State ex rel. Ohio Civ. Serv. Emps. Assn. v. State (Slip Opinion) , 146 Ohio St. 3d 315 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohio Civ. Serv. Emps. Assn. v. State, Slip Opinion No. 2016-Ohio-478.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-478
THE STATE EX REL. OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION ET AL.,
APPELLEES AND CROSS-APPELLANTS, v. THE STATE OF OHIO ET AL.,
APPELLANTS AND CROSS-APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ohio Civ. Serv. Emps. Assn. v. State,
Slip Opinion No. 2016-Ohio-478.]
2011 Am.Sub.H.B. No. 153 does not violate one-subject rule of Article II, Section
15(D), Ohio Constitution―“Prison-privatization provisions” do not
violate prohibition in Article VIII, Section 4, Ohio Constitution against state
financial involvement with private enterprise― State Employee Relations
Board has exclusive jurisdiction to determine whether employees of
privately owned or operated prisons are public employees, as defined by
R.C. 4117.01(C).
(Nos. 2014-0319—Submitted May 20, 2015—Decided February 11, 2016.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County,
No. 12AP-1064, 2013-Ohio-4505.
SUPREME COURT OF OHIO
____________________
FRENCH, J.
{¶ 1} This appeal asks whether 2011 Am.Sub.H.B. No. 153 (“H.B. 153”),
the budget bill for the 2012-2013 biennium, violates the Ohio Constitution.
Specifically, we consider whether H.B. 153 violates the one-subject rule in Article
II, Section 15(D) of the Ohio Constitution or the prohibition against state financial
involvement with private enterprise in Article VIII, Section 4 of the Ohio
Constitution. We must also decide whether a court of common pleas, or only the
State Employee Relations Board (“SERB”), has jurisdiction to determine whether
employees of privately owned or operated prisons are public employees, as defined
by R.C. 4117.01(C). We hold that H.B. 153 is constitutional and that SERB has
exclusive jurisdiction to determine public-employee status under R.C. 4117.01(C).
Background
{¶ 2} In H.B. 153, the General Assembly appropriated operating funds to
the state government and its programs for the biennium beginning July 1, 2011, and
ending June 30, 2013. The title of the bill states that it provides “authorization and
conditions for the operation of programs, including reforms for the efficient and
effective operation of state and local government.” We are specifically concerned
here with provisions in H.B. 153 that deal with the operation, management, and sale
of state correctional facilities.
{¶ 3} Both before and after the enactment of H.B. 153, R.C. 9.06(A)(1)
permitted state and local governments to contract for the private operation and
management of correctional facilities. Those contracts are subject to numerous
conditions, the most salient of which is that “the contractor shall convincingly
demonstrate to the public entity that it can operate the facility with the inmate
capacity required by the public entity and provide the services required in this
section and realize at least a five per cent savings over the projected cost to the
public entity of providing these same services * * *.” R.C. 9.06(A)(4). Section
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753.10 of H.B. 153 modified prior law governing contracts for the private operation
and management of a state correctional institution in several ways. As relevant
here, section 753.10 identified five correctional facilities—Lake Erie Correctional
Facility, Grafton Correctional Institution, North Coast Correctional Treatment
Facility, North Central Correctional Institution, and North Central Correctional
Institution Camp—and authorized the Director of Administrative Services and the
Director of Rehabilitation and Correction to contract for the operation,
management, and sale of those facilities. H.B. 153, section 753.10(B)(1), (C)(1)
and (2), (D)(1) and (2), (E)(1) and (2), (F)(1) and (2), and (G)(1) and (2). H.B. 153
also added subsection (J) to R.C. 9.06. The new subsection sets out conditions that
apply if a private contractor executes a contract not only to operate and manage a
correctional facility, but also to purchase that facility from the public entity.
Collectively, we refer to these portions of H.B. 153 as the “prison-privatization
provisions.”
{¶ 4} Two private companies took advantage of the prison-privatization
opportunity. Respondent-appellee Management & Training Corporation (“MTC”)
signed a contract for the operation and management of North Central Correctional
Institution (renamed North Central Correctional Complex). And respondent-
appellee Corrections Corporation of America (“Corrections Corporation”)
purchased Lake Erie Correctional Facility1 and signed a related operation and
management contract.
{¶ 5} Appellees and cross-appellants are the Ohio Civil Service Employees
Association, the labor union representing Ohio’s public employees;
ProgressOhio.org; and numerous former employees of North Central Correctional
1
The Governor’s Deed names CCA Western Properties, Inc., as the grantee.
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Complex, Lake Erie Correctional Facility, and Marion Correctional Institution.2
We refer to appellees and cross-appellants collectively as “OCSEA.”
{¶ 6} OCSEA filed this action in the Franklin County Court of Common
Pleas. In its amended complaint, OCSEA named as defendants-respondents MTC,
Corrections Corporation, CCA Western Properties, Inc., and the following
government entities, officials, and agencies: the state of Ohio; Governor John R.
Kasich; Attorney General Mike DeWine; Secretary of State Jon Husted; Auditor of
State David Yost; the Department of Rehabilitation and Correction (“DRC”) and
its director, Gary C. Mohr; the Department of Administrative Services (“DAS”)
and its director, Robert Blair; Ashtabula County Treasurer Dawn M. Cragon;
Ashtabula County Auditor Roger A. Corlett; Ashtabula County Recorder Judith A.
Barta (now retired); State Treasurer Josh Mandel; and the Office of Budget and
Management and its director, Timothy S. Keen. We refer to the government
defendants-respondents collectively as the “state respondents.”
{¶ 7} OCSEA’s amended complaint raised several claims. As relevant
here, it alleged the following: (1) H.B. 153, in its entirety, violates the one-subject
rule contained in Article II, Section 15(D) of the Ohio Constitution, (2) even if the
bill is not found to be unconstitutional in its entirety, the prison-privatization
provisions in H.B. 153 violate the one-subject rule, and (3) the prison-privatization
provisions in H.B. 153 violate Article VIII, Section 4 of the Ohio Constitution,
which prohibits the joinder of public and private property rights. OCSEA requested
relief in the form of, inter alia, a declaration that H.B. 153 is unconstitutional in its
entirety and that any contracts entered into under its provisions are null and void,
as well as a writ of mandamus ordering the reinstatement of the individual plaintiffs
to their positions with full back pay and benefits. In the alternative, it sought a
2
Two of the individual employee-plaintiffs were allegedly displaced from their positions at the
Marion Correctional Institution by individuals laid off from North Central Correctional Complex
who had more seniority.
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declaratory judgment that MTC employees who work at North Central Correctional
Complex are public employees, as defined by R.C. 4117.01(C), and are entitled to
the corresponding public-employee benefits.
{¶ 8} The state respondents filed a motion to dismiss OCSEA’s amended
complaint pursuant to Civ.R. 12(B)(6), for failure to state a claim on which relief
can be granted, and Civ.R. 12(B)(1), for lack of subject-matter jurisdiction. The
trial court dismissed OCSEA’s complaint in its entirety. The trial court held that it
lacked jurisdiction to determine individual employee rights, including whether the
named employees were public employees under R.C. 4117.01(C). The court further
held that it had jurisdiction over the constitutional challenges to H.B. 153, but that
OCSEA failed to state a claim that H.B. 153 was unconstitutional.
{¶ 9} The Tenth District Court of Appeals reversed the dismissal of
OCSEA’s one-subject-rule claim and ordered the trial court to hold an evidentiary
hearing on remand to determine whether H.B. 153 has only one subject and, if not,
to sever any offending provisions. 2013-Ohio-4505, 2 N.E.3d 304, ¶ 24. But the
Tenth District affirmed the dismissal of OCSEA’s claim that H.B. 153 violates the
prohibition against joint public-private property ventures in Article VIII, Section 4
of the Ohio Constitution and OCSEA’s claim for a declaration that the individuals
working at North Central Correctional Complex are public employees.
{¶ 10} The state respondents and MTC filed discretionary appeals in this
court, and OCSEA filed a cross-appeal. We accepted jurisdiction. 139 Ohio St. 3d
1428, 2014-Ohio-2725, 11 N.E.3d 284.
{¶ 11} The parties assert seven propositions of law, which we distill to the
following issues: (1) whether the prison-privatization provisions of H.B. 153 or
H.B. 153 in its entirety violate the one-subject rule, (2) whether a provision in the
contract for the sale of Lake Erie Correctional Facility that requires the state to pay
an annual ownership fee constitutes a subsidy that violates Article VIII, Section 4
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of the Ohio Constitution, and (3) whether the courts of common pleas can determine
public-employee status under R.C. 4117.01(C).
Analysis
{¶ 12} To begin our analysis, we look to the applicable standards of review.
We review dismissals pursuant to Civ.R. 12(B)(6) de novo. Perrysburg Twp. v.
Rossford, 103 Ohio St. 3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. Therefore, in
reviewing a Civ.R. 12(B)(6) motion to dismiss, we presume that the complaint’s
factual allegations are true and make all reasonable inferences in the nonmoving
party’s favor. Mitchell v. Lawson Milk Co., 40 Ohio St. 3d 190, 192, 532 N.E.2d
753 (1988). We may affirm a judgment granting the motion only when there is no
set of facts under which the nonmoving party could recover. O’Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St. 2d 242, 327 N.E.2d 753 (1975),
syllabus. Appellate courts similarly apply a de novo standard when reviewing a
motion to dismiss for lack of subject-matter jurisdiction under Civ.R. 12(B)(1).
Groza-Vance v. Vance, 162 Ohio App. 3d 510, 2005-Ohio-3815, 834 N.E.2d 15,
¶ 13 (10th Dist.). Thus, on that issue, we consider whether the complaint raises any
cause of action cognizable by the forum. Id.
{¶ 13} Beyond these standards based upon the Civil Rules, OCSEA’s
constitutional claims bring into play additional considerations. When a claim
challenges a statute’s constitutionality, we begin with the presumption that the
statute is constitutional. State v. Carswell, 114 Ohio St. 3d 210, 2007-Ohio-3723,
871 N.E.2d 547, ¶ 6. We will declare the statute unconstitutional only if we
conclude that it is unconstitutional beyond a reasonable doubt. Doyle v. Ohio Bur.
of Motor Vehicles, 51 Ohio St. 3d 46, 47, 554 N.E.2d 97 (1990).
