City of Kettering v. State Employment Relations Board

496 N.E.2d 983, 26 Ohio St. 3d 50, 26 Ohio B. 42, 1986 Ohio LEXIS 747

• Court: Ohio Supreme Court
• Decided: August 20, 1986
• Docket: No. 85-1459
• Status: Published

Opinions

Celebrezze, C.J.

The issue presented is whether R.C. 4117.01(F)(2), which would require Kettering to bargain collectively with a union representing its police command officers, is constitutional and, if so, whether Kettering’s local ordinance runs afoul of that provision. Kettering contends that the management of its police department is a power of local self-government with which the state cannot interfere pursuant to Section 3, Article XVIII of the Ohio Constitution.¹ The city asserts that membership in a union would lead to divided loyalty among police command officers, thus breaking down its ability to control and manage the department. This position has the potential to dismantle the collective bargaining rights granted to municipal employees and in large measure could defeat the laudable purposes of the Public Employees Collective Bargaining Act.² For the reasons that follow, we reject the city of Kettering’s contention.

Initially, it is important to observe that legislative enactments “have a strong presumption of constitutionality.” Benevolent Assn. v. Parma (1980), 61 Ohio St. 2d 375, 377 [15 O.O.3d 450]. As Justice Locher stated in State v. Dorso (1983), 4 Ohio St. 3d 60, 61, “courts must apply all presumptions * * * so as to uphold, if at all possible, a statute or ordinance assailed as unconstitutional.” See, also, State, ex rel. Dickman, v. Defenbacher (1955), 164 Ohio St. 142 [57 O.O. 134], paragraph one of the syllabus. Thus, in the instant case, Kettering must rebut the presumption of constitutionality attaching to R.C. 4117.01(F)(2).

We conclude that the city has failed to overcome that presumption. The evidence in the record is not convincing regarding appellant’s claim that union representation of Kettering’s police command officers would indeed interfere with the city’s local self-government power to manage the department. To the contrary, there is abundant evidence, including affidavits from chiefs of police and city management, supporting the view that membership in a superior officer’s association would not lead to divided loyalties or interfere with the city’s ability to manage its police department through its command officers.³

Additionally, the Public Employees Collective Bargaining Act itself explicitly preserves the important local self-government management powers. A city may, in accordance with R.C. 4117.08(C):

“(1) Determine matters of inherent managerial policy which include, but are not limited to areas of discretion or policy such as the functions and programs of the public employer, standards of services, its overall budget, utilization of technology, and organization structure;

“(2) Direct, supervise, evaluate, or hire employees;

“(3) Maintain and improve the efficiency and effectiveness of governmental operations;

“(4) Determine the overall methods, process, means, or personnel by which governmental operations are to be conducted;

“(5) Suspend, discipline, demote, or discharge for just cause, or lay off, transfer, assign, schedule, promote, or retain employees;

“(6) Determine the adequacy of the work force;

“(7) Determine the overall mission of the employer as a unit of government;

“(8) Effectively manage the work force;

“(9) Take actions to carry out the mission of the public employer as a governmental unit.”

Police command officers must, of course, still carry out the legitimate orders of their superiors and are subject to traditional avenues of discipline if they do not. Lawful promotions may still be controlled by the city. The responsibility and authority to control all police department employees therefore remains squarely with the city. Appellant has not demonstrated that requiring it to bargain collectively with its police command officers would work an unconstitutional interference with its local self-government power to manage its police department.

Further, the cities’ powers of local self-government are not completely unfettered. This court has previously acknowledged that, in matters of statewide concern, municipal powers of local self-government may be subordinate to the exercise of the state’s police powers. This principle was cogently stated in Cleveland Electric Illuminating Co. v. Painesville (1968), 15 Ohio St. 2d 125, 129 [44 O.O.2d 121], where we held:

“The power granted under Section 3 of Article XVIII relates to local matters and even in the regulation of such local matters a municipality-may not infringe on matters of general and statewide concern.

“The test as to matters of local self-government is set forth in the opinion of Beachwood v. Board of Elections of Cuyahoqa County, 167 Ohio St. 369, 371 [5 O.O.2d 6]:

“ ‘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.’

“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. ” (Emphasis added.) Accord Columbus v. Teater (1978), 53 Ohio St. 2d 253 [7 O.O.3d 410]; State, ex rel. Evans, v. Moore (1982), 69 Ohio St. 2d 88, 90 [23 O.O.3d 145]; State, ex rel. Villari, v. Bedford Hts. (1984), 11 Ohio St. 3d 222; Weir v. Rimmelin (1984), 15 Ohio St. 3d 55; State, ex rel. Adkins, v. Sobb (1986), 26 Ohio St. 3d 46.⁴

The statewide concern doctrine is certainly applicable in the instant case. Undeniably, the General Assembly was exercising its police power to promote the general safety and welfare in enacting the Public Employees Collective Bargaining Act. As we just observed in State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, 5, prior to passage of the Act there had been over four hundred public employee work stoppages in Ohio between 1973 and 1980. The Act was designed to “minimize the possibility of public-sector labor disputes,” to bring “stability and clarity to an area where there had been none,” and to “facilitate the determination of the rights and obligations of government employees and employers, and give them more time to provide safety, education, sanitation, and other important services.” Id.

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], “[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.”

Surely this is such a case. Ohio’s unfortunate experience with public employee labor strife, described in Dayton Fraternal Order of Police, supra, graphically illustrates the need for a statewide framework of collective bargaining for all employees of the state and local governments. The necessity of a statewide approach has been persuasively endorsed by the Supreme Court of California. In Baggett v. Gates (1982), 32 Cal. 3d 128, 139-140, 185 Cal. Rptr. 232, 649 P. 2d 874, the California high court rejected a home-rule challenge to that state’s Public Safety Officers’ Procedural Bill of Rights Act, reasoning as follows:

“* * * [I]t can hardly be disputed that the maintenance of stable employment relations between police officers and their employers is a matter of statewide concern. The consequences of a breakdown in such relations are not confined to a city’s borders. These employees provide an essential service. Its absence would create a clear and present threat not only to the health, safety and welfare of the citizens of the city, but also to the hundreds, if not thousands, of nonresidents who daily visit there. Its effect would also be felt by the many nonresident owners of property and businesses located within the city’s borders. Our society is no longer a collection of insular local communities. Communities today are highly interdependent. The inevitable result is that labor unrest and strikes produce consequences which extend far beyond local boundaries.”

Similarly, the enactment of statutes governing public-sector labor relations in Ohio has become a matter of statewide concern which, in the instant case, must prevail over Kettering’s attempt to nullify a key and unambiguous statutory provision of the Public Employees Collective Bargaining Act. A myopic insistence on returning a significant portion of Ohio’s public employee labor relations to the pre-Act ad hoc “system,” under the rubric of local self-government powers, only invites a return to the very litigation and controversy which had prompted the General Assembly to address that distressing state of affairs.⁵ We therefore hold that R.C. 4117.01(F)(2) is constitutional and does not violate a municipality’s right to exercise its powers of local self-government under Section 3, Article XVIII of the Ohio Constitution.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, C. Brown and Douglas, JJ., concur. Douglas, J., concurs with opinion. Locher, Holmes and Wright, JJ., dissent.

1 Section 3, Article XVIII reads as follows:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

2 Earlier this year, in State, ex rel. Dayton Fraternal Order of Police Lodge No. 44, v. State Emp. Relations Bd. (1986), 22 Ohio St. 3d 1, this court struck down the so-called “Dayton Amendment” of R.C. 4117.01(F)(2). This amendment, which would have excluded all Dayton police sergeants, lieutenants and captains from participation in the new Public Employees Collective Bargaining Act, R.C. 4117.01 et seq., was found to be violative of Section 26, Article II and Section 2, Article I of the Ohio Constitution. This court refused to deny Dayton’s police command officers “the collective bargaining rights enjoyed by all other similarly situated municipal employees in Ohio.” Id. at 6.

Kettering now claims that it, and other Ohio cities, should be free to exclude police command officers from the Public Employees Collective Bargaining Act in the name of municipal home rule powers.

