Davis v. Ohio Bureau of Employment Services

Abele, J. This is an appeal from an August 5, 1987 Pickaway County Common Pleas Court judgment affirming a decision of the Unemployment Compensation Board of Review. The board denied appellant unemployment compensation benefits following the termination of her employment as a registered nurse in March 1977. The 1977 termination of appellant’s employment has a long history of litigation. Appellant applied for unemployment compensation benefits the day after her employment ended in 1977. She also brought a personnel action against her employer, the Pick-away County Board of Health, to contest the termination of her employment. In 1981, we affirmed the Pick-away County Common Pleas Court decision which reversed the State Personnel Board of Review and affirmed the Pickaway County Board of Health’s decision to terminate appellant’s employment. See Davis v. Pickaway Cty. Bd. of Health (Feb. 6, 1981), Pickaway App. No. 78-CA-419, unreported. (Appellant claims the Ohio Supreme Court also decided that case, in her favor. Appellant, however, gives us no citation for such an Ohio Supreme Court decision and we can find none.) In a February 2, 1983 statement on an Ohio Bureau of Employment Services “notice of eligibility issue” form, appellant explained that back in 1977 an employee of the Circleville Bureau of Employment Services office told her she should “quit coming in and bothering the workers” concerning her case. Appellant claims that, as a result, she stopped reporting back to the bureau to register for work as required by R.C. 4141.29(A)(3). On an Ohio Bureau of Employment Services “request for reconsideration” form dated February 28, 1983, appellant’s attorney alleged that appellant was misinformed by a bureau employee concerning her duty to report back to the bureau to register for work. Appellant’s attorney cited Ruozzo v. Giles (1982), 6 Ohio App. 3d 8, 6 OBR 31, 451 N.E. 2d 519, where the court applied the equitable doctrine of estoppel against the government following misfeasance by an Ohio Bureau of Employment Services employee. The Unemployment Compensation Board of Review held a June 28, 1985 hearing on appellant’s claim. Appellant testified she received a booklet which explained her duty to report to the bureau biweekly to register to work and explained the consequences of failing to report. She admitted she probably did not read the booklet. When asked point blank whether the bureau employee ever told her not to report back every other week to register for work, appellant did not answer with a simple “yes”: “Q. My question of you, Miss Davis, is did he ever tell you not to come back on your biweekly reporting date and not file your claims? That is my question. “A. He said not to come back. “Q. Did he ever — “A. Well, that’s what I came for was to file a claim. So why would I come back for any other reason? “Q. My question has not been answered, and I expect an answer. Did he ever tell you specifically ‘Don’t come back in and file your claims each — every other week’? “A. ‘Do not report back to the unemployment board — unemployment office until the decision of the *89 Board of Review has been rendered.’ And that’s what I came for.” In an August 19,1985 decision, the Unemployment Compensation Board of Review concluded appellant had misunderstood the bureau employee. The board held that “her decision to discontinue filing claims on a biweekly basis, although erroneous, was not prompted by misinformation given her by an official of the Ohio Bureau of Employment Services.” The Pickaway County Common Pleas Court affirmed the board’s decision, albeit for a different reason. Contrary to the board’s decision, the court held that appellant “was refused permission to complete certain necessary forms at the Bureau.” The court, however, determined that contrary to Ruozzo, supra, estoppel does not lie against the state. In this regard, the court below cited Besl Corp. v. Pub. Util. Comm. (1976), 45 Ohio St. 2d 146, 74 O.O. 2d 262, 341 N.E. 2d 835, and Gaston v. Bd. of Review (1983), 17 Ohio App. 3d 12, 17 OBR 58, 477 N.E. 2d 460. Appellee did not appeal the Pick-away County Common Pleas Court’s determination that appellant was refused permission to complete the necessary forms. Appellant appeals the court’s determination that estoppel does not apply to the actions of the bureau’s employee. We affirm. Assignment of Error I “The court erred in failing to find that the decision of the Board of Review of the Bureau of Employment Services was unlawful, unreasonable, and against the manifest weight of the evidence for the reason that it is contrary to the fact and contrary to both statutory and case law in Ohio.” Assignment of Error II “The court erred in finding that an employee’s misinformation coupled with said employee’s actions in refusing to allow claimant to file certain reports required by the regulations of the Bureau of Employment Services do not effect an estoppel on the part of the state to then deny claimant benefits for her failure to make filings which the employee refused.” Appellant presents one argument in support of both assignments of error. Accordingly we will discuss both assignments