I respectfully dissent from the majority's holding that the home rule provision of the Ohio Constitution fails to exempt the city of East Cleveland from the operation of R.C. 124.39(B). This statute does not constitute a law of general nature governing a state-wide concern. The majority's determination represents a further evisceration of a municipality's power to regulate purely local matters.
"The purpose of the Home Rule amendments was to put the conduct of municipal affairs in the hands of those who knew the needs of the community best, to wit, the people of the city."Benevolent Assn. v. Parma (1980), 61 Ohio St. 2d 375, 379, 15 O.O.3d 450, 453, 402 N.E.2d 519, 522, fn. 1. I recognize that the state's interest in regulating matters of state-wide concern appropriately limits the home rule powers of a municipality. However, R.C. 124.39(B) interferes with the municipality's home rule power to fiscally manage the general welfare right of sick leave as established under R.C. 124.38.
This court has previously determined that R.C. 124.38 is a law of a general nature that establishes for covered employees a vested right in accumulated sick leave. See South EuclidFraternal Order of Police v. D'Amico (1983), 13 Ohio App. 3d 46,47, 13 OBR 49, 50, 468 N.E.2d 735, 737. However, the municipal employer retains the power to regulate sick leave pursuant to home rule provided that such regulation does not effectively extinguish the benefit.
Here, the East Cleveland resolution does not destroy the employee's right to sick leave but merely limits the availability of the benefit to the period of employment. This policy is consistent with the underlying purpose of R.C. 124.38 which is merely to ensure that municipal employees will receive a "minimum sick leave benefit." (Emphasis sic.) Ebert v. Bd. ofMental Retardation (1980), 63 Ohio St. 2d 31, 32, 17 O.O.3d 19, 20, 406 N.E.2d 1098, 1099-1100. The East Cleveland resolution does not reduce the benefit below minimal amounts. Rather, the East Cleveland resolution precludes the award of what amounts to a retirement bonus to qualifying municipal employees.
In Civil Serv. Personnel Assn. v. Akron (1984), 20 Ohio App. 3d 282, 20 OBR 374, 485 N.E.2d 775, the Court of Appeals for Summit County addressed an issue similar to the issue in the instant action. In that case, the defendant city of Akron refused to give new municipal employees who had transferred from other public agencies credit for sick leave accumulated during that prior employment. This policy directly contravenes the provision in R.C. 124.38 *Page 426 which requires the crediting of sick leave accumulated in the public agency from which the employee transfers. In affirming the trial court's declaration that the city's home rule powers prevail over that provision of R.C. 124.38, the court of appeals stated:
"Transferring sick leave credits does not revolve around a statewide concern that all public employees be granted some sick leave. Rather, it concerns a matter of fiscal policy which is well within the realm of local self-government, and not a concern for any political body except the municipality against which it is desired to be applied." Id., 20 Ohio App.3d at 284, 20 OBR at 376, 485 N.E.2d at 777-778.
I find this reasoning persuasive. Here, the disposition upon retirement of the accumulated sick leave of municipal employees constitutes a matter of local fiscal policy rather than a matter of state-wide concern. The city's resolution does not operate to impair the sick leave benefit created under R.C. 124.38. The resolution appropriately limits the availability of the benefit to the period of employment.
The intent of R.C. 124.39(B) is to discourage the misuse of sick leave. The vested right is to sick leave claimed pursuant to the statute. Under home rule a municipality has the power and is in the best position to determine what method to employ to discourage abuse of sick leave. In South Euclid Fraternal Orderof Police v. D'Amico, supra, 13 Ohio App.3d at 48, 13 OBR at 52,468 N.E.2d at 738, cited by the majority, this court, in finding the South Euclid ordinance unconstitutional, stated:
"This ordinance contains two major parts, `137.04 SICK LEAVE DEFINED,' and `137.06 JUSTIFICATION AND APPROVAL OF SICK LEAVE.' The first part is clearly unconstitutional since only R.C. 124.38 can define what `sick leave' is. The second part is just asclearly within the power of the city to enact procedures to seethat sick leave is properly used." (Emphasis added.)
There are numerous methods to discourage unwarranted absenteeism and to reward faithful performance of duties which do not have a direct fiscal impact. This type of decision properly rests with the municipality.
Accordingly, I would affirm the trial court's judgment that the city's sick leave resolution constitutes a proper exercise of the city's home rule powers. *Page 427