STATE, EX REL. ASSN., v. BD. OF EDN., 48 Ohio St.2d 139 (1976)

357 N.E.2d 384

THE STATE, EX REL. OHIO ASSN. OF PUBLIC SCHOOL EMPLOYEES ET AL., APPELLANTS, v. KETTERING CITY BOARD OF EDUCATION ET AL., APPELLEES.

No. 76-390Supreme Court of Ohio.
Decided December 1, 1976.

State — School employees — Retirement — Payment of accrued sick leave — Employees not covered, when — R.C. 124.39 (former R.C. 143.291), construed — Mandamus.

APPEAL from the Court of Appeals for Montgomery County.

Appellants Lucille Ludwick and Josephine Marvin were employed by the Kettering City Board of Education, and were covered by the provisions of R.C. 3319.141[1] until their retirements, Ludwick on December 31, 1973, and Marvin on March 1, 1974. At the times appellants retired, the board had no policy concerning the cash payment of accrued sick leave for retiring nonteaching personnel. Later, on March 12, 1974, the board adopted a policy pertaining to cash payment for accrued sick leave of retiring employees.

The instant mandamus action was instituted by appellants,[2]
in the Court of Appeals, against the Kettering City Board of Education and its clerk-treasurer, appellees here, to compel the board of education “to either adopt a policy concerning a cash payment for unused sick leave concerning the individual relators herein, or that this court issue a writ of mandamus compelling respondent, Kettering City Board of Education, to pay relators the minimum

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cash payment as set forth in Section 124.391, Ohio Revised Code, or to pay relators pursuant to the subsequently adopted policy by the respondent board.”

Appellants argue that they are entitled to cash payment for sick leave accrued at the times of their retirements because appellee board of education was required by statute[3] to adopt a policy regarding a sick leave conversion plan for retiring employees, and that their right to payment for accrued sick leave vested before retirement. Therefore, appellants maintain, appellee board can be compelled to provide them with the benefits of the sick leave conversion policy which the board adopted after they retired.

The Court of Appeals, in a unanimous decision, denied the writ of mandamus, and appellants’ appeal as of right brings the cause to this court for review.

[1] R.C. 3319.141 allows public school employees sick leave, which may be accumulated.

[2] The Ohio Association of Public School Employees was a relator below, together with Ludwick and Marvin, and an appellant here. However, references to “appellants” herein are to Ludwick and Marvin only.

[3] R.C. 143.291, infra, effective August 1, 1973.

Messrs. Lucas, Prendergast, Albright, Gibson, Brown Newman
and Mr. James E. Melle, for appellants.

Mr. John J. Adams, for appellees.

Per Curiam.

R.C. 143.291, as in effect before August 1, 1973 (134 Ohio Laws Pt. I 240, 277), provided that a state employee could, at the time of his retirement, be paid in cash for his accrued sick leave credit. Public employees other than those “paid directly by warrant of the state auditor” were not included.

On August 1, 1973 (in 135 Ohio Laws Pt. I 83, 124), R.C. 143.291 was amended by the addition of a second paragraph:

“All other employees covered by Section 143.29 of the Revised Code and those covered by Section 3319.141 of the Revised Code shall at the time of their retirement receive pay for all or part of their unused sick leave to the extent consistent with the policy in effect in the employing unit.” (Emphasis added.)

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Subsequently, on December 4, 1973 (in 135 Ohio Laws Pt. I 533, 624), R.C. 124.39 (former R.C. 143.291) was enacted, providing that a state employee paid directly by warrant of the state auditor could be paid for accrued sick leave credit. School employees were not included.

Effective June 29, 1974, by an Act of the General Assembly “to amend Section 124.39, and to enact Section 124.391 * * * to clarify conversion of sick leave,” R.C. 124.391 was adopted to include school employees, and R.C. 124.39 was clarified to read the same as it did when adopted in 135 Ohio Laws Pt. I 533, 624.

Therefore, at the times critical to appellants, December 31, 1973, and March 1, 1974, school employees were not covered by the statutes which authorized cash payments for accrued sick leave credit. Further, the language of R.C. 143.291, as effective August 1, 1973, did not place any duty on a board of education to adopt a policy for the conversion of accrued sick leave. Hence, there is no clear legal duty on appellees to do what appellants ask.[4]

Accordingly, the Court of Appeals was correct in denying the writ of mandamus. Its judgment is affirmed.

Judgment affirmed.

O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.

[4] This court does not decide whether mandamus is an appropriate remedy here. It should be noted, however, that, i State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, this court held that an action in mandamus will lie “where a public officer or agency is under a clear legal duty to perform an official act, and where there is no plain and adequate remedy
in the ordinary course of the law.” (Emphasis added.)

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