of error together. Appellant relies on Ruozzo, supra, where the court applied the equitable doctrine of estoppel against the state after a bureau employee misinformed the claimant about a filing deadline. The court below disregarded Ruozzo and instead relied on Gaston, supra, which held the doctrine of estoppel cannot be applied against the state. Appellant attempts to distinguish Gaston from the case at bar. In Gaston, a claimant for unemployment compensation filed her application for extended Trade Readjustment Allowances past the one-hundred-eighty-day period imposed by statutes and regulations. The claimant alleged that the bureau’s employees misinformed her and failed to provide her with appropriate assistance and information concerning the application process. The Gaston court followed Besl Corp., supra, which held that estoppel does not lie against the state in the exercise of a governmental function. Appellant notes that the Gaston court emphasized that no provision existed in the statutes or regulations for extension of the one-hundred-eighty-day period in that case. Appellant distinguishes Gaston by noting that, in the case at bar, a regulation exists which permits extension of the time requirements for reporting to register for work. Appellant also notes that, while the Gaston claimant was merely *90 given erroneous information, appellant was given erroneous information and “precluded from filing her claim.” Although appellant claims Besl is also distinguishable from the case at bar, she does not specify in what manner Besl may be distinguished. Nor does she attempt to distinguish many other Ohio Supreme Court cases which have followed Besl and held that estop-pel may not be applied against the state. In Griffith v. J.C. Penney Co. (1986), 24 Ohio St. 3d 112, 24 OBR 304, 493 N.E. 2d 959, the court rejected arguments raised by a claimant for unemployment compensation who missed a deadline for filing a request for reconsideration. The appellate court had certified the case to the Ohio Supreme Court as being in conflict with Ruozzo. The Supreme Court affirmed in a per curiam opinion after reiterating the Besl holding that principles of estoppel cannot be applied against the state. In another case certified to the Supreme Court as being in conflict with Ruozzo, the Supreme Court again held in a per curiam opinion that estoppel may not be applied against the state. Sekerak v. Fairhill Mental Health Ctr. (1986), 25 Ohio St. 3d 38, 25 OBR 64, 495 N.E. 2d 14. The Sekerak decision rejected an argument by an appellant before the State Personnel Board of Review that estoppel should apply where she relied upon her personnel director’s statement that a “ten day” appeal time meant ten working days rather than ten calendar days. The court wrote: “It is well-settled that as a general rule ‘* * * the principle of estoppel does not apply against a state or its agencies in the exercise of a governmental function.’ ” While the Sekerak court additionally commented that estoppel is an equitable doctrine and hence has no bearing upon venue and jurisdiction, we believe that that comment does not limit the general rule that estoppel does not apply against the state to only those situations where the application of estoppel would wreak havoc on a requirement of venue or jurisdiction. The Sekerak court noted it did not agree or disagree with Ruozzo. The Sekerak court instead distinguished Ruozzo in a manner that also distinguishes Ruozzo from the case at bar. While the notice sent to the claimant in Ruozzo offered no information as to filing dates, the notice sent to the appellant in Sekerak twice stated that her appeal must be instituted within ten days. In the case at bar, appellant admitted she received a copy of the booklet which stated she must report biweekly to register for work. Appellant further admitted she probably did not read the booklet. Appellant never gave a simple answer to the question of whether the bureau employee specifically told her not to report back to the bureau biweekly to register for work. In Sun Refining & Marketing Co. v. Brennan (1987), 31 Ohio St. 3d 306, 31 OBR 584, 511 N.E. 2d 112, the court again refused to apply principles of estoppel against the state. The court wrote: “Principles of equitable estoppel generally may not be applied against the state or its agencies when the act or omission relied on involves the exercise of a governmental function.” Id. at 306, 31 OBR at 585, 511 N.E. 2d at 114. Although the above-quoted sentence contains the qualifier “generally,” appellant cites no authority other than Ruozzo to support her argument that the case at bar is an exception to the general rule that estoppel cannot be applied against the government. Due to our holding on the estoppel *91 issue, and due to the fact appellee did not file a notice of cross-appeal, we need not decide whether the court below correctly deviated from the board’s finding that appellant was “misinformed” and instead held that appellant was “refused permission to complete certain necessary forms at the Bureau.” Appellant’s first and second assignments of error are overruled. Judgment affirmed. Stephenson, J., concurs. Grey, P.J., dissents.