determination of particular parties' rights is a matter which falls within the jurisdiction of the judiciary"); 1983 Op. Att'y Gen. No. 83-057 at 2-232 ("[t]his office is not equipped to serve as a fact-finding body; that function may be served by your office or, ultimately, by the judiciary"); accord 1990 Op. Att'y Gen. No. 90-063 at 2-267. Rather, this opinion identifies the principles of Ohio law that govern detennination of civil service status with respect to a position such as you have described. June 1998 OAG 98-020 Attorney General 2-104 Stark County Bd. ofComm'rs, No. CA 9308,1993 Ohio App. LEYJS 6391 (Stark County Dec. 20, 1993). Further, when the General Assembly alters the civil service status of a position by a statutory amendment or enactment, all persons serving in that position on or after the effective date of the legislation are subject to the change. See, e.g., Karb v. State ex reI. Carter, 87 Ohio St. 197, 100 N.E.2d 346 (1912) (syllabus, paragraph three) (statutory change from unclassified to classified); Shearer v. Cuyahoga County Hosp., 34 Ohio App. 3d 59, 516 N.E.2d 1287 (Cuyahoga County 1986) (statutory change from classified to unclassified); Lawrence v. Edwin Shaw Hosp., 34 Ohio App. 3d 137, 517 N.E.2d 984 (Franklin County 1986) (same); accord 1990 Op. Att'y Gen. No. 90-013. Thus, regardless of the civil service status accorded to an employee in a position such as you have described prior to 1994, the status of an employee currently in such a position is governed by the provisions of RC. 5901.06 and RC. 5901.07, as amended by Am. Sub. H.B. 448. If the position is that of executive director, it is unclassified under RC. 5901.06. If the position is that of veterans service officer acting as executive director, it is classified under R.c. 5901.07. It is axiomatic, however, that classified or unclassified status is not established simply by accepting the title or characterization assigned to an employee's position by the appointing authority. Yarosh v. Becane, 63 Ohio St. 2d 5,10,406 N.E.2d 1355,1359 (1980); In re Temzination ofEmployment, 40 Ohio St. 2d 107, 113, 321 N.E.2d 603, 607-08 (1974); State ex reI. Emmons v. Guckenberger, 131 Ohio St. 466, 469-70, 3 N.E.2d 502, 503 (1936). Rather, the determination of classified or unclassified status requires that "all duties, both assigned and performed, respecting the position must be evaluated." Rarick v. Board of County Comm'rs, 63 Ohio St. 2d 34, 37, 406 N.E.2d 1101, 1103 (1980) (determining by analysis of duties whether an employee held an unclassified fiduciary administrative position under RC. 124.11(A)(9»; accord In re Tennination ofEmployment, 40 Ohio St. 2d at 113-14, 321 N.E.2d at 608; 1975 Op. Att'y Gen. No. 75-023 at 2-94. Although these Ohio Supreme Court cases dealt only with determining whether positions were unclassified under the fiduciary exception of R.C. 124.11 (A), it follows that if an appointing authority asserts that another statute governs, it is also necessary to examine the duties of the employee in order to determine whether the position held is in fact the position governed by that statute. See Suso v. Ohio Dep't of Dev., 93 Ohio App. 3d at 502-04, 639 N.E.2d at 123-24 (determining by analysis of duties whether an employee held an unclassified professional or technical posi­ tion pursuant to R.C. 122.11); Westfall v. Department of Commerce, No. 93AP- 1067, 1994 Ohio App. LEXIS 225 (Franklin County Jan. 25, 1994) (determining by analysis of duties whether an employee held the unclassified position of chief deputy fire marshal pursuant to R.C. 3737.22(B»; Kohls v. Perry County Bd. of Mental Retardation, No. 92APEOl-122, 1994 Ohio App. LEXIS 4388 (Franklin County Sept. 29, 1994) (determining by analysis of duties whether an employee was an unclassified management employee pursuant to R.C. 124.11 and R.C. 5126.20). Accordingly, a veterans service commission cannot control the civil service status of the position described in your request simply by according it the title of executive director. Rather, the proper title of the position and its corresponding civil service status must be determined by an examination of the job duties assigned to and performed by an employee in that position. Pursuant to longstanding language in R.C. 5901.07,2 the duties of a county veterans service officer are to "advise and assist" veterans and their eligible dependents "in present­ ing claims or obtaining rights or benefits." RC. 5901.07 further provides that these duties 2The duties of a county veterans service officer were not altered substantially by 1993-1994 Ohio Laws, Part IV, 6089, 6093 (Am. Sub. H.B. 448, eff. July 22, 1994). These 