dissenting.
{¶ 45} I respectfully dissent. I believe that State ex rel. Mallory v. Pub. Emps. Retirement Bd. (1998), 82 Ohio St.3d 235, 694 N.E.2d 1356, and State ex rel. Van Dylte v. Pub. Emps. Retirement Bd., 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, are authority for finding that the Franklin County Public Defender’s Office (“FCPDO”), following its 1984 incorporation, was not a public employer and its employees were not public employees entitled to credit from the Public Employees Retirement System (“PERS”). Therefore, I would deny relators’ request for PERS service credit post-1984 based on the doctrine of stare decisis. I would reverse the court of appeals and deny the requested writ of mandamus.
{¶ 46} In Mallory, the court determined that Diane Mallory was entitled to PERS credit for the years 1978 to 1980 and 1982 to 1994 even though the FCPDO was a private, nonprofit organization that had paid Social Security taxes during that period. 82 Ohio St.3d at 245, 694 N.E.2d 1356. Mallory was granted PERS credit even though she was also entitled to Social Security and private pensions. In Mallory, the court relied upon the carryover provision in R.C. 145.01(A)(2) to find that Mallory continued to perform the duties of a public employee, under the direction of a contractor, during the years following the FCPDO’s 1984 incorporation as a nonprofit entity. Id. By applying the carryover provision, the court must have concluded that the public defender was not operating as a public employer after 1984 (otherwise there would be no need to rely on the carryover statute).
{¶ 47} I vigorously dissented from the majority’s application of the carryover provision in Mallory because the record reflected that the FCPDO was a private entity, not a public employer. 82 Ohio St.3d at 248-249, 694 N.E.2d 1356 (Lundberg Stratton, J., dissenting). In addition, Mallory had paid into the Social Security fund and would be entitled to its benefits. As a result, county governments faced huge financial liability for many prior years of PERS contributions for similarly situated employees with no offsetting credit for Social Security contributions.
*397{¶ 48} In Van Dyke, another FCPDO employee sought PERS credit for a period of employment beginning in 1986. 99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, ¶ 15. Van Dyke had worked for the public defender but had left the office, and then was rehired in 1986. Id. at ¶ 5-8. We rejected Van Dyke’s claim for PERS credit from the time she was rehired in 1986 because the FCPDO had become a private, nonprofit organization before she was rehired. Id. at ¶ 30. We determined that upon rehiring, Van Dyke was a new employee and not a carryover. Id. at ¶ 37. Thus, she was not entitled to PERS credit because the public defender’s office was not a public employer after its incorporation in 1984. We explicitly reasoned, “Instead, in April 1986, [Van Dyke] was beginning a term of employment with a private contractor * * *. [W]hen she began her second period of employment with FCPDO, it was no longer a county agency.” Id. at ¶ 29-30.
{¶ 49} The court also rejected the alternate grounds raised by Van Dyke, i.e., equitable estoppel and constitutional claims of due process and right to a remedy. Id. at ¶ 40-42. Thus, the parties litigated other theories that Van Dyke had asserted to substantiate her claim that she was a public employee.
{¶ 50} When relators in this case requested a PERS determination that they were public employees from 1985 through 1998, the PERS staff was obligated to apply Van Dyke and deny their request. The Public Employees Retirement Board (“PERB”) accepted the staffs conclusion to deny the request for PERS service credit. Consequently, I believe that PERB did not abuse its discretion in rejecting relators’ claim based on Van Dyke. Relators should not now be afforded another opportunity to litigate an issue that has already been twice resolved.
{¶ 51} I believe that the magistrate in the court of appeals aptly explained the application of Mallory and Van Dyke. He said that “by engaging in the carryover analysis, the Mallory court necessarily recognized that the nonprofit defender was not a public employer because R.C. 145.01(A)(2) [the carryover provision] is applicable only when the PERS member continues to perform the same or similar duties ‘under the direction of a contractor who has contracted to take over what before the date of the contract was a publicly operated function.’ ” State ex rel. Davis v. Pub. Emps. Retirement Bd., 174 Ohio App.3d 135, 2007-Ohio-6594, 881 N.E.2d 294, ¶ 73. He correctly concluded that “the Mallory court necessarily viewed the nonprofit defender as a private contractor who had contracted to take over what was previously a publicly operated function.” Id.
