Ohio Ass'n of Public School Employees v. City of Twinsburg

Douglas, J.,

dissenting. I must vigorously dissent to the position taken by the majority today. This decision is, I fear, an attempt to obtain through the back door what was not achieved via the front door in Kettering v. State Emp. Relations Bd. (1986), 26 Ohio St. 3d 50, 26 OBR 42, 496 N.E. 2d 983, i.e., the destruction of Ohio’s Public Employees’ Collective Bargaining Act. Appellees, and their right to enjoy the benefits of the civil service system, are manifestly of statewide concern. Yet, today’s majority has permitted a city to unilaterally withhold those statutorily mandated services from appellees. Clearly, the next step might be allowing cities to enact ordinances abrogating appellees’ right to collective bargaining. Moreover, the majority has ignored and is obviously attempting to circumvent both the will of the General Assembly and past decisions of this court.

The critical issue in this case is *186whether the city of Twinsburg may unilaterally exempt itself, pursuant to its powers of local self-government, from compliance with the prevailing civil service laws and leave the local multi-city school district totally without a civil service system. For the reasons that follow, I believe that they cannot.

Initially, it must be noted that “* * * cities’ powers of local self-government are not completely unfettered.” Kettering, supra, at 53, 26 OBR at 45, 496 N.E. 2d at 986. A city’s authority to enact legislation concerning civil service employees is limited both by Section 34, Article II4 and by Section 10, Article XV of the Ohio Constitution. Section 34, Article II, provides:

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power. ” (Emphasis added.)

This section “* * * manifests] the broad purposes of proclaiming and securing to the General Assembly the power to enact legislation establishing employee rights and protections.” Id. at 57, 26 OBR at 48, 496 N.E. 2d at 989 (Douglas, J., concurring). Furthermore, “* * * it should be emphasized that the foregoing section was adopted at the same time as was the home-rule section. It should be obvious that the drafters of * * * [this section] consciously included * * * a broad grant of authority to pass laws ‘for the comfort, health, safety and general welfare of all employees’ and then provided further that no other provision of the Constitution shall limit the power to enact legislation for the welfare of employees. If this section is read in the way in which it is written, there is no conflict on this subject between state legislative authority and the power granted local governments under home rule.” (Emphasis sic.) Id. at 57, 26 OBR at 49, 496 N.E. 2d at 989.

Similarly, in State, ex rel. Bd. of Trustees of Pension Fund, v. Bd. of Trustees of Relief Fund (1967), 12 Ohio St. 2d 105, 41 O.O. 2d 410, 233 N.E. 2d 135, a unanimous Supreme Court, interpreting Section 34, Article II, quickly disposed of the home-rule argument by stating that “[t]here can be no question that the adopters, the people, intended this section of the Constitution to apply both to local government and state employees. The cities and towns and other political subdivisions of the state of Ohio constitute en masse one of the largest of the employers in the state. It is our conclusion that the firemen and police of various localities of Ohio are employees within the scope of this provision. It appears in clear, certain and unambiguous language that no other provision of the Constitution may impair the intent, purpose and provisions of the above section of Article II.” Id. at 107, 41 O.O. 2d at 411-412, 233 N.E. 2d at 137.

Giving a literal reading to the constitutional provision and Bd. of Trustees, supra, it follows that any municipal ordinance, such as the one enacted by the city of Twinsburg, which conflicts with R.C. Chapter 143 (now 124) is invalid despite the city’s power of local self-government. It is hardly conceivable that a subject could be more closely linked with a civil service employee’s general welfare than the right to receive those civil service benefits provided by the Ohio Constitution.

Moreover, even were Section 34, Article II not dispositive of the instant *187cause, the city of Twinsburg’s ordinance must yield to the statewide concern regarding the civil service system in Ohio.

