COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60304, 60305, 60306 CITY OF EUCLID : : : APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION ADMINISTRATOR, OHIO BUREAU OF : EMPLOYMENT SERVICES : : APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case Nos. 181905, 182734 & 182735. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: Paul F. Oyaski Director of Law Richard A. Wiegand Assistant Director of Law City of Euclid 585 East 222nd Street Euclid, Ohio 44123 For Appellee: Anthony J. Celebrezze, Jr. Attorney General Betsey Nims Friedman Assistant Attorney General 12th Floor, State Office Bldg. 615 West Superior Avenue Cleveland, Ohio 44113-1899 -2- SWEENEY, JAMES D., J.: Plaintiff-appellant City of Euclid ("City") appeals from the trial court's determination that the three underlying administrative decisions of the Unemployment Compensation Board of Review ("Board of Review") were "reasonable, lawful and is in concurrence with the manifest weight of the evidence." Journal Vol. 1277, page 416, July 17, 1990. For the reasons adduced below, we affirm. The record reveals that the claimants herein were school crossing guards employed pursuant to individual written contracts from August of 1988, said contracts being in evidence before the Board of Review. The parties to each contract were the individual crossing guard and the City and its police 1 department. This contract provides as follows (with signatures and dates removed for clarity): CONTRACT This contract by and between the City of Euclid and its Police Department and executed on the day of , 19 . WHEREAS, the City of Euclid provides School Guards on a part-time seasonal basis for the benefit of Euclid school children in conjunction with the school calendar of Euclid schools; and 1 Prior to written contracts begun in August of 1988, the parties operated under verbal agreements. In August, 1988, these verbal agreements were reduced to written contracts following a meeting between the individual crossing guards and the Chief of Police for the City. - 3 - WHEREAS, is qualified to serve as a School Guard during the upcoming school year for approximately 180 days. NOW, THEREFORE, the parties agree as follows: 1. That the City of Euclid through its Police Department will retain the services of as a part-time seasonal School Guard during the upcoming school year for approximately 180 days. 2. That will be subject to the terms and conditions of the School Guard Program operating under the jurisdiction of the Euclid Police Department. 3. The City of Euclid will rehire in each succeeding school year provided City Council appropriates sufficient funds and has complied with all applicable rules and regulations during his/her previous service. 4. This contract will be renewable annually with the mutual agreement of both parties. The City will notify the School Guard no later than May 1st of any future year if his/her services will or will not be needed. School Guard Euclid Police Department The record does not indicate that any of the claimants failed to have their contracts renewed for succeeding school years. The claimants filed their claims for unemployment benefits for holiday periods, and periods of summer vacation arising in - 4 - mid 1988 through 1989 when the schools were not in session and the claimants were not paid by the City. The applications for benefits were initially approved by the Ohio Bureau of Employment Services ("OBES") based on a finding of lack of work as the reason for separation from employment. Despite a motion for reconsideration filed by the City, the claimants' employer, the Administrator of OBES affirmed the initial determination. The Board of Review, following the City's appeal from the Administrator's decision and a subsequent hearing, affirmed the Administrator's decision. Upon the Board of Review's denial of the City's applications to institute further appeals, the City filed notices of appeal to the Court of Common Pleas. The trial court, upon motion by the City, consolidated the cases. On July 17, 1990, the trial court affirmed the Board of Review's decision. The City's notices of appeal, which are consolidated for purposes of appellate review, from the trial court were timely filed, and five assignments of error are presented for review by the City. These assignments of error will be addressed jointly since the same standard of review applies to all. I The Court of Common Pleas erred when it held that the decision of the Unemployment Compensation Board of Review was lawfu, (sic) reasonable and in concurrence with the - 5 - manifest weight of the evidence when the Board ruled claimants were eligible for unemployment compensation benefits when they were voluntarily unemployed. II The Court of Common Pleas erred when it held that the decision of the Unemployment Compensation Board of Review was lawful, reasonable, and in concurrence with the manifest weight of the evidence when the Board ruled the claimants were eligible for benefits when they were unavailable for suitable work. III The Court of Common Pleas erred when it held that the decision of the Unemployment Compensation board (sic) of Review was lawful, reasonable and in concurrence with the manifest weight of the evidence when the Board ruled that claimants were eligible for unemployment compensation benefits while performing services for an educational institution but during a customary vacation period or holiday recess. IV The Court of Common Pleas erred when it held that the decision of the Unemployment Compensation Board of Review was lawful, reasonable and in concurrence with the manifest weight of the evidence when the Board ruled that claimants were eligible for unemployment compensation benefits when their unemployment was for just cause pursuant to a contract. V The Court of Common Pleas erred when it held that the decision of the Unemployment Compensation Board of Review was lawful, reasonable and in concurrence with the manifest weight of the evidence when the Board ruled, in effect, that the "exceptions" to the eligibility rules were all inclusive, and thus precluded claimants' period of - 6 - unemployment from being classified as voluntary. The standard of review to be applied by this court was stated in Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159, paragraph three of the syllabus: 3. An appellate court, in reviewing a determination of a court of common pleas on manifest weight of the evidence on appeal from the board of review, may reverse only upon a showing that the trial court abused its discretion. In this context, abuse of discretion connotes more than an error of judgment; it implies a decision which is without a reasonable basis, one which is clearly wrong. 