3 Among the numerous affidavits in the record is that of Joseph Dominelli, Executive Director of the New York State Association of Chiefs of Police, who stated, inter alia, as follows:

“It has been my experience and it is my opinion, that superior officers are professionals in every sense of the word and that they are totally committed to providing the best law enforcement and police protection possible. It is my opinion that membership in a superior officers association would not lead to a division of loyalty so as to impair their ability to perform their sworn duty to provide law enforcement and police protection.”

This view is reinforced in the affidavit of Charles C. Petro, Jr., retired Chief of Police of Lakewood, Ohio:

“In all of my experience and contact in the labor relations field I have never heard of a complaint or of a concern by a city official or a police administrator that unionized superior officers have failed or would fail to act in an appropriate manner towards subordinates due to union loyalties, even where superior officers were members of the same union and of the same bargaining unit as their subordinates. Particularly in small or medium-sized communities and within units of larger departments, labor and management work side by side performing some of the same functions, often in life-threatening situations. The strong personal and working relationships which are developed and the paramilitary discipline'present in police departments have always taken precedence over the factor of union loyalty and brotherhood.”

And, the Deputy Mayor of Akron, Mathew L. Contessa, also stated that union representation of command officers has not lessened that city’s ability to manage its police force:

“* * * I am aware of numerous examples of command officers carrying out their disciplinary duties without regard to their union or bargaining unit membership.

“* * * Patrolmen as well as command officers have always performed their duty of directing, investigating and disciplining police officers who were fellow F.O.P. members and members of the same bargaining unit.

“* * * There have been no episodes of which I am aware in which union membership has been a factor in the failure of supervision, administration of discipline, or investigation of infractions of rules.

“* * * As a result of my personal experience, I can say that paramilitary discipline has prevailed in every instance over union loyalties in the Akron Police Department.”

4 We stated in Columbus v. Teater, supra, at 257 that “[tjhe police power [of the state] and the power of local self-government are constitutional grants of authority equal in dignity. The state may not restrict the exercise of self-government within a municipality. Furthermore, a municipality may exercise the police power within its borders. However, the general laws of the state remain supreme in the exercise of that power, even if the issue is one which might also be a proper subject of municipal legislation.” This court, in Columbus v. Teater, supra, at 260 noted that “various Constitutional Convention pronouncements concerning Article XVIII demonstrate that the Home Rule Amendment leaves municipal authorities subordinate to the state police power in matters of statewide import. ” (Emphasis added.)

In Weir v. Rimmelin, supra, at 56, Justice Holmes, writing for the court, explained:

“The Home Rule Amendment to the Ohio Constitution confers a significantly high degree of sovereignty upon municipalities. * * * However, the amendment does not provide cities the absolute power of local self-government. * * * Where the General Assembly has enacted legislation pursuant to the state’s police power which governs a statewide concern, the statute takes precedence over ordinances enacted under the home rule authority of municipalities.”

In State, ex rel. Villari, supra, at 225 we observed that “[w]here a statute addresses matters of general and statewide concern in an area otherwise subject to municipal regulation, the statute will govern.”

In State, ex rel. Adkins, supra, at 48, Justice Wright, writing for the majority, stated in pertinent part:

“The city argues that it is entitled to regulate the vacation leave of its employees pursuant to its powers of local self-government under Sections 3 and 7, Article XVIII of the Ohio Constitution. State law must govern, however, when a statute addresses a matter of general and statewide concern in an area otherwise subject to municipal regulation.”

Further, although Kettering relies on Benevolent Assn. v. Parma, supra, we note that the Parma court specifically stated at 383, fn. 5 that “[t]he concept of statewide concern is not applicable in the instant-cause.”

In the instant appeal, we believe that public employee collective bargaining is a matter of statewide concern sufficient to prevail over the city’s ordinance and that the city has not shown that R.C. 4117.01(F)(2) would, in any event, interfere with its local self-government power to manage its police department.

5 Further, if the appellant city wishes to challenge the wisdom of the Public Employees Collective Bargaining Act, its resort is to the legislature and the political process rather than to the courts. It is fundamental that courts do not sit to determine the wisdom of legislation. State, ex rel. Downing, v. Peters (1932), 125 Ohio St. 108; State, ex rel. Bracken, v. Weber (1939), 136 Ohio St. 140 [16 O.O. 77]; Perry v. Indus. Comm. (1954), 160 Ohio St. 520 [52 O.O. 387],