{¶ 52} The magistrate made a corresponding analogy to Van Dyke: “[T]he Van Dyke court’s determination that the FCPDO ‘was no longer a county agency’ when Van Dyke was rehired as a staff attorney in April 1986 was a necessary predicate to its ultimate determination that Van Dyke was not a public employee *398when she was rehired by nonprofit defender as a staff attorney. Although the issue focused primarily on the applicability of the carryover provision, nevertheless, the court’s carryover analysis was factually premised upon nonprofit defender’s status as a private employer.” Davis, 174 Ohio App.3d 135, 2007-Ohio-6594, 881 N.E.2d 294, ¶ 78.
{¶ 53} Under two different scenarios, this court has answered the underlying question that the FCPDO was not a public employer for PERS purposes post-1984. Thus, when PERB decided this case, it was obligated to follow Mallory and Van Dyke. I believe that PERB did not abuse its discretion when it denied relators’ request for PERS credit.
{¶ 54} By allowing relators to belatedly assert this argument under a new theory on the basis that it was not litigated in Van Dyke, we are allowing relators to get in by a back door. I believe that stare decisis applies and that further litigation over the underlying merits is an exercise in futility.
{¶ 55} Relators were all hired after the FCPDO’s 1984 incorporation. They were advised during the interview process that the office was a nonprofit corporation, not a county agency. They were informed that they would contribute to Social Security, and they would not be covered by PERS. They also had an opportunity to contribute to private retirement plans established by the FCPDO.
{¶ 56} Relators have had numerous opportunities to present evidence and to brief the issue whether the FCPDO was a public employer from 1985 to 1998. In 2003, PERS’s general counsel issued a determination that the FCPDO was not a public employer during that time period. In 2004, a hearing examiner recommended that the general counsel’s decision be affirmed, and PERB accepted the recommendation.
{¶ 57} Relators sought a writ of mandamus to compel PERB to credit their account with PERS service — the third time someone has presented this issue to a court. A magistrate determined that relators were in privity with the relator in Van Dyke and that issue preclusion prevented relators from asserting then-claims. However, the court of appeals rejected the administrative ruling, finding that there could be no issue preclusion because the “post-incorporation status of FCPDO” had not been litigated, and instead issued a writ of mandamus. Davis, 174 Ohio App.3d 135, 2007-Ohio-6594, 881 N.E.2d 294, ¶ 73. Relying on the same circular reasoning, the majority now affirms.
{¶ 58} I strongly dissent. I believe that Van Dyke determined this issue and that we are bound by Van Dyke. This issue has already been litigated, and these relators should not be permitted to advance new and different theories (such as agency, control, alter ego, lack of separate mind, will or existence, and piercing the corporate veil) that Van Dyke could have raised but did not. We should not *399grant relators a windfall. Consequently, I respectfully dissent and would reverse the court of appeals and deny the requested writ of mandamus.
Buckley King, L.P.A., James E. Melle, and Donell R. Grubbs, for appellees and cross-appellants. Nancy Hardin Rogers, Attorney General, and Laura Erebia Parsons, Assistant Attorney General, for appellant and cross-appellee Public Employees Retirement Board. Ron O’Brien, Franklin County Prosecuting Attorney, and Nick A. Soulas Jr., Assistant Prosecuting Attorney; and Lane, Alton & Horst, L.L.C., and Teri G. Rasmussen, for appellants and cross-appellees Franklin County Board of Commissioners, Franklin County Public Defender Commission, Franklin County Public Defender, and Franklin County and Columbus Public Defender Yeura Venters. O’Donnell and Lanzinger, JJ., concur in the foregoing opinion.