1998 Opinions OAG 98-020 2-105 may be perfonned "on a part- or full-time basis." The tenn "executive director," as used in RC. 5901.06 and RC. 5901.07, is not defined or described by RC. 5901.06, RC. 5901.07, or any other provision of RC. Chapter 5901. An executive director, however, is generally understood as one whose duties relate to administration and management, including super­ vision of subordinates. See Black's Law Dictionary 569 (6th ed. 1990) (defining "executive employees" and "executive officer"); Webster's Third New International Dictionary 794 (una­ bridged ed. 1993) (defining "executive"). See generally RC. 1.42 (providing that terms undefined by statute should be understood in accordance with their common usage); Suso, 93 Ohio App. 3d at 501-02, 639 N.E.2d at 122-23 (applying RC. 1.42 in the context of a civil service status detennination). In order to determine which status applies when duties of a veterans service officer and executive director are combined, we note first that RC. 5901.07 expressly provides that a county veterans service officer may act as an executive director. There is, however, no corresponding provision in R.C. 5901.06 that an executive director may act as a county veterans service officer. Thus, when RC. 5901.06 is read in context with RC. 5901.07, the inference is that the term "executive director" in RC. 5901.06 is intended to describe a position that is separate and distinct from that of county veterans service officer. See gener­ ally State ex ref. Hemtan v. Klopfleisch, 72 Ohio St. 3d 581, 585, 651 N.E.2d 995,998 (1995) ("[a]11 statutes relating to the same general subject matter must be read in pari materia, and in construing these statutes in pari materia, this court must give them a reasonable construc­ tion so as to give proper force and effect to each and all of the statutes"). A veterans service commission, established pursuant to RC. 5901.02, is a creature of statute, whose authority to appoint employees is limited to that expressly conferred or necessarily implied by RC. 5901.06 and RC. 5901.07. 1996 Op. Att'y Gen. No. 96-040 at 2-155. See generally Dayton Communications Corp. v. Public Utilities Comm'n, 64 Ohio St. 2d 302, 307, 414 N.E.2d 1051, 1054 (1980). Accordingly, if a veterans service commission chooses to establish a position that combines the duties of county veterans service officer and executive director, such position is governed by the provisions of RC. 5901.07, and is in the classified service. The veterans service commission cannot alter the classified status of such a position simply by assigning it the title of executive director and purporting to act under a different statute. See, e.g., State ex rei. Adams v. Wallace, 92 Ohio App. 3d at 466, 636 N.E.2d at 331 (concluding that the Department of Human Services could not avoid the requirement of R.C. 5101.07 that division chiefs be in the classified service by purporting to appoint them as "deputies and assistants" pursuant to RC. 124.11(A)(9). See generally Yarosh; Rarick; In re Termination ofEmployment; State ex ref. Emmons v. Guckenberger. This conclusion is further reinforced by examination of the civil service status accorded positions with a veterans service commission prior to the enactment of Am. Sub. H.B. 448. In the absence of specific statutory provisions, the status of a county veterans service officer and of positions involving administrative, managerial duties of an executive nature were governed by the general provisions of R C. 124.11.3 It had long been recognized duties are essentially the same as when the position was first established in 1945. See 1945-1946 Ohio Laws 673, 674 (Am. S.B. 26, approved July 13, 1945). 3Pursuant to RC. 124.11 (B), the classified service is comprised of all positions "not specifically included in the unclassified service." Positions specifically included in the unclassified service are enumerated in RC. 124.11(A). Some of these positions are identified by title; others are identified more generally by specifying particular characteristics that will render a position unclassified. Compare RC. 124.11(A)(4) ("the members of county or dis- June 1998 OAG 98-020 Attorney General 2-106 that the position of county veterans service officer was classified pursuant to R.C. 124.11(B). See 1989 Op. Att'y Gen. No. 89-056 at 2-238; 1958 Op. Att'y Gen. No. 1648, p. 54; 1948 Op. Att'y Gen. No. 4130, p. 594, 595. A purely executive position would have been unclassified pursuant to the provisions of R.C. 124.11(A)(8), which permit commissions to designate up to three clerical and administI-ative support employees as unclassified. A single position combining the