2 Revised Code Section 4141.29 provides in pertinent part: Section 4141.29 Eligibility and qualification for benefits. Each eligible individual shall receive benefits as compensation for loss of remuneration due to involuntary total or partial unemployment in the amounts and subject to the conditions stipulated in this chapter. (A) No individual is entitled to a waiting period or benefits for any week unless he: (1) Has filed a valid application for determination of benefit rights in accordance with section 4141.28 of the Revised Code; 2 R.C. 4141.01 provides at paragraphs (M) and (N): (M) An individual is "totally unemployed" in any week during which he performs no services and with respect to such week no remuneration is payable to him. (N) An individual is "partially unemployed" in any week if, due to involuntary loss of work, the total remuneration payable to him for such week is less than his weekly benefit amount. - 7 - (2) Has made a claim for benefits in accordance with section 4141.28 of the Revised Code; (3) Has registered at an employment office or other registration place maintained or designated by the administrator of the bureau of employment services. . . . (4)(a) Is able to work and available for suitable work and is actively seeking suitable work either in a locality in which he has earned wages subject to this chapter during his base period, or if he leaves such locality, then in a locality where suitable work is normally performed. * * * (5) Is unable to obtain suitable work. * * * (I)(1) Benefits based on service in employment as provided in divisions (B)(2)(a) and (b) of section 4141.01 of the Revised Code shall be payable in the same amount, on the same terms, and subject to the same conditions as benefits payable on the basis of other service subject to this chapter; except that after December 31, 1977: * * * (b) Benefits based on service for an educational institution or an institution of higher education in other than an instructional, research, or principal administrative capacity, shall not be paid to any individual for any week of unemployment which begins during the period between two successive academic years or terms of the employing educational institution or institution of higher education, provided the individual performed such services for the educational institution or institution of higher education during the first such academic year of term and, there is a reasonable assurance that such individual - 8 - will perform such services for any educational institution or institution of higher education in the second of such academic years or terms. (Emphasis added.) * * * It is not contested that the claimants herein were employed by the municipality of the City of Euclid, which is not an educational institution. Accordingly, the exclusion of benefits provision contained in R.C. 4141.29(I)(1)(b) does not apply toward these school crossing guards. City of North Olmsted v. Ohio Bur. of Emp. Serv. (Cuyahoga, 1989), 62 Ohio App. 3d 173; See also, University of Toledo v. Heiny (1987), 30 Ohio St. 3d 143. Having found the third assignment to be meritless, it must be determined whether claimants are eligible for benefits pursuant to R.C. 4141.29(A)(1) - (5). Appellant has raised the argument that claimants were ineligible for benefits because their periods of unemployment were voluntary in nature. See the first sentence of R.C. 4141.29. The voluntary nature is allegedly apparent from the fact that the claimants only agreed to work according to the school calendar for the approximately 180-day school term, thereby effectively waiving any right to benefits when school was not in session during the school term and while schools were on summer vacation. The City's reasoning is flawed in that a contractual waiver or release of eligibility to benefits is expressly prohibited by R.C. 4141.32(A). See Dudley v. Morris (1966), 6 Ohio App. 2d 187. The "involuntary" nature of a layoff - 9 - is determined by whether at the time of the layoff the employee wishes to cease working and the employer requires the employee to cease working. Id., paragraph one of the syllabus. The record herein fails to support the idea that the claimants desired to not work during the periods claimed. Assignments one, four and five are overruled. The final argument, set forth by the City in the second assignment, is that the claimants were ineligible for benefits 3 because they legally were "unavailable" for suitable work. See 4141.29(A)(4)(a). The basis for this argument by the City is that, by virtue of the claimants' expected return for the subsequent school term in the fall, potential employers would be less likely to employ the claimants during the periods claimed thereby rendering the claimants "unavailable" for suitable work. What a potential employer would or would not do with respect to the claimants is pure conjecture. The record contains no evidence to support the City's assumption. Furthermore, the statute in question, as provided by the General Assembly, makes no reference or distinction based upon the brief length of one's unemployment or the fact of a date certain for reemployment. We see no reason to intrude on the authority of the General Assembly by imposing exceptions to "availability" where none are stated. Assignment two is overruled. 3 It is not contested that the claimants complied with R.C. 4141.29(A)(1), (2), (3) and (5). - 10 - Judgment affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and FRANCIS E. SWEENEY, J., CONCUR JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .