City of Kettering v. State Employment Relations Bd., 85-1459

• Decision Date: 20 August 1986
• Docket Number: No. 85-1459,85-1459
• Citation: 26 OBR 42,496 N.E.2d 983,26 Ohio St.3d 50
• Parties: , 26 O.B.R. 42, 1984-86 SERB 382 CITY OF KETTERING, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees.
• Court: Ohio Supreme Court

Page 50

26 Ohio St.3d 50

496 N.E.2d 983, 26 O.B.R. 42, 1984-86 SERB 382

CITY OF KETTERING, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellees.

No. 85-1459.

Supreme Court of Ohio.

Aug. 20, 1986.

Syllabus by the Court

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.

This appeal arises from a complaint filed by the city of Kettering on April 23, 1984, seeking a declaratory judgment that R.C. 4117.01(F)(2) is unconstitutional.

In 1970, Kettering adopted Resolution No. 2017-70, setting forth its collective bargaining policy regarding municipal employees. That resolution, later codified as Ordinance No. 3106-84, excluded from collective bargaining units all supervisory employees or those who formulate personnel policy. Pursuant to the resolution the city has, since 1970, declined to recognize or bargain with any employee organization representing police sergeants, lieutenants or captains.

On April 1, 1984 Ohio's new Public Employees Collective Bargaining Act, R.C. 4117.01 et seq., became effective. As pertinent to this appeal, R.C. 4117.01(C)(10) excludes supervisors from the Act's coverage. However, R.C. 4117.01(F)(2) specifically provides as follows:

"With respect to members of a police or fire department, no person shall be deemed a supervisor except the chief of the department or those individuals who, in the absence of the chief, are authorized to exercise the authority and perform the duties of the chief of the department * * *."

Also on April 1, 1984, Teamsters Local No. 740 filed a petition with the State Employment Relations Board pursuant to R.C. 4117.07 seeking certification as the exclusive bargaining representative of Kettering's police sergeants, lieutenants and captains. Shortly thereafter, Kettering filed its complaint requesting the declaratory judgment and seeking an injunction to prevent recognition of and collective bargaining with representatives of its police command officers.

The parties filed motions for summary judgment in October 1984. The trial court granted summary judgment in favor of the appellees on the basis that the General Assembly's exercise of its police power on a matter of statewide concern in enacting R.C. Chapter 4117 prevailed over the city's ordinance. This determination was affirmed by the court of appeals.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Denlinger, Rosenthal & Greenberg, Dean E. Denlinger and John W. Fischer, Cincinnati, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen. and Loren L. Braverman, Asst. Atty. Gen., for appellee State Employment Relations Bd.

Logothetis & Pence, Bruce E. Pence and Mary Jo S. Korona, Dayton, for appellee Teamsters Local 740.

Berkman, Gordon, Murray & Palda, George W. Palda and Richard T. Bush, Cleveland, for appellee AFSCME.

Gurley, Rishel, Myers & Kopech and Marc E. Myers, Columbus, urging affirmance for amicus curiae, Ohio Fraternal Order of Police, Inc.

Jaffy, Livorno, Kaufmann & Arnett Co., L.P.A., Stewart R. Jaffy and Henry A. Arnett, Columbus, urging affirmance for amicus curiae, Ohio Ass'n of Professional Firefighters.

John D. Maddox, Law Director, Gregory S. Lashutka, City Atty., Richard A. Castellini, William E. Lang, City Sols., W. McGregor Dixon, Jr., Russell A. Olson, Law Directors, Calfee, Halter & Griswold, John E. Gotherman and William E. Coughlin, Cleveland, urging reversal for amicus curiae, Ohio Mun. League.

CELEBREZZE, Chief Justice.

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, 402 N.E.2d 519 . As Justice Locher stated in State v. Dorso (1983), 4 Ohio St.3d 60, 61, 446 N.E.2d 449, "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, 128 N.E.2d 59 , 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, 239 N.E.2d 75 , 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 Cuyahoga County, 167 Ohio St. 369, 371, 148 N.E.2d 921 :

" '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, 374 N.E.2d 154 ; State, ex rel. Evans, v. Moore (1982), 69 Ohio St.2d 88, 90, 431 N.E.2d 311 ; State, ex rel. Villari, v. Bedford Hts. (1984), 11 Ohio St.3d 222, 465 N.E.2d 64; Weir v. Rimmelin (1984), 15 Ohio St.3d 55, 472 N.E.2d 341; State, ex rel. Adkins, v. Sobb (1986), 26 Ohio St.3d 46, 496 N.E.2d 994. 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, 488 N.E.2d 181, prior to passage of the Act there had been over four hundred public employee work stoppages in Ohio between 1973 and 1980....