CITY
OF COLUMBUS,
Appellee,
vs.
OHIO UNEMPLOYMENT COMPENSATION BOARD
OF
REVIEW; Ohio Bureau
of Employment Services,
Appellant
No. 93AP-459
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
632 N.E.2d 1344, 91 Ohio App. 3d 548
November 12, 1993, Decided
APPEAL from the Franklin County Court
of Common Pleas.
COUNSEL
Ronald J.
O'Brien, City Attorney, and Alan P.
Varhus, Assistant City Attorney, for Appellee.
Lee Fisher, Attorney General, and
Charles Zamora, Assistant Attorney General, for
Appellant.
JUDGES
John C. Young, Judge. Whiteside and Petree, JJ., concur.
AUTHOR: YOUNG
OPINION
{*549} JOHN C. YOUNG, Judge.
This matter is before this court upon the appeal of the
Administrator, Ohio Bureau of Employment Services, appellant, from
the March 3, 1993 entry of the Franklin County Court of Common
Pleas which reversed the decision of the Unemployment Compensation
Board of Review and found that the Recreation and Parks Department
was entitled to status as a "seasonal employer" pursuant to R.C.
4141.33. Appellant asserts the following assignments of error:
"I. The lower court abused its discretion in holding that
appellee's Recreation and Parks Department is a separate legal
entity and, concomitantly, a separate 'employer' for R.C. 4141.33
purposes, where the board of review's decision holding the contrary
is supported by reliable, probative and substantial evidence and is
in accordance with law.
{*550} "II. The lower court abused its discretion in
holding that the operations and business of appellee's Recreation
and Parks Department are substantially all in a seasonal industry
according to R.C. 4141.33, where such holding is neither supported
by the record evidence nor is in accordance with law."
In February 1990, the city of Columbus, appellee, filed an
application for classification as a seasonal employer for its
Recreation and Parks Department ("department"). Appellant denied
the application. Appellee requested reconsideration of the denial
of the application. However, on reconsideration, appellant affirmed
the initial determination. Thereafter, appellee appealed to the
Unemployment Compensation Board of Review ("board"). Following an
evidentiary hearing, the board held as follows: (1) the department
is a department of the city of Columbus and is not a separate legal
entity; (2) since appellee is the employer, it must be determined
if appellee, as a whole, qualifies as a seasonal employer; and (3)
the vast majority of the programs and departments of appellee
operate on a continuous basis of fifty-two weeks of the year and,
therefore, appellee's operations and business are not substantially
all in a seasonal industry.>
Appellee appealed to the Franklin County Court of Common Pleas,
which, in a decision issued February 3, 1993, reversed the decision
of the board. The court's decision was journalized on March 3,
1993.
This matter was before the Franklin County Court of Common
Pleas, which, in a administrative appeal filed pursuant to R.C.
Chapter 4141. R.C. 4141.26(B) sets forth the standard of review to
be applied by a common pleas court in hearing appeals from the
board and provides as follows:
"* * * The court may affirm the determination or order
complained of in the appeal if it finds, upon consideration of the
entire record, that the determination or order is supported by
reliable, probative, and substantial evidence and is in accordance
with law. In the absence of such a finding, it may reverse, vacate,
or modify the determination or order or make such other ruling as
is supported by reliable, probative, and substantial evidence and
is in accordance with law. * * *"
In reviewing the administrative order, the common pleas court
generally defers to the administrative resolution of factual issues
on which there is conflicting evidence. Gordon
v. Ohio Dept. of Adm.
Serv.> (Mar. 31, 1988), Franklin App. No. 86AP-1022,
unreported, 1988 WL 37094. On appeal, our review of the common
pleas court's decision is further limited to an abuse of discretion
standard as to factual issues. Ford
v. Ohio Dept. of
Natural Resources (1990), 67 Ohio App.3d 755, 588 N.E.2d
884. An abuse of discretion connotes more than just an error of
law. It exists where the court's attitude, evidenced by its
decision, was unreasonable, arbitrary or unconscionable.
Huffman v. Hair {*551} Surgeon, Inc.
(1985), 19 Ohio St.3d 83, 87, 19 OBR
123, 126, 482 N.E.2d 1248, 1251.
The eligibility requirements for status as a seasonal employer
are set forth in R.C. 4141.33(A) as follows:
"'Seasonal employment' means employment of individuals hired
primarily to perform services in an industry which because of
climatic conditions or because of the seasonal nature of such
industry it is customary to operate only during regularly recurring
periods of forty weeks or less in any consecutive fifty-two weeks.
'Seasonal employer' means an employer determined by the
administrator of the bureau of employment services to be an
employer whose operations and business, with the exception of
certain administrative and maintenance operations, are
substantially all in a seasonal industry. * * *"
The board determined that the department was not a separate
legal entity and that, inasmuch as the employer is the city of
Columbus, the board needed to determine if the city of Columbus as
a whole qualified as a seasonal employer. Because the vast majority
of the programs and departments of the city of Columbus operate
continuously for fifty-two weeks of the year, the board concluded
that the operations and business of the city of Columbus are not
substantially all of a seasonal nature.
On appeal before the common pleas court, the court found that
the department qualified as the employer and that eighty-five
percent of the full-time employees in the department who are not
engaged in maintenance or administration are performing operations
which are seasonal in nature. Therefore, the court held that the
department's operations are substantially all in a seasonal
industry.
This court finds that the court of common pleas erred and abused
its discretion both in determining that the department was the
employer and that substantially all of the operations and business
of the department are in a seasonal industry. This court has never
held that a department, such as the Recreation and Parks
Department, constituted an individual employer for purposes of the
law concerning seasonal employment or otherwise. However, even if
the common pleas court was correct in finding that the department
was the employer for purposes of the statute, this court does not
agree with the trial court's finding that substantially all of the
business and operations of the department are in a seasonal
industry. After reviewing the evidence presented to the board, this
court also disagrees with the trial court's utilization of the
eighty-five percent figure argued by the department in terms of
finding substantially all of the operations and business are in a
seasonal industry. The statute provides that in order to be
determined to be a seasonal employer, the operations and business,
with the exception of certain administrative and maintenance
operations, must be substantially all in a {*552} seasonal
industry. In reaching the eighty-five percent figure argued by the
department, the department included both full-time and part-time
administrative and maintenance employees in the calculation of its
numbers. More appropriately, this court finds that when those
full-time and part-time administrative and maintenance employees
are removed from the figures, approximately sixty percent of the
total number of employees in the department are seasonal employees.
Broken down further, approximately fifty percent are summer
seasonal employees and thirty-three percent are winter seasonal
employees. Therefore, even if the trial court was correct in
determining that the department was the employer for purposes of
the statute, the trial court abused its discretion in calculating
the percentage of employees who were seasonal.>
As such, appellant's first and second assignments of error are
well taken and are sustained.
Based on the foregoing, appellant's first and second assignments
of error are sustained, the judgment of the Franklin County Court
of Common Pleas is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Whiteside and Petree, JJ., concur.
DISPOSITION
Judgment reversed and cause
remanded.