LEXINGTON TOWNSHIP TRUSTEES,
Plaintiff-Appellant
vs.
DAVID E. STEWART,> et al.,
Defendants-Appellees
No. CA-6766
COURT OF APPEALS, FIFTH APPELLATE DISTRICT OF OHIO, STARK COUNTY,
OHIO
Slip Opinion
March 17, 1986
Civil Appeal from the Court of
Common Pleas Case No. 84-775-OT
COUNSEL
For the Plaintiff-Appellant: JEFFREY JACKMIDES, 441 E. Main ST.
Alliance, Ohio 46601.
For Defendants-Appellees: ANTHONY J. CELEBREZZE, JR. Attorney
General of Ohio, PATRICK A. DEVINE, Chief, Ass't Attorney General,
JAMES A. BARNES, Ass't Attorney General, 145 South Front Street,
Columbus, Ohio 43215, TOM BURNS, Suite 717, AmeriTrust Building,
Canton, Ohio 44702.
JUDGES
Milligan, J. and Hoffman, J. concur.
AUTHOR: TURPIN
OPINION
O P I N I O N
TURPlN, J.
This is an appeal from the judgment of the Court of Common Pleas
of Stark County, Ohio, affirming the decision of the Board of
Review in affirming the referee's findings in favor of the
claimant, David E. Stewart, et al., and against the
plaintiff-appellant, Lexington Township Trustees. The appellant
argues a sole assignment of error:
CLAIMANT WAS LAID OFF DUE TO LACK OF WORK.
The facts of the case follow.
On June 15, 1983, the claimant-appellee, David E. Stewart,
entered into an employment contract with the Lexington Township
Board of Trustees. The claimant's last day of work was December 10,
1983. The claimant had previously filed an application for
determination of benefit rights on April 25, 1983. The claimant
filed his first claim for benefits for the week ending April 30,
1983. On May 12, 1983, the application for unemployment
compensation of the claimant, David E. Stewart, was allowed on the
grounds that a separation from his previous job was due to a lack
of work. On December 12, 1983, the claimant filed an application to
re-open the existing claim (of April 30, (1983), the
claimant-appellee then filed an additional claim for benefits for
the week ending December 17, 1983. On December 29, 1983, the
claimant's application to open an existing claim was allowed on the
same grounds. The appellant, Lexington Township Trustees, filed a
request for reconsideration, and on January 19, 1984, the initial
determination was affirmed, the appellant then filed a Notice of
Appeal to the Unemployment Compensation Board of Review, and a
hearing was scheduled for February 14, 1984. After a rescheduling,
the hearing was finally held on February 29, 1984, before a
referee. On March 9, 1984, the referee issued a decision which
affirmed the administrator's allowance of benefits. Further appeal
to the Board of Review was denied; the matter was then appealed to
the Court of Common Pleas, Stark County, Ohio. On September 30,
1985, the Court of Common Pleas affirmed the allowance of benefits
by the Board of Review>. The appellant-Trustee timely filed this
appeal.
I
The plaintiff-appellant, Lexington Township Trustees, argue that
the trial court erred in affirming the decision of the Board of
Review in affirming the referee's findings that the claimant was
laid off due to lack of work.
Initially, the appellant argued that the lay off was due to an
expiration of an employment contract with the claimant, David E.
Stewart. The appellant argues that the lay off was therefore a
direct result of a voluntary agreement; the claimant was in effect
an independent contractor. The agreement reads in its pertinent
parts:
AGREEMENT
THIS AGREEMENT is made this 15th day of June, 1983, by and
between the Board of Trustees of Lexington Township, Stark County,
Ohio, hereinafter called "Board" and David Eugene Stewart.
WITNESSETH:
WHEREAS, the Board deems it advisable to employ an additional
police constable for the Lexington Township Police Department.
NOW, THEREFORE, IT IS MUTUALLY COVENANTED AND AGREED BY AND
BETWEEN THE PARTIES AS FOLLOWS:
(1) The Board agrees to pay David Eugene Stewart's gross monthly
salary not to exceed Six Hundred Seventy Two Dollars ($672.00), per
month for services rendered as a police constable for Lexington
Township Police Department.
(2) David Eugene Steward hereby agrees to work a minimum of
twenty-eight (28) hours per week as a police constable for the
period of this contract.
(3) It is the understanding of the Board and David Eugene Stewart
that said contract for services as a police constable will commence
on June 16, 1983 at 12:01 A.M. and terminate on December 16, 1983
at 12:00 midnight.
(4) It is the understanding of the Board and David Eugene Stewart
that PERS contributions shall be made in accordance with state
statutes and regulations.
IN WITNESS WHEREOF, the Board of Trustees of Lexington Township,
Stark County, Ohio, and David Eugene Steward have hereunto set
their hands this day and year as first written above. ....
The contention that the claimant was an independent contractor
is without merit. In the contract stated above, Section (4) clearly
states that the plaintiff-appellant Trustees contribute to the
appellee's "PERS" which they would not do for a mere independent
contractor. Additionally, an independent contractor has some degree
of control and in a normal situation would bargain for his
employment contract terms. This contract period was presented to
the claimant along with other terms by the Trustees and doe s not
effect his unemployment benefits, Mathieu v.
