R. PATRICK WEST, Judge.

This matter is before the court upon plaintiffs' request for a permanent injunction and declaratory judgment.

Plaintiffs, Ohio Association of County Boards of Mental Retardation and Developmental Disabilities, Delmar Mahlerwein, Howard I. Curth, John Davis, Patsy E. Murray and Joyce Ann Brock, brought this cause of action against the State Teachers Retirement System ("STRS"), the Public Employees Retirement System ("PERS"), and their executive directors, seeking to invalidate a purported memorandum of understanding (hereinafter "memorandum") entered into by the defendants in February 1990. Pursuant to the memorandum, all employees of the Ohio County Boards of Mental Retardation and Developmental Disabilities (hereinafter "employees") who are employed in any position requiring certification by the Ohio Department of Mental Retardation and Developmental Disabilities would be deemed a "teacher" for purposes of transferring these employees from PERS membership to STRS membership. None of these employees hold positions which require them to be certified by the Ohio Department of Education.

On June 20, 1990, this court entered a temporary restraining order preventing the defendants from enforcing or implementing the memorandum. On July 12, 1990, an agreed amended temporary restraining order was entered which excluded those employees who had been contributing to STRS since July 1, 1989 from the effect of the memorandum.

Plaintiffs now seek a permanent injunction enjoining the defendants from enforcing or implementing the memorandum until the memorandum, constituting a rule, is adopted in strict conformity with the requirements of R.C. 111.15.

R.C. 111.15 provides for the filing of rules with the Secretary of State and the Director of the Legislative Service Commission. The PERS and STRS, through the memorandum, jointly promulgated a proposal concerning membership participation that affected the private rights of the employees. Promulgation of a substantive change clearly intended to reclassify the employees may be held to be a rule pursuant to the provisions of R.C. 111.15(A)(1).

Where the intent of the proposal is not to benefit members of the class asserting the failure to follow the rulemaking procedures of R.C. 111.15, a showing of prejudice in the failure to follow the statute will ordinarily invalidate the proposal. Clearly, prejudice has been shown in the promulgation of a rule, in the guise of a memorandum, that affects the status of a particular class of employees in the Public Employees Retirement System.

Clearly, both the PERS and STRS come within the R.C. 111.15(A)(2) definition of "agency," both being "governmental entit[ies] of the state." As such, their compliance with R.C. 111.15(B)(3) is statutorily mandated in the promulgation of proposed rules. Further, except in case of an emergency, neither the PERS nor STRS has the authority to alter or amend their existing rules without following the procedures in R.C. 111.15. As the Ohio Supreme Court has held, "[n]o rule or * * * [resolution] of the School Employees Retirement System shall be effective unless promulgated and filed in accordance with the provisions of * * * [R.C.] 111.15 * * *." State, ex rel. Bd. of Edn. of North Canton Exempted Village School Dist., v. Holt (1962), 174 Ohio St. 55, 21 O.O.2d 325, 186 N.E.2d 862, paragraph one of the syllabus.

A finding that the PERS and STRS failed to comply with R.C. 111.15 does not necessarily mandate the granting of a permanent injunction. An injunction is an extraordinary remedy in equity where no adequate remedy exists at law. Garono v. State (1988), 37 Ohio St.3d 171, 173, 524 N.E.2d 496, 498. It is not available as a right but may be granted where it is necessary to prevent a future wrong that the law cannot. Id. Injunction also issues to compel a party to restore a status which has been wrongfully changed. See Gratz v. Lake Erie Western RR. Co. (1907), 76 Ohio St. 230, 81 N.E. 239. An injunction is the proper remedy to effect restorative rights illegally invaded or destroyed. An injunction also effectively performs as a restorative function of the court.

Plaintiffs contend that R.C. 111.15 should have been followed and that a variety of injuries have resulted from this lapse. They argue that the memorandum could only be adopted by strict compliance with the procedures for promulgating and filing such rules under R.C. 111.15; that forced membership in the STRS will require statewide contributions in excess of $719,145; that previously vested retirement benefits would be adversely affected; and that statutorily required notice of an intended rule change was not provided to interested persons.

It has been long held that where the relief sought is the equitable remedy of an injunction, it is the plaintiffs' duty to establish irreparable harm. See Arthur Murray Dance Studios of Cleveland, Inc. v. Witter (C.P. 1952), 62 Ohio Law Abs. 17, 41-58, 105 N.E.2d 685, 701-712. The party seeking such relief has the burden of showing actual irreparable harm. See id. at 41-46, 105 N.E.2d at 701-705. Actual irreparable injury usually may not be presumed, but instead must be proved. Id. However, to the extent that irreparable harm is actually threatened, injunctive relief may be available. Id. at 46-47, 105 N.E.2d at 704-705.

