Opinion
No. 86-927
Decided March 23, 1988.
Public Employees Retirement System — R.C. 145.02 does not prevent establishment of continuance of PERS membership, when — Volunteer fire fighter may not purchase past service credit, when — Ohio Adm. Code 145-5-07.
APPEAL from the Court of Appeals for Franklin County.
On February 25, 1958, relator-appellee, Donald Hughes, was appointed as a volunteer fire fighter by the village of McDonald. On August 1, 1966, he was appointed as a part-time fire engineer with the fire department, and on March 31, 1980, he was appointed as a full-time fire engineer.
During appellee's initial employment with the village as a volunteer fire fighter, he was not eligible for membership in the Public Employees Retirement System ("PERS"), respondent-appellant herein. However, effective January 1, 1976, Ohio Adm. Code 145-5-07 permitted volunteer fire fighters to establish membership in PERS. They were required to be members effective January 1, 1977, unless exempted. Furthermore, this administrative provision permitted volunteer fire fighters to purchase service credit for past service on an optional basis. The ramifications of this provision were fully explained in a PERS bulletin issued on January 23, 1976.
Pursuant to this provision, the village began making contributions to PERS as well as sending payroll deductions to establish appellee's membership therein. This deduction continued until appellee's appointment as full-time fire engineer on March 31, 1980, at which time he became a contributing member of the Police and Fireman's Disability and Pension Fund (hereinafter "PFDPF").
Effective October 30, 1978, Ohio Adm. Code 145-5-07 was amended to, inter alia, restrict a volunteer fire fighter's option to purchase past service credit to those years of service in which the individual worked two hundred fifty or more hours and earned $500 or more. On October 31, 1978, a PERS bulletin entitled "PERS Board Adopts Rule for Volunteer Firemen" was issued which explained the amended provisions of Ohio Adm. Code 145-5-07 and formally announced that the restrictions set forth in this amended provision would take effect on January 1, 1979.
On September 19, 1980, appellee requested information from PERS concerning the purchase of his past service credit. On December 3, 1980, appellee was informed that he was ineligible to purchase past service credit since he did not attempt to do so prior to the January 1, 1979 deadline and his past service hours did not satisfy the criteria set forth in Ohio Adm. Code 145-5-07 as amended on October 30, 1978.
Appellee continued in his efforts to purchase past service credits from PERS until December 17, 1981, at which time PERS notified appellee that he was no longer eligible to either contribute to or accrue benefits in the PERS system for the reason that he had become a participating member in the PFDPF.
On November 1, 1984, appellee instituted this action in the Court of Appeals for Franklin County seeking both a declaratory judgment and a writ of mandamus. Therein, appellee alleged that PERS not only improperly excluded him from membership on the basis of his membership in PFDPF, but also refused to allow him to purchase the past service credit he earned while serving as a volunteer fire fighter. Appellee subsequently withdrew the request for a declaratory judgment. On October 16, 1986, the appellate court granted the requested writ of mandamus and ordered PERS to reinstate appellee onto its membership rolls and to process appellee's request to purchase past service credit.
The cause is now before this court upon an appeal as a matter of right.
Jonathan J. Downes, for appellee.
Anthony J. Celebrezze, Jr., attorney general, and Nancy J. Miller, for appellant.
In its first proposition of law, appellant argues that R.C. 145.02 precludes a member of PFDPF from either establishing or continuing a membership in PERS.
This issue has been resolved in this court's recent judgment in Dreger v. Pub. Emp. Retirement System (1987), 34 Ohio St.3d 17, 516 N.E.2d 214. Therein, this court held in the syllabus that "R.C. 145.02 does not require the termination of the pre-existing membership in the Public Employees Retirement System of a person who begins contributing to the Police and Firemen's Disability and Pension Fund." Accordingly, this proposition is not well-taken.
In its next proposition of law, appellant challenges the appellate court's determination that appellee is entitled to purchase credit for past service as a volunteer fire fighter. Appellant contends that the option to purchase past service credit was a mere expectancy interest and not a vested right; hence, the terms of the option were subject to subsequent amendment.
This court faced a similar factual situation in State, ex rel. Frye, v. Bachrach (1964), 175 Ohio St. 419, 25 O.O. 2d 438, 198 N.E.2d 803. In Frye, the relator was a member of Cincinnati's Firemen's Relief and Pension Fund when he began active duty with the armed forces. While he was on active duty, the General Assembly passed a bill which permitted fire fighters to receive credit for their time served in the armed forces so long as they were honorably discharged by a specified time and applied for reinstatement in the fire department within ninety days of their discharge. The relator in Frye sought to have a portion of his time in the military service credited as time served as a city fire fighter despite his failure to satisfy all the requirements set forth in the statute. The Frye court rejected relator's request, concluding that a fire fighter's right to have any of his military time credited toward his fire fighter's pension arose by statute, and that rights created by statute vest only when all the conditions therein have been met.
We find that the principles espoused in Frye are equally applicable to the matter at hand. Like the relator in Frye, the appellee in this case has failed to satisfy all the conditions necessary to vest his right to purchase the past service credit. Pursuant to the terms of Ohio Adm. Code 145-5-07, as in effect in January 1976, appellee's right to have his past service as a volunteer fire fighter credited to his PERS account was contingent upon his exercising this option. Clearly, appellee failed to exercise this option prior to the imposition of additional requirements on January 1, 1979. The fact that appellee had not taken all the necessary steps to secure his right to have his past service as a volunteer fire fighter credited to his PERS account places him on the same footing as the relator in Frye.
For the reasons set forth in this opinion, we affirm that part of the appellate court's decision granting a writ of mandamus compelling PERS to recognize appellee's continued eligibility for participation in PERS for contributions made before he became a member of PFDPF. However, we reverse that part of the appellate court's decision compelling PERS to allow appellee to purchase his past service credit. We find appellee's right to purchase his past service credit was a mere expectancy interest and not subject to the constitutional protections afforded to vested rights.
Judgment affirmed in part and reversed in part.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., dissents.
I would reverse the court of appeals' decision in its entirety. As I stated in Dreger v. Pub. Emp. Retirement System (1987), 34 Ohio St.3d 17, 21-22, 516 N.E.2d 214, 217-218 (Wright, J., dissenting), a literal and reasonable reading of R.C. 145.02 indicates that the statute precludes a member of the Police and Firemen's Disability and Pension Fund from either establishing or continuing a membership in the Public Employees Retirement System. Thus, I must respectfully dissent from the majority opinion.