I agree that Dayton Teachers Assn. v. Dayton Bd. of Ed. (1975),41 Ohio St.2d 127, does not apply to compulsory arbitration of new contracts. There is a world of difference between the "discretionary authority to negotiate and to enter into a collective bargaining agreement with employees" and anexecuted agreement with employees containing compulsory arbitration of *Page 378 the terms and conditions of a valid contract. The distinction is clearly recognized in the two separate statements of law in theDayton case.
However, the purpose of this concurring opinion is to point out that the Xenia Board of Education, in Article III, Section3.12, reserved its discretionary power to negotiate and enter into contracts when it provided in the recognition and policy agreement that an impasse in negotiations "may be referred to arbitration." Courts have strained at times to construe the legislative use of may to mean shall, if the context otherwise requires such construction; however, it is another matter to amend the plain language of contracts by the parties. This is particularly true when such amendment would involve the loss by a public authority of a discretion vested by law in such authority. The provision in Article III, Section 3.12, for possible arbitration cannot be construed as compulsory unless voluntarily engaged in and accepted by the board. While this reservation of the discretionary power vested in the board is not as clear nor as explicit as that appearing in TrotwoodTeachers Assn. v. Board (1977), 51 Ohio App.2d 39, it has the same force and effect of protecting the authority of the board under the law.
I agree with the conclusion that a board of education may not abandon its discretionary power to negotiate and enter into new contracts. Such abandonment would be contrary to law and is not saved by an inconsistent exception that an agreement is imposed upon it "unless contrary to law." The exception for unlawful delegation, recognized in the Dayton case, as to executed contracts is too restrictive when transferred and applied to the broad and general discretionary power of a public authorityto enter into contracts involving the public interest and trust. The public trust may not be assigned to strangers.
However, I would not reach that issue in construing the instant policy agreement because, here, arbitration on new contracts is not compulsory, was refused by the board under its option and was imposed upon the board only by the court order, which, to the extent indicated, must be reversed. *Page 379