The existence of an actual threat of irreparable injury in the present case may be established by a showing that the implementation of the memorandum will retroactively impair the obligation of the contracts previously entered into under the PERS. See Fraternal Order of Police Youngstown Lodge No. 28 v. Hunter (1975), 49 Ohio App.2d 185, 3 O.O.3d 252, 360 N.E.2d 708. See, also, Carper v. Stiftel (Del. 1977), 384 A.2d 2. See, also, Assn. of Pennsylvania State College University Faculties v. State System of Higher Edn. (1984), 505 Pa. 369, 479 A.2d 962; Pennsylvania Federation of Teachers v. School Dist. of Philadelphia (1984), 506 Pa. 196, 484 A.2d 751. Plaintiffs' evidence establishes that the implementation of the memorandum will require the non-retirant plaintiffs to make contributions at the rates established by the STRS, which rates are presently higher than those required by the PERS; that the implementation of the memorandum would be retroactively applied; that no separate notice of the intention to implement the memorandum was provided to any of the plaintiffs or the members of the class they represent; and that the memorandum was not filed in any form by either the PERS or STRS pursuant to R.C. 111.15.

Given the plaintiffs' uncontroverted evidence, the court believes such evidence is sufficient to establish a finding of irreparable harm. Accordingly, for the reasons stated above, plaintiffs' application for a permanent injunction is granted.

Having addressed the plaintiffs' request for a permanent injunction, the court now considers the plaintiffs' petition for declaratory judgment. The crux of plaintiffs' request is the issuance of an order setting forth the obligations of the defendants under R.C. 111.15 and the corresponding validity of the memorandum. Specifically, the plaintiffs' query: (1) the enforceability of the memorandum until it has been formally adopted as a rule pursuant to R.C. 111.15; (2) whether the PERS and STRS have the authority to broaden the definition of "teacher" for the purpose of transferring membership; (3) whether the vested retirement rights of the individual plaintiffs may be retroactively impaired; and (4) whether those employees who had previously retired under STRS, but are re-employed in certificated positions by the Ohio Department of Mental Retardation and Developmental Disabilities (hereinafter "MRDD") may continue to be so employed without loss of their STRS benefits.

The court has previously disposed of the first and third propositions, but will, nonetheless, briefly readdress these issues.

With respect to the first proposition, R.C. 111.15(B)(1) clearly mandates the procedure under which any proposal shall become a rule. The process is clearly set forth in plain and unambiguous language. Defendants, however, contend that the memorandum does not constitute a rule pursuant to the definition set forth under R.C. 111.15(A)(1). This contention is without merit. While the resolution of December 16, 1988, clarifying the agencies' definition of "teacher," is clearly not a rule as it was a "determination of a question of law or fact in a matter presented to an agency" (R.C. 111.15[A][1]), the February 16, 1990 adoption and ratification of the memorandum and the intent to implement the memorandum altered the nature of the memorandum into a rule subject to the validation procedures set forth under R.C. 111.15.

Further, defendants argue that the memorandum does not have "general and uniform operation" (R.C. 111.15[A][1]) for the retirement system as a whole. This is patently erroneous. The statute does not require that the rule be broadly applied statewide. It is only required that the proposed rule be uniformly applied by the promulgating agency to those affected by the rule. Finally, as the defendants concede, the memorandum is intended to be a permanent definition of who is a "teacher," even after the current membership is transferred. The court, therefore, finds the first requested declaration to be as set forth by the plaintiffs.

The third proposition challenges the retroactive impairment of vested retirement rights of the individual plaintiffs and the class which they represent. As previously alluded to, the implementation of the memorandum is a retroactive impairment of the obligation of the contracts previously entered into by the PERS and the plaintiffs. An administrative rule, having the force and operation of a statute, which extinguishes or impairs a vested legal relationship, creates a new obligation, imposes a new duty or attaches a new disability to previous transactions constitutes a retroactive enactment and results in a deprivation of property without due process of law. See Fraternal Order of Police Youngstown Lodge No. 28 v. Hunter, supra. Thus, the court hereby declares the third requested declaration to be as set forth by the plaintiffs.

Plaintiffs' fourth proposition again raises the question of the rights of the individual plaintiff retirants, and the class which they represent, of continued employment in certificated positions in MRDD while collecting retirement benefits from the STRS. Again, the rights and obligations of this class of employees are governed by the rights and obligations that had previously vested under the STRS.

Lastly, plaintiffs contend that neither the PERS nor STRS has the authority to adopt any rule which would broaden the definition of "teacher" for purposes of transferring membership from the PERS to STRS. This contention is untenable. The defendants are governed by the requirements of R.C. 111.15 when proposing to adopt a rule. This statute authorizes the defendants to promulgate rules to address general issues which will affect their memberships. Thus, pursuant to this rulemaking authority, the defendants possess the discretion to determine who is a "teacher" for purposes of establishing membership. See R.C. 3307.04 and R.C. 145.09, 3307.01(B) and 145.01.

The court takes note of the fact that although plaintiffs' complaint raises the spectre of a Section 1983 action (Section 1983, Title 42, U.S.Code), the issue was neither raised nor argued in their brief. Thus, this portion of plaintiffs' complaint is not well-taken.

Having effectively disposed of all issues presented herein, judgment is entered for plaintiffs with costs taxed to defendants.

Judgment for plaintiffs.