{¶ 14} With these standards in mind, we turn to OCSEA’s specific claims.
A. The One-Subject-Rule Challenges
{¶ 15} Article II, Section 15(D) of the Ohio Constitution contains the one-
subject rule: “No bill shall contain more than one subject, which shall be clearly
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expressed in its title.” The purpose of the rule is to prevent logrolling, which occurs
when legislators combine disharmonious proposals in a single bill to ensure passage
of proposals that might not have won acceptance on their own. State ex rel. Dix v.
Celeste, 11 Ohio St. 3d 141, 142-143, 464 N.E.2d 153 (1984).
{¶ 16} Although this court has described the one-subject rule as mandatory,
In re Nowak, 104 Ohio St. 3d 466, 2004-Ohio-6777, 820 N.E.2d 335, ¶ 54, our role
in its enforcement remains limited. To accord appropriate deference to the General
Assembly’s law-making function, we must liberally construe the term “subject” for
purposes of the rule. State ex. rel. Ohio Academy of Trial Lawyers v. Sheward, 86
Ohio St. 3d 451, 498, 715 N.E.2d 1062 (1999).
{¶ 17} The one-subject rule does not prohibit a plurality of topics, only a
disunity of subjects. State ex rel. Hinkle v. Franklin Cty. Bd. of Elections, 62 Ohio
St.3d 145, 148, 580 N.E.2d 767 (1991). The mere fact that a bill embraces more
than one topic is not fatal as long as a common purpose or relationship exists
between the topics. Hoover v. Franklin Cty. Bd. of Commrs., 19 Ohio St. 3d 1, 6,
482 N.E.2d 575 (1985). And we only invalidate statutes as violating the one-
subject rule when they contain “a manifestly gross and fraudulent violation.”
(Emphasis deleted.) Dix at 145. That standard recognizes not only the General
Assembly’s great latitude in enacting comprehensive legislation, but also that
there are rational and practical reasons for the combination of topics
on certain subjects. It acknowledges that the combination of
provisions on a large number of topics, as long as they are germane
to a single subject, may not be for purposes of logrolling but for the
purposes of bringing greater order and cohesion to the law or of
coordinating an improvement of the law’s substance.
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Id. Only when there is no practical, rational or legitimate reason for combining
provisions in one act will we find a one-subject-rule violation. Id.
{¶ 18} Application of the one-subject rule is more difficult when the
challenged provision is part of an appropriations bill. State ex rel. Ohio Civ. Serv.
Emps. Assn., AFSCME, Local 11, AFL-CIO v. State Emp. Relations Bd., 104 Ohio
St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, ¶ 30. Biennial appropriations bills,
which fund the state’s programs and departments, necessarily address wide-ranging
topics and bring unique challenges for judicial review. Id. Appropriations bills can
bind many topics to the common thread of appropriations, id., but they also can
attract the attachment of riders because of their size and because they are certain to
pass in some form. Simmons-Harris v. Goff, 86 Ohio St. 3d 1, 16, 711 N.E.2d 203
(1999).
{¶ 19} OCSEA challenges H.B. 153 on one-subject grounds in two
respects—as to the entire bill and, alternatively, as to the prison-privatization
provisions. We reject both challenges.
i. OCSEA’s whole-bill challenge
{¶ 20} The Tenth District held that by simply alleging that the several listed
provisions of H.B. 153 are unrelated to appropriations, OCSEA’s amended
complaint sufficiently alleged a one-subject challenge to H.B. 153 in its entirety.
2013-Ohio-4505, 2 N.E.3d 304, ¶ 23. It ordered the trial court to hold an
evidentiary hearing on remand “to determine whether the bill in question had only
one subject” and, if not, to sever any offending provisions. Id. at ¶ 24. The
enormity, if not the impossibility, of that undertaking—a section-by-section review
of thousands of pages concerning every state agency and program, followed by an
evidentiary hearing on the tedious task of budgeting—suggests the outcome here.
{¶ 21} OCSEA’s conclusory allegation that 28 provisions of H.B. 153 stray
from the subject of appropriations does not state a one-subject-rule claim regarding
H.B. 153 in its entirety. First, it is not an allegation of fact that a court must accept
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as true for purposes of Civ.R. 12(B)(6). See Mitchell, 40 Ohio St. 3d at 193, 532
N.E.2d 753 (trial court need not accept as true unsupported conclusions in a
complaint). Rather, identification of a bill’s subject is a question of law, which
depends “upon the particular language and subject matter of the proposal.” Dix, 11
Ohio St. 3d at 145, 464 N.E.2d 153. No fact-finding is necessary.
{¶ 22} Second, the appropriate remedy when a legislative act violates the
one-subject rule is generally to sever the offending portions of the act “to cure the
defect and save the portions” of the act that do relate to a single subject. Hinkle, 62
Ohio St. 3d at 149, 580 N.E.2d 767. When an act contains more than one subject,
the court may determine which subject is primary and which is an unrelated add-
on. Sheward, 86 Ohio St. 3d at 500, 715 N.E.2d 1062. As we discuss below, only
in the rare instance when we have been unable to discern a primary subject have
we resorted to invalidating an entire bill. That is not the case here.
