{¶ 117} The instant appeal presents a question of interpretation of the Ohio Constitution. Neither the state legislature nor any political subdivision may pass legislation that is contrary to the Ohio Constitution. Section 34, Article II contains a specific provision authorizing laws that regulate the hours of labor and establish a minimum wage. In addition, Section 34, Article II contains a more general provision, which authorizes the passing of laws that provide "for the comfort, health, safety and general welfare of all employees." The last clause of Section 34, Article II, which is critical in the instant case, states, "no other provision of the constitution shall impair or limit this power."
{¶ 118} Appellants contend that R.C. 9.481, which became effective on May 1, 2006, is a statute that is specifically authorized by Section 34, Article II, and cannot be limited or impaired by any other section of the Ohio Constitution. Warren's residency requirement, Section 155.05 of Warren's Codified Ordinances, passed by the Council of the City of Warren on May 29, 1991, is clearly in conflict with R.C. 9.481. Warren believes that Section 155.05 is a valid exercise under, and permitted by, Section 3, Article XVIII of the Ohio Constitution — "the Home Rule Amendment." Essentially, Warren argues that the restrictions contained in R.C. 9.481 exceed the scope of Section 34, Article II, because they do not provide for the "comfort, health, safety and general welfare" of employees while they are physically present for work; therefore, the prohibition on any other constitutional limitation does not apply.
{¶ 119} In interpreting the Ohio constitutional provision applicable to this issue, certain rules of construction apply. "`The first step in determining the meaning of a constitutional provision is to look at the language of the provision itself. * * * Words used in the Constitution that are not defined therein must be taken in their usual, normal, or customary meaning.' * * *" (Citations omitted.)State ex rel. King v. Summit Cty. Council,99 Ohio St.3d 172, 2003-Ohio-3050, *Page 548 789 N.E.2d 1108, at ¶ 35. "If the meaning of a provision cannot be ascertained by its plain language, a court may look to the purpose of the [constitutional] provision to determine its meaning." State v. Jackson, 102 Ohio St.3d 380,2004-Ohio-3206, 811 N.E.2d 68, at ¶ 14.
{¶ 120} Warren, together with the Third, Sixth, Eighth, and Ninth Appellate Districts, has suggested that this constitutional provision should be read to limit the phrase "comfort, health, safety, and general welfare" to only those circumstances in which the employee is physically present for work. See Lima v. State, 177 Ohio App.3d 744,2007-Ohio-6419, 896 N.E.2d 149; Toledo v. State, 6th Dist. No. L-07-1261, 2008-Ohio-1957, 2008 WL 1837256;Cleveland v. State, 8th Dist. Nos. 89486 and 89565,2008-Ohio-2655, 2008 WL 2252542; State v. Akron, 9th Dist. No. 23660, 2008-Ohio-38, 2008 WL 81506. However, as recognized by the Supreme Court of Ohio, "[t]he language of Section 34 is so clear and unequivocal that resort to secondary sources, such as the constitutional debates, is actually unnecessary." Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 15, 539 N.E.2d 103. The plain language of Section 34, Article II clearly grants the General Assembly broad authority to legislate for the "comfort, health, safety, and general welfare of all employees." (Emphasis added.) If this section were intended to apply only to the period of time when one is physically present at work, it could have been simply stated as such by providing for the "comfort, health, safety, and general welfare of all employees duringworking hours."
{¶ 121} I agree with the writing judge that the Supreme Court of Ohio has interpreted this constitutional provision as encompassing more than just the time period when one is at work. See generally Rocky River v. State Emp.Relations Bd. (1989), 43 Ohio St.3d 1, 13, 539 N.E.2d 103. We are bound to follow the precedent as set forth by the Supreme Court of Ohio in Rocky River, which determined that Section 34, Article II "constitutes a broad grant of authority to the legislature to provide for the welfare of all working persons, including local safety forces. * * * The provision expressly states in `clear, certain and unambiguous language' that no other provision of the Constitution may impair the legislature's power under Section 34. * * * This prohibition, of course, includes the `home rule' provision contained in Section 3, Article XVIII. * * *." (Citations omitted and emphasis sic.) Id.
{¶ 122} In the area of labor law, where a collective-bargaining agreement is in place, any change in terms and conditions of employment must be bargained. Warren argues that Section 155.05 is a "qualification" for employment and, thus, is outside the scope of Section 34, Article II. However, Section 155.05 is clearly a term and condition of employment; an employee's residence within the city is required to be eligible for continued employment. *Page 549
{¶ 123} Perhaps the most disturbing aspect of the ordinance in question is the lack of any exception to the residency requirements for particular circumstances. Living within the city limits affects all facets of an employee's life, including where the employee's children attend school, what local government services he will be able to obtain, what type of safety forces he will have, and where his spouse must live, regardless of how far away the spouse may work. If an employee wanted to live in a rural setting with acreage, the residency requirement would limit that ability. Likewise, a residency requirement also affects an employee when a change of circumstances occurs, such as a transfer of a spouse to a location where it is impractical to continue to work in the area or when a child's special needs cannot be accommodated by the educational services available within the city. Clearly, this ordinance has an influence on an employee not just while he or she is "on the clock." The ordinance has the clear effect of impacting the "comfort, health, safety, and general welfare of all employees." It certainly requires much less interpretation to find that these considerations are within the purview of Section 34, Article II, rather than to suggest that it applies only while the employee is physically "at work."
{¶ 124} Based on the foregoing, I would concur that R.C. 9.481 is a valid legislative enactment contemplated by Section 34, Article II of the Ohio Constitution, because it clearly affects the "comfort, health, safety, and general welfare of all employees." This is supported by our rules of construction and the precedent of Rocky River,43 Ohio St.3d 1, 539 N.E.2d 103.