Dudley (1967) 10 Ohio App.2d 169 which held:
1. The fact that unemployment is the result of the expiration of a
contract of employment is irrelevant as such to eligibility for
employment compensation; and
2. A mandatory discharge at age 65 is not for" just cause" under
R.C. § 4141.29(D)(2)(a) where, unlike the...
The record also indicates that the claimant felt that pursuant
to unemployment benefit regulations, he had to accept work if
offered, T.18:
Q. And, Mr. Jakmides alleges that at the time you entered into your
contract there was a discussion that took place; namely, your
contract would expire December the 16th and that you were not
guaranteed employment beyond that date, is that correct?
A. Yes.
Q. I don't believe I have anything further, so do you have anything
more that you'd like to state?
A. Yeah, I'd like to elaborate on that. It was also stated--it's
like the question you asked him about if they were talking about
the levy and I can't recall so I'm not going to say if they did or
not that it was brought up with on a taped interview if you want to
call it that before the Board of Trustees, the Police Chief, and
Mr. Jakmides that they wanted me to understand no way--no way would
they pay any un employment benefits. Well, I mean I--I needed a job
and I'm on--I was on unemployment at the time and I feel I don't
have any other decision but to say, "Well, yes, I, you know, I'll
accept that" because if I didn't, I wasn't accepting a job and I
immediately went, well, not immediately but on June 22 went back
and when they speak with you when you get a job that's information
you gotta give them,...
Again the claimant speaks from T.30-31:
MR STEWART: Yes, I do. To begin with, it's being--to me it's being
made sound like, well, I was hired a private contractor and usually
when you're hired as a private contractor, you don't have taxes and
the public--public employees' retirement system and Social Security
and--I'm sorry, and just all your taxes in general taken out of
you, you're usually just hired for one bulk money to do one job is
one thing about the contract and like I say, you know. I
needed employment so I took it. I have to--I
have responsibilities at home, too. (Emphasis added)
The claimant was ready and willing to continue employment, in
fact, the contract terms ran until December 16, 19 8 3, the
claimant's last day worked was December 10, 1983, T.6:
Q. Okay. At this point, why don't you just respond to my questions
and then at the end I'll give you ample opportunity to state
anything further. There's just some evidence in the trial that the
nature or excuse me, the contract expiration date was December the
16th, however, Mr. Stewart's last day of work was on or around
December the 10th. Do you have any firsthand knowledge with respect
to that matter?
A. No, I don't.
And further on the "Application to Reopen Existing Claim" form,
from the record certified by the Board:
See Illustration in original.
Finally, appellants additionally contend that since it spends
public funds in a restrictive manner that they should be allowed to
enter into agreements which purport to voluntary end employment
with the Trustees and as such are exempt from the payment of
unemployment benefits. This contention is also without merit,
O.R.C. 4141.29 states:
§ 4141.29 Eligibility and qualification for benefits.
Each eligible individual shall receive benefits as compensation
for 1 loss of remuneration due to involuntary total or partial
unemployment in the amounts and subject to the conditions
stipulated in sections 4141.01 to 4141.46 of he Revised Code.
No Revised Code section specifically excludes public
institutions.
The referee in her finding of fact stated:
The contractual period of employment began on 12:01 a.m. and
ended on December 16, 1983, at 12:00 midnight. Throughout the
contra actual period of employment, claimant performed his job
responsibilities satisfactorily. Claimant was last scheduled to
work on December 10, 1983. Claimant performed no services for
Lexington Township as a police officer between December 10, 1983,
and December 16, 1983. The contract between claimant and Lexington
Township Police terminated on December 16,: 1983, according to the
terms of the above referenced contract. Said contract was not
renewed at any time.
REASON :
Issue: Reason for separation from Lexington
Township Police (lack of work).
As set forth in the Findings of Fact above, work was available
to claimant as a police officer pursuant to a contract he entered
into with the Lexington Township Trustees. Claimant satisfactorily
performed services under said contract until it expired on December
16, 1983. At the expiration of the contract, no work was available
to claimant as a Lexington Township Police officer. Under these
circumstances, it must be held that claimant's separation from
Lexington Township Police was due to a lack of work. No
disqualification for benefit rights should be imposed as a result
of this separation.
The referee's opinion was affirmed by the trial court judge in
her judgment entry:
Court, after review of the record and case law cited by the
parties, hereby finds that the decision of the Board of Review is
neither unlawful, unreasonable, arbitrary nor against the manifest
weight of the evidence.
Decision of the Board of Review affirming the referee's findings
is hereby affirmed.
The standard of review applicable to this court limits our
determination to whether the Board's decision is unlawful,
unreasonable, and not against the manifest weight of the evidence,
Brown-Brockmeyer v. Roach (1968), 148 Ohio St.
511.
However, the Board's decision need be supported by competent
credible evidence Simon v. Lake Geauga Printing Co. (1982), 69 Ohio
St.2d 41.
The record contains evidence sufficient to support a finding of
entitlement and the trial court's holding is not unreasonable,
unlawful, or against the manifest weight of the evidence.
The sole assignment of error is overruled.
For the reasons stated above, the sole assignment of error is
overruled, and the judgment of the trial court is affirmed.
Milligan, J. and Hoffman, J. concur.
For the reasons stated in the Memorandum-Opinion on file, the
judgment of the Court of Common Pleas of Stark County, Ohio, is
affirmed.
DISPOSITION
AFFIRMED.