It is a fundamental principle of Ohio law that a municipality may not, in the regulation of local matters, infringe upon matters of general statewide concern. See, e.g., Cleveland Elec. Illum. Co. v. Painesville (1968), 15 Ohio St. 2d 125, 44 O.O. 2d 121, 239 N. E. 2d 75; Eastlake v. Bd. of Bldg. Stds. (1981), 66 Ohio St. 2d 363, 20 O.O. 3d 327, 422 N.E. 2d 598; State, ex rel. Evans, v. Moore (1982), 69 Ohio St. 2d 88, 23 O.O. 3d 145, 431 N.E. 2d 311; State, ex rel. Villari, v. Bedford Hts. (1984), 11 Ohio St. 3d 222, 11 OBR 537, 465 N.E. 2d 64; Kettering v. State Emp. Relations Bd., supra; State Personnel Bd. of Review v. Bay Village Civil Service Comm. (1986), 28 Ohio St. 3d 214, 28 OBR 298, 503 N.E. 2d 518. Further, municipal regulations which-have significant extra-territorial effects are matters of statewide concern. Painesville, supra; Canton v. Whitman (1975), 44 Ohio St. 2d 62, 66, 73 O.O. 2d 285, 287, 337 N.E. 2d 766, 770; State, ex rel. Evans, v. Moore, supra; Kettering, supra; Bay Village Civil Service Comm., supra.

Although the statewide-concern doctrine was first enunciated by this court in Bucyrus v. Dept. of Health (1929), 120 Ohio St. 426, 166 N.E. 370, the concept has more recently been articulated in a number of cases, including Cleveland Elec. Illum. Co. v. Painesville, supra, at 129, 44 O.O. 2d at 123, 239 N.E. 2d at 78, wherein we stated: “Thus, even if there is a matter of local concern involved, if the regulation of the subject matter affects the general public of the state as a whole more than it does the local inhabitants the matter passes from what was a matter for local government to a matter of general state interest.” The statewide-concern doctrine was also discussed in Beachwood v. Bd. of Elections of Cuyahoga Cty. (1958), 167 Ohio St. 369, 371, 5 O.O. 2d 6, 7-8, 148 N.E. 2d 921, 923, where it was stated: “To determine whether legislation is such as falls within the area of local self-government, the result of such legislation or the result of the proceedings thereunder must be considered. If the result affects only the municipality itself, with no extraterritorial effects, the subject is clearly within the power of local self-government and is a matter for the determination of the municipality. However, if the result is not so confined it becomes a matter for the General Assembly.” Further, the doctrine was discussed in Kettering, supra, at 55, 26 OBR at 47, 496 N.E. 2d at 988: “What the statewide concern doctrine perceives is that a comprehensive statutory plan is, in certain circumstances, necessary to promote the safety and welfare of all the citizens of this state, be they public employees or those whom public employees must serve and protect. As we stated in State, ex rel. McElroy, v. Akron (1962), 173 Ohio St. 189, 192, 19 O.O. 2d 3, 4, 181 N.E. 2d 26, 28, ‘[d]ue to our changing society, many things which were once considered a matter of purely local concern and subject strictly to local regulation, if any, have now become a matter of statewide concern, creating the necessity for statewide control.’ ”

Thus, it can be seen that some matters which were once considered purely local have now become matters of statewide concern necessitating statewide control. The civil service system is obviously of statewide concern and requires statewide control. R.C. Chapter 124 sets forth a comprehensive statutory plan for civil service within this state. Furthermore, Section 10, Article XV of the Ohio Constitution requires the state, counties and cities to administer civil service. *188Accordingly, given the comprehensive statutory and constitutional provisions regulating the area, the fact that civil service is of statewide concern cannot honestly be disputed.

Likewise, there is no question that city school districts are encompassed within the civil service system and are thus of statewide concern. Section 10, Article XV of the Ohio Constitution provides:

“Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to • be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.” (Emphasis added.)