{¶ 23} We can easily discern the primary subject of H.B. 153: balancing
state expenditures against state revenues to ensure continued operation of state
programs. Twice before, we have refused to find one-subject violations where the
provisions of an appropriations bill “relate[] to funding the operations of programs,
agencies, and matters described elsewhere in the bill.” ComTech Sys., Inc. v.
Limbach, 59 Ohio St. 3d 96, 99, 570 N.E.2d 1089 (1991), citing Dix. Like the bills
challenged in ComTech Sys. and Dix, H.B. 153 is an appropriations bill that deals
with the operations of the state government. Because we can ascertain the primary
subject of H.B. 153, OCSEA’s whole-bill challenge fails to state a claim on which
relief can be granted. Nor is there any other set of facts under which OCSEA could
recover on this challenge. O’Brien, 42 Ohio St. 2d 242, 327 N.E.2d 753, syllabus.
Thus, the trial court correctly dismissed the whole-bill portion of OCSEA’s
complaint.
{¶ 24} Our opinion in Sheward does not require a different result. In
Sheward, we were unable to “carve out a primary subject by identifying and
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assembling what we believe to be key or core provisions of” the bill at issue. Id. at
500. We noted that the bill combined “the wearing of seat belts with employment
discrimination claims, class actions arising from the sale of securities with
limitations on agency liability in actions against a hospital, recall notification with
qualified immunity for athletic coaches, actions by a roller skater with supporting
affidavits in a medical claim” all under the purported subject of “ ‘tort and other
civil actions.’ ” Id. at 499. We held the bill to be unconstitutional in its entirety
only because severability was not an option. Id. at 501. Having easily determined
the primary subject of H.B. 153, however, we need not consider that harsh result
here. Accordingly, we reverse the portion of the Tenth District’s judgment
regarding OCSEA’s whole-bill challenge and its remand for an evidentiary hearing.
{¶ 25} We turn now to OCSEA’s specific challenge to H.B. 153’s prison-
privatization provisions to determine whether we should sever them from the bill.
ii. OCSEA’s alternative challenge to the prison-privatization provisions
{¶ 26} In its amended complaint, OCSEA alleges that the prison-
privatization provisions in R.C. 9.06 and section 753.10 of H.B. 153 violate the
one-subject rule and should be severed. Because the prison-privatization
provisions relate to the overall subject of state expenditures and revenues, we reject
this claim.
{¶ 27} To reach this conclusion, we look, first, to the prison-privatization
provisions themselves, keeping in mind the primary subject of H.B. 153—
balancing state expenditures against state revenues to ensure continued operation
of state programs.
{¶ 28} H.B. 153 maintained the provision for prison operation and
management that allows private companies to contract with public entities to
privately operate and manage state-owned prison facilities. R.C. 9.06(A)(1). The
General Assembly initially authorized private contracts for prison operation and
management in 1995 Am.Sub.H.B. No. 117, the budget bill for the biennium
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beginning July 1, 1995. 146 Ohio Laws, Part I, 898. Since then, five biennial
budget bills have included amendments to R.C. 9.06. See 1997 Am.Sub.H.B. No.
215 (147 Ohio Laws, Part I, 878); 1999 Am.Sub.H.B. No. 283 (148 Ohio Laws,
Part II, 2339); 2001 Am.Sub.H.B. No. 94 (149 Ohio Laws, Part III, 4126); 2009
Am.Sub.H.B. No. 1; and H.B. 153.
{¶ 29} In order to enter into a contract with a public entity to operate and
manage a state correctional institution, a private company is subject to a host of
requirements. In particular, it must demonstrate that it will save the public entity 5
percent over the projected cost to the public entity of providing the statutorily
required services. R.C. 9.06(A)(4). Thus, a public entity’s authority to contract out
the responsibility for operating and managing corrections facilities is conditioned
upon an assurance of significant cost savings. A provision that saves the state 5
percent of the cost of operating a prison facility relates directly—not just
rationally—to budgeting for the operations of the state government. Obviously,
savings in this arena free up funds for other governmental purposes. ComTech Sys.,
59 Ohio St. 3d at 99, 570 N.E.2d 1089 (appropriations bill may contain a new object
of taxation to fund government operations described elsewhere in the bill).
{¶ 30} Beyond cost savings, the criteria and requirements applicable to
contractors ensure the continued operation of the corrections facilities. For
example, a contractor must convincingly demonstrate that it can operate the facility
with the inmate capacity required by the public entity and provide required services.
R.C. 9.06(A)(4). It must also comply with DRC rules for the operation and
management of corrections facilities. R.C. 9.06(B)(3). And contractors who have
been approved to operate a facility under R.C. 9.06 must indemnify the state for
specified claims and losses. R.C. 9.06(D). In these ways, the operation and
management provisions of H.B. 153 and R.C. 9.06 relate directly to the funding of
continued operation of state programs, and they do not violate the one-subject rule.
Dix, 11 Ohio St. 3d at 145, 464 N.E.2d 153.
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{¶ 31} As an additional means of addressing budgetary concerns in H.B.
153, the General Assembly offered for sale five of Ohio’s corrections facilities in
connection with contracts for the operation and management of those facilities.
H.B. 153, section 753.10(C)(1) and (2), (D)(1) and (2), (E)(1) and (2), (F)(1) and
(2), and (G)(1) and (2). The sale provisions encompass the cost savings already
noted and also provide for revenue generation. Proceeds from the prison sales must
“be deposited into the state treasury to the credit of the Adult and Juvenile
Correctional Facilities Bond Retirement Fund and shall be used to redeem or
defease bonds in accordance with [R.C. 5120.092],3 and any remaining moneys
after such redemption or defeasance shall be transferred in accordance with that
section to the General Revenue Fund.” H.B. 153, section 753.10(C)(8), (D)(8),
(E)(8), (F)(8), and (G)(8). Like the new tax enacted by the appropriations bill in
ComTech Sys., 59 Ohio St. 3d at 99, 570 N.E.2d 1089, the prison sales authorized
by H.B. 153 help to fund a program described elsewhere in the bill.
{¶ 32} Additionally, R.C. 9.06(J)(3) requires that any prison that is sold be
returned to the county tax list and be subject to all real property taxes and
assessments. The contractor’s gross receipts and income derived from operating
and managing the facility are subject to gross-receipts and income taxes levied by
the state and its subdivisions. Id. Thus, a prison sale creates additional tax revenue
for the state and its political subdivisions.
{¶ 33} In short, the prison-sale provisions are rationally related to budgeting
for the operation of the state government. Like the tax in ComTech Sys., the prison-
sale provisions were intended to generate revenue. The General Assembly’s
decision to combine the prison-sale provisions with the other measures in H.B. 153
was reasonable.
3
H.B. 153 also enacted R.C. 5120.092, which created the Adult and Juvenile Correctional
Facilities Bond Retirement Fund.
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{¶ 34} That conclusion is consistent with prior cases in which we have
rejected one-subject challenges to appropriations bills. See ComTech Sys.
(appropriations bill could levy new sales tax on automatic data processing and
computer services that would fund other government operations described in the
bill); Dix, 11 Ohio St. 3d at 146, 464 N.E.2d 153 (no one-subject violation where
challenged provision related to funding the operation of programs, agencies, and
matters described elsewhere in the bill). The prison-privatization provisions in
H.B. 153 provide for decreased expenditures by public entities and provide means
for revenue generation that can fund the operation of other programs and matters
described in the bill. For these reasons, we conclude that OCSEA’s complaint
failed to state a one-subject-rule claim on which relief could be granted. Nor is
there a conceivable set of facts upon which OCSEA could recover. We accordingly
reverse the Tenth District’s contrary judgment.
{¶ 35} Having resolved the state respondents’ propositions of law, we turn
to the propositions of law OCSEA raises in its cross-appeal.
B. The Constitutional Prohibition against Joinder of Property Rights
{¶ 36} OCSEA’s first proposition of law concerns an aspect of the state’s
sale of the Lake Erie facility to Corrections Corporation in 2011. OCSEA
challenges the state’s agreement in its contract to pay a $3.8 million annual
ownership fee (“fee”) to Corrections Corporation. OCSEA characterizes the fee as
a subsidy that compensates Corrections Corporation for its ownership expenses,
and it argues that the fee violates Article VIII, Section 4 of the Ohio Constitution,
which prohibits the joinder of public and private property rights. The state
respondents conversely characterize the fee as akin to a lease payment that allows
the state exclusive access to house prisoners at Lake Erie Correctional Facility.
{¶ 37} Article VIII, Section 4 of the Ohio Constitution includes two
prohibitions. It prohibits the state from giving or lending its credit to any individual
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association or corporation, and it prohibits the state from becoming a joint owner
of a private business or association:
The credit of the state shall not, in any manner, be given or
loaned to, or in aid of, any individual association or corporation
whatever; nor shall the state ever hereafter become a joint owner, or
stockholder, in any company or association, in this state, or
elsewhere, formed for any purpose whatever.
Article VIII, Section 4 neither prohibits the state from selling its property to private
persons nor prohibits the state from contracting with private entities for services.
See State ex rel. Campbell v. Cincinnati St. Ry. Co., 97 Ohio St. 283, 310, 119 N.E.
735 (1918) (city had right to contract with railway company for operation of
railroad); Cincinnati v. Dexter, 55 Ohio St. 93, 110, 44 N.E. 520 (1896) (good-faith
sale for fair value cannot be characterized as a loan of the government’s credit);
Grendell v. Ohio Environmental Protection Agency, 146 Ohio App. 3d 1, 7–8, 764
N.E2d 1067 (9th Dist.2001) (the analysis used for cities under Article VIII, Section
6 has been applied to cases challenging the state’s actions under Section 4). Both
the trial court and the court of appeals held that OCSEA failed to state a claim for
a violation of Article VIII, Section 4. We agree.
{¶ 38} Our disposition of this issue turns on technical pleading
requirements and OCSEA’s related tactical choices in the courts below. In its
amended complaint, OCSEA broadly alleged that the contract for the sale of Lake
Erie Correctional Facility made the state “a joint owner, created an ‘individual
association’ and/or mixed [the state’s] property rights with the rights of
[Corrections Corporation] to such an extent that the result violates the prohibition
in Section 4, Article VIII of the Ohio Constitution.” OCSEA’s proposition of law
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in this court, however, whittles its Article VIII, Section 4 claim down to just one
argument—that the fee amounts to a prohibited subsidy.
{¶ 39} Exhibit 1 to the amended complaint includes a copy of a document
entitled “Attachment Seven Cost Summary Form,” which OCSEA alleged is part
of the contract with Corrections Corporation. The cost summary includes in its
“Description of Cost” an “Annual Ownership Fee (AOF) per Contract
requirements, in annual dollars: $3,800,000.00.” But the bald assertion that the
fee—not described in greater detail elsewhere in the complaint—amounts to an
unconstitutional subsidy is an unsupported legal conclusion not entitled to a
presumption of truth. See Mitchell, 40 Ohio St. 3d at 193, 532 N.E.2d 753
(unsupported legal conclusions are not entitled to presumption of truth and are
insufficient to withstand motion to dismiss).
{¶ 40} The absence of information in the record regarding the fee stems
from OCSEA’s own litigation strategy. It elected not to attach to its amended
complaint a copy of the contract governing Corrections Corporation’s purchase and
subsequent operation and management of Lake Erie Correctional Facility or the
request for proposal that was incorporated into the contract. And OCSEA objected
when Corrections Corporation attempted to supplement the record in the Tenth
District with parts of those documents because they were not part of the record in
the trial court. See Morgan v. Eads, 104 Ohio St. 3d 142, 2004-Ohio-6110, 818
N.E.2d 1157, ¶ 13 (“a bedrock principle of appellate practice in Ohio is that an
appeals court is limited to the record of the proceedings at trial”). OCSEA’s
decision not to attach the contract to its amended complaint precluded both the trial
court and the Tenth District from considering the provisions of that contract,
including provisions regarding the fee. OCSEA cannot now profit from a hole it
left—and fought to maintain—in the record. Although Corrections Corporation
and OCSEA cite the materials that Corrections Corporation unsuccessfully
attempted to introduce at the court of appeals, we may not consider materials that
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were not before the trial court and that the Tenth District explicitly declined to
consider. Id. at ¶ 13; 2013-Ohio-4505, 2 N.E.3d 304, at ¶ 50.
{¶ 41} In an effort to save its claim that the fee is unconstitutional, OCSEA
argues that record evidence is always required to evaluate an as-applied
constitutional challenge. In support, OCSEA cites the same cases it relied on in the
Tenth District: Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329, 55 N.E.2d
629 (1944), paragraphs four and six of the syllabus; and Cleveland Gear Co. v.
Limbach, 35 Ohio St. 3d 229, 232, 520 N.E.2d 188 (1988). Those precedents
support the assertion that the merits of an as-applied challenge can only be disposed
of with evidence. We reject, however, OCSEA’s implicit contention that no as-
applied challenge is ever subject to dismissal for failure to state a claim upon which
relief can be granted. With respect to its claim here, the amended complaint alleges
only the bare legal conclusion that the fee constitutes a subsidy that violates Article
VIII, Section 4. OCSEA failed to allege facts necessary to flesh out the
circumstances that it claims created a constitutional violation. See Belden at
paragraph four of the syllabus (“A legislative act * * * may be valid upon its face
but unconstitutional because of its operative effect upon a particular state of facts”
[emphasis added]).
{¶ 42} In its brief, OCSEA claims that “[t]he State has promised to pay
[Corrections Corporation] more in [fee] payments ($3,800,000/yr x 21years =
$79,800,000) than [Corrections Corporation] paid for the prison ($72,770,260).”
That claim is legally and factually untenable on the record before us. It is factually
untenable because the document that OCSEA claims sets the fee as $3.8 million a
year limits the payment of the fee to the time from August 31, 2011, to June 30,
2013. And OCSEA’s $79,800,000 figure is legally untenable because the
legislature is bound by a constitutional provision commanding that “no
appropriation shall be made for a longer period than two years.” Article II, Section
22, Ohio Constitution.
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{¶ 43} The amended complaint contains no allegations of fact that, even if
presumed to be true, support the conclusion that the fee is a subsidy or that payment
of the fee constitutes an as-applied violation of Article VIII, Section 4 of the Ohio
Constitution. Even assuming the truth of the details of the fee alleged by OCSEA
in this court, payment of the fee does not constitute a gift or loan of the state’s
credit, nor does it transform the state’s interest into a co-ownership with Corrections
Corporation. There is no set of facts under which OCSEA can prevail. O’Brien,
42 Ohio St. 2d 242, 327 N.E.2d 753, syllabus. Consequently, OCSEA failed to state
a claim on which relief can be granted, and we affirm the Tenth District’s judgment
on this issue.
{¶ 44} We now turn to the final issue before us: did the court of common
pleas lack jurisdiction to consider OCSEA’s claim under R.C. 4117.01(C)?
C. Common Pleas Jurisdiction over R.C. 4117.01(C) Claim
{¶ 45} OCSEA’s second proposition of law challenges the Tenth District’s
holding that SERB has exclusive jurisdiction over OCSEA’s alternative claim,
premised on R.C. 4117.01(C). In its amended complaint, OCSEA alleges that
employees of MTC and Corrections Corporation working at North Central
Correctional Complex and Lake Erie Correctional Facility are “public employees”
as defined in R.C. 4117.01(C). It requests a declaration of public-employee status,
however, only as to employees at North Central Correctional Complex. OCSEA
argues that the trial court has jurisdiction to determine its R.C. 4117.01(C) claim
because R.C. 9.06(K) vests the Franklin County Court of Common Pleas with
exclusive jurisdiction over all challenges to R.C. 9.06 and section 753.10 of H.B.