duties of these two classified and unclassified positions would have been governed by the general rule that such a hybrid position is placed in the unclassified service, regardless of which duties are primary. See Rarick v. Board ofCounty Cornrn'rs, 63 Ohio St. 2d at 38-39, 406 N.E.2d at 104 (employees placed in unclassified service because of the unclassified character of two out of six assigned and performed duties); Honaker v. Scioto County Common Pleas Court, Nos. 92-CA-2087, 92-CA-2088, 1993 Ohio App. LEXIS 5964 (Scioto County Dec. 6, 1993) (holding that an employer need only prove that some of employee's duties are unclassified, not that the unclassified duties are the employee's pri­ mary responsibilities), quoted in Smith v. Sushka, 103 Ohio App. 3d 465, 472, 659 N.E.2d 875,880 (Washington County 1995); Miller v. Ohio Dep't ofTransp., No. 9-CA-82, 1984 Ohio App. LEXIS 11099 (Fairfield County Sept. 5, 1984) (rejecting argument that unclassified status requires that majority of a position's duties be unclassified). Consistent with this rule, you have indicated that, prior to the enactment of Am. Sub. H.B. 448, the position you have described was considered to be in the unclassified service. As the above discussion indicates, there was no need for a legislative amendment to establish that a county veterans service officer is in the classified service or that an individual whose duties are limited to those of an executive director is in the unclassified service. By designating the hybrid position of veterans service offir.er and executive director as classi­ fied, however, Am. Sub. H.B. 448 reversed the effect of the general rule that hybrid positions are unclassified. Amendments to a statute are presumed to have a substantive effect. Denni­ son v. Dennison, 165 Ohio St. 146, 134 N.E.2d 574 (1956). Thus, the purpose of Am. Sub. H.B. 448 was to extend the protection of classified service to persons who perform both types of duties. Accordingly, when a veterans service commission appoints an employee to a position that requires performance of the administrative and managerial duties of an execu­ tive director, and also requires the performance of duties of a county veterans service offictr, the position is that of county veterans service officer acting as executive director and is in the classified civil service pursuant to R.C. 5901.07, regardless of the title the veterans service commission assigns to the position. Notwithstanding this conclusion, you should be aware that it is possible for a factual dispute to exist as to whether a particular employee in such a classified position is entitled to claim the benefits of classified employment. In a recent case, the Ohio Supreme Court held as follows: In an appeal pursuant to R.C. 124.34 by a terminated public employee who claims classified status, the state may assert defenses of waiver and estoppel if the employee has accepted appointment to a position designated as unclassified and also has accepted the bene­ fits of that unclassified position, regardless of whether the employee's actual job duties fall within the classified status. trict licensing boards") with R.C. 124.11 (A)(9) ("the deputies and assistants of state agencies authorized to act for and on behalf of the agency, or holding a fiduciary or administrative relation to that agency"). 2-107 1998 Opinions OAG 98-021 Chubb v. Ohio Bureau ofWorkers , Compensation, 81 Ohio St. 3d 275,690 N.E.2d 1267 (1998) (syllabus). In general, the availability of the waiver or estoppel defense in a particular case will depend on actions occurring at the time of appointment and the understanding existing between the employee and the appointing authority at that time. The court in Chubb has cited with approval a number of Ohio appellate court decisions that serve to illustrate the types of factual situations that support a defense of waiver or estoppel. [d. at 279,690 N.E.2d at 1270. Whether an employee in a particular case is subject to estoppel or waiver must be determined by the facts of that case, and cannot be determined by an opinion of the Attorney General. See also note one, supra. It is, therefore, my opinion, and you are hereby advised that when a veterans service commission appoints an employee to a position that requires performance of administrative and managerial duties of an executive director, and also requires performance of duties of a county veterans service officer, the position is that of county veterans service officer acting as executive director and is in the classified civil service pursuant to R.c. 5901.07, regardless of the title the veterans service commission assigns to the position. June 1998