In State, ex rel. Cincinnati, v. Urner (1947), 147 Ohio St. 305, 308, 34 O.O. 228, 229, 70 N.E. 2d 881, 882-883, we stated that:

“In 1912, the people wrote into the Constitution a provision declaring the public policy of this state with reference to civil service and requiring that laws shall be passed for the enforcement of that constitutional provision (Section 10, Article XV). Thereafter the General Assembly passed what is commonly known as the Civil Service Code (Sections 486-la. to 486-31, both inclusive, General Code) [now R.C. Chapter 124]. All offices and positions of trust or employment in the service of the state, counties, cities and city school districts are embraced within the term ‘civil service’ (Section 486-la, General Code) [now R.C. 124.01(A)].” See, also, State, ex rel. Brand, v. Eversman (1951), 155 Ohio St. 383, 386, 44 O.O. 370, 372, 99 N.E. 2d 169, 171, and State, ex rel. Sigall, v. Aetna (1976), 45 Ohio St. 2d 308, 312, 74 O.O. 2d 471, 473, 345 N.E. 2d 61, 64, wherein this court stated that:
“The last sentence of that constitutional provision [Section 10, Article XV] clearly requires the conclusion that enactment of legislation must precede execution of the constitutional mandate. Stated another way, Section 10, Article XV is not self-executing, but can be implemented through legislation.
“Such legislation exists in Ohio and appears as R.C. Chapter 124. The provisions of R.C. Chapter 124, so far as pertinent to this appeal, are as follows:
“R.C. 124.01, the definitional section of R.C. Chapter 124, provides, in pertinent part:
“ ‘(A) “Civil service” includes all offices and positions of trust or employment in the service of the state and the counties, cities, city health districts, general health districts, and city school districts thereof.’ ”

R.C. Chapter 124 constitutes the legislation implementing Section 10, Article XV of the Ohio Constitution. That chapter expressly provides that city school districts, including multicity school districts, are within the definition of civil service. Thus, to say that such chapter does not provide a comprehensive statutory plan necessary to protect the safety and welfare of all citizens of this state defies both logic and this court’s prior pronouncements.

Moreover, today’s holding substantially frustrates the policy behind our civil service system. Kettering, supra, at 55, 26 OBR at 47, 496 N.E. 2d at 988. See State, ex rel. Sigall, v. Aetna, supra, at 314, 74 O.O. 2d at 474, 345 N.E. 2d at 65, wherein this court stated that “* * * a purpose of the merit system in the civil service is to eradicate the spoils system by protecting an employee who has civil service tenure from being arbitrarily discharged and replaced with a political appointee.” See, also, State, ex rel. Buckman, v. Munson (1943), 141 Ohio St. 319, 25 O.O. 455, 48 N.E. 2d 109, paragraph one of the syllabus:

*189“The fundamental purpose of civil service laws and rules is to assure appointments and promotions in the public service based upon merit and fitness and to safeguard appointees in the classified service against unjust charges of misconduct or inefficiency and from being unjustly discriminated against for religious or political reasons or affiliations.”

Finally, I am in complete agreement with the holding in State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St. 2d 47, 4 O.O. 3d 116, 362 N.E. 2d 266. In Stough, this court stated that, “jurisdiction over city school district employees is granted and directed to be exercised by statute, in accordance with the state’s authority over public education under Section 3, Article VI of the Ohio Constitution. A city charter has no effect upon this statutory grant of jurisdiction. ” (Emphasis added.) Id. at 49, 4 O.O. 3d at 117, 362 N.E. 2d at 268. Therefore, the city of Twinsburg is powerless to interfere with the state’s exercise of civil service jurisdiction over city school district employees.

Accordingly, I believe that Twins-burg’s ordinance at best interferes with a statewide concern and at worst contravenes Ohio’s Constitution. Therefore, I would affirm the judgment of the court of appeals.

Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion.

The issue of Section 34, Article II of the Ohio Constitution was not specifically raised by the parties.