153. OCSEA further argues that Franklin Cty. Law Enforcement Assn. v. Fraternal
Order of Police, Capital City Lodge No. 9, 59 Ohio St. 3d 167, 572 N.E.2d 87
(1991), relied on by the trial court and the court of appeals, does not preclude the
court’s exercise of jurisdiction over this claim.
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{¶ 46} In its brief, OCSEA broadly argues that employees who work in
prisons operated by private contractors pursuant to contract with the state are public
employees. But in determining the jurisdictional question presented, we first
examine the specific declaratory-judgment claim that OCSEA pled in its amended
complaint. In the event that its constitutional challenges do not succeed, OCSEA
requested a declaration that “individuals currently working in North Central
Correctional Complex are public employees as defined in R.C. 4117.01(C).” The
declaratory-judgment claim starts from the premise that this court finds R.C. 9.06
and section 753.10 of H.B. 153 constitutional and that the contracts with MTC and
Corrections Corporation will remain in effect. OCSEA argues that individuals who
work at the privatized prisons retain public-employee status because the state
maintains extensive and ultimate jurisdiction and control over all major or
important aspects of the operation and management of the facilities.
{¶ 47} The alleged impact on and harm to the plaintiffs from the
privatization of the North Central Correctional Complex and the Lake Erie
Correctional Facility inform the nature of OCSEA’s declaratory-judgment claim.
The amended complaint alleged that the union lost approximately 273 members,
along with the dues and fair-share fee payments that they would have been required
to contribute, for an annual loss of at least $145,000. It also alleged that the
individual employee-plaintiffs who lost their jobs were wrongfully excluded from
their employment and incurred losses as a result. Although most of the individual
employee-plaintiffs transferred to new positions in other state facilities, those
positions were often located at longer distances from their homes, and they lost
institutional seniority under the collective bargaining agreement (“CBA”). The loss
of seniority affected employees’ jobs, days off, hours, and shifts. Several
individuals alleged that they transferred to other state institutions rather than
seeking or accepting employment with MTC or Corrections Corporation so that
they could continue participation in the Ohio Public Employees Retirement System
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without also having to contribute to social security. Of all the employees named in
the complaint, only one ended up working for MTC. As a result, she was no longer
classified as a public employee and lost her accumulated sick leave, her right to
continued participation in the State Teachers Retirement System, and the job
security provided by the CBA.
{¶ 48} OCSEA’s amended complaint first requested a declaration that
“individuals currently working in North Central Correctional Complex are public
employees as defined in R.C. 4117.01(C),” but a later paragraph in the same
pleading requested a seemingly broader declaration that “all individuals working in
the North [Central] Correctional Complex after R.C. 9.06 and/or [section 753.10 of
H.B. 153] were implemented are public employees as defined in R.C. 4117.01(C)
and [that] they are entitled to all the benefits and emoluments applicable to public
employees by CBA and by law.” (Emphasis added.) It is unclear from the amended
complaint whether OCSEA seeks a separate declaration that employees of North
Central Correctional Complex are entitled to specific rights and benefits under the
CBA or whether it continues to seek only a declaration that those employees are
“public employees” entitled to whatever rights flow from that classification. In this
court, OCSEA explains that it seeks the latter: “Once Plaintiffs are determined by
a Court to be public employees as defined in R.C. 4117.01(C), the CBA between
OCSEA and the State contains their rights and the employer’s responsibilities and
applies just as it had before the two prisons were privatized.” We therefore consider
only whether the trial court has jurisdiction to determine via declaratory judgment
whether employees working in Ohio prisons operated by private contractors
pursuant to contract with the state are public employees under R.C. 4117.01(C). If
not, the trial court correctly dismissed this portion of the complaint under Civ.R.
12(B)(1).
{¶ 49} We first reject OCSEA’s reliance on R.C. 9.06(K) to establish the
trial court’s jurisdiction. R.C. 9.06(K) states that any claim alleging that R.C. 9.06
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or section 753.10 of H.B. 153 violates a provision of the Ohio Constitution or the
Revised Code or that any action taken by the governor, DAS or DRC pursuant to
those sections violates the Ohio Constitution or the Revised Code must be brought
in the Franklin County Court of Common Pleas. OCSEA’s declaratory-judgment
claim does not allege that R.C. 9.06 or section 753.10 of H.B. 153, or any action
taken pursuant to either of those sections, violated the Ohio Constitution or the
Revised Code. To the contrary, the declaratory-judgment claim is an alternative to
OCSEA’s constitutional claims and proceeds from the premise that the contracts
executed pursuant to R.C. 9.06 and section 753.10 of H.B. 153 remain in effect.
OCSEA’s declaratory-judgment claim rests on the assertion that DAS and DRC
violated R.C. 4117.01(C) by failing to acknowledge employees of MTC and
Corrections Corporation as public employees. The challenge to the employees’
status as public or private employees does not challenge action taken under R.C.
