Local 4501, Communications Workers of America v. Ohio State University

Wright, J.,

concurring. I vigorously disagree with the breadth and content of this court’s previous decision in Local 4501 v. Ohio State Univ. (1984), 12 Ohio St. 3d 274. I cannot disagree, however, with today’s decision, which rejects the blanket prohibition that precluded every element of government from contracting out for services.

I am more than pleased that the majority has, in essence, limited Local 4501 to its facts. The majority has breathed life back into State, ex rel. Sigall, v. Aetna (1976), 45 Ohio St. 2d 308 [74 O.O.2d 471], by citing with approval the proposition that a public employer “ ‘may lawfully contract to have an independent contractor perform services which might also be performed by civil service employees.’ ” Id. at 315. As was clearly demonstrated in the amicus curiae brief of the Ohio Department of Administrative Services, a contrary posture would have cost our taxpayers hundreds of thousands of dollars.

The Ohio Constitution imposes upon the state the duty to provide and support a number of sovereign programs. For example, the General Assembly must provide for a thorough and efficient school system, the care of the state’s needy and mentally disabled, the protection of workers, and the protection of our natural resources. See Section 2, Article VI, Ohio Constitution; Section 1, Article VII, Ohio Constitution; Sections 34, 35 and 36, Article II, Ohio Constitution. The Constitution not only mandates that all these programs or services be provided, but also requires that they be provided in a cost-efficient manner. Section 3, Article VIII, and Section 4, Article XII, of the Ohio Constitution require the state to have a balanced budget at the close of each fiscal year. Our decision today promotes these mandates.

The goals and values of these constitutional requirements are certainly as compelling as the goals articulated in the civil service provisions of Section 10, Article XV of the Ohio Constitution. That section should not be elevated above other constitutional provisions that admonish state officials to maintain a balanced budget while providing important state services. The standard for contracting out that was adopted in Local 4501 created *198the certain prospect of a loss of cost-savings associated with contracting out by the state and its political subdivisions.

As today’s majority has recognized, it is simply unreasonable to hold that particular services rendered by the state or an entity of local government must be performed exclusively by civil service employees.

The Ohio State University has contracted’out for custodial services since 1967. Further, state and local governments in Ohio have contracted out for services, even though identical services were available from the classified service, for many years. See Cleveland v. Lausche (1943), 71 Ohio App. 273 [26 O.O. 123]. Despite court challenges to contracting for services, this practice has uniformly been upheld as long as such contracts were not the consequence of political favoritism. See, e.g., Sigall, supra; State, ex rel. Ohio Civil Serv. Emp. Assn., v. Coshocton (1982), 5 Ohio App. 3d 5; Sovine v. Teater (1976), 47 Ohio App. 2d 254 [1 O.O.3d 146]; Cleveland v. Lausche, supra.

The General Assembly has never seen fit to enact any statute restricting public employers from contracting for outside services in favor of services provided by civil service employees, or requiring that before employers contract out they must first attempt to obtain the needed services from the civil service. Indeed, the legislature has specifically authorized contracting out by requiring competitive bidding in contracts of significant dollar amounts, R.C. 125.071, and providing for minority set-aside programs to assure that minority contractors will participate in this contracting out, R.C. 125.081.

While I certainly agree with the majority’s limitation of this court’s prior holding in Local 4501, I also must concur that the trial court did appear to ignore that previous holding.

Accordingly, I concur.