9.06 or section 753.10 of H.B. 153, and it does not fall within the scope of R.C.
9.06(K).
{¶ 50} OCSEA’s remaining argument in support of the trial court’s
jurisdiction challenges the Tenth District’s reliance on Franklin Cty. Law
Enforcement Assn., 59 Ohio St. 3d at 169, 572 N.E.2d 87. OCSEA argues that
courts, including the Tenth District here, have read Franklin Cty. Law Enforcement
Assn. too broadly to afford SERB greater exclusive jurisdiction than the General
Assembly has prescribed by statute.
{¶ 51} SERB is a state agency created by R.C. Chapter 4117. R.C.
4117.02(A); State ex rel. Brecksville Edn. Assn., OEA/NEA v. State Emp. Relations
Bd., 74 Ohio St. 3d 665, 666, 660 N.E.2d 1199 (1996). As a state agency and a
creature of statute, SERB is limited to the powers and jurisdiction conferred on it
by statute. See Penn Cent. Transp. Co. v. Pub. Util. Comm., 35 Ohio St. 2d 97, 298
N.E.2d 587 (1973), paragraph one of the syllabus; Morgan Cty. Budget Comm. v.
Bd. of Tax Appeals, 175 Ohio St. 225, 193 N.E.2d 145 (1963), paragraph three of
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the syllabus. OCSEA and its amici argue that R.C. Chapter 4117 confers
jurisdiction upon SERB only over certain aspects of public employer-employee
relations. The state respondents counter that SERB has exclusive jurisdiction over
all matters within R.C. Chapter 4117, citing State ex rel. Cleveland v. Sutula, 127
Ohio St. 3d 131, 2010-Ohio-5039, 937 N.E.2d 88, ¶ 20, and Assn. of Cleveland Fire
Fighters, Local 93 of the Internatl. Assn. of Fire Fighters v. Cleveland, 156 Ohio
App.3d 368, 2004-Ohio-994, 806 N.E.2d 170, ¶ 12 (8th Dist.). We agree with
OCSEA.
{¶ 52} When the General Assembly intends to vest an administrative
agency with exclusive jurisdiction, it does so by appropriate statutory language.
State ex rel. Banc One Corp. v. Walker, 86 Ohio St. 3d 169, 171-172, 712 N.E.2d
742 (1999). Nowhere in R.C. Chapter 4117 does the General Assembly assign
SERB exclusive jurisdiction over all issues touching on that chapter’s provisions.
Instead, the General Assembly targeted specific issues for SERB to address in the
first instance.
{¶ 53} Consistent with the general rule that agencies created by statute have
such jurisdiction as the General Assembly confers, SERB “has exclusive
jurisdiction to decide matters committed to it pursuant to R.C. Chapter 4117.”
Franklin Cty. Law Enforcement Assn., 59 Ohio St. 3d 167, 572 N.E.2d 87, at
paragraph one of the syllabus. As to matters involving claims that “arise from or
depend on the collective bargaining rights created by R.C. Chapter 4117,” that
chapter’s remedies are exclusive. Id. at paragraph two of the syllabus. In Franklin
Cty. Law Enforcement Assn., we concluded that SERB had exclusive jurisdiction
over claims for injunctive relief regarding a tentative, partial settlement agreement
between a public entity and a union. The claims there stemmed from the union’s
duty to fairly represent all members of the bargaining unit, the employees’ right to
vote on union representation, and the statutory requirement that a union provide for
the rights of individual members to participate in the organization’s affairs. Id. at
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171. Thus, the claims stemmed directly from rights and remedies created by R.C.
Chapter 4117. Id.
{¶ 54} The principles announced in Franklin Cty. Law Enforcement Assn.
are not so broad as to place all claims that touch on R.C. Chapter 4117 within
SERB’s exclusive jurisdiction. Indeed, we expressly acknowledged in that case
that a plaintiff may raise in the common pleas courts rights that exist independently
of R.C. Chapter 4117, “even though they may touch on the collective bargaining
relationships.” Id. at 172. See also E. Cleveland v. E. Cleveland Firefighters Local
500, I.A.F.F., 70 Ohio St. 3d 125, 128-129, 637 N.E.2d 878 (1994) (common pleas
court had jurisdiction to review arbitration rulings that flowed from collective-
bargaining agreements).
{¶ 55} The state respondents cite a more recent case—Sutula, 127 Ohio
St.3d 131, 2010-Ohio-5039, 937 N.E.2d 88—for the proposition that SERB has
broad exclusive jurisdiction over all matters within R.C. Chapter 4117. In Sutula,
a union certified by SERB as the exclusive representative of a bargaining unit
composed of a group of city employees filed a complaint for injunctive and
declaratory relief regarding the city of Cleveland’s duty to perform in accordance
with its prestrike settlement offer, following two years of failed negotiations
pursuant to R.C. 4117.14. In response, the city filed a complaint for a writ of
prohibition in the Eighth District Court of Appeals. The controversy reached this
court on a direct appeal from the Eighth District’s dismissal of the prohibition
action.
{¶ 56} The central question in Sutula was whether the trial court patently
and unambiguously lacked jurisdiction over the union’s action for injunctive and
declaratory relief. Id. at ¶ 13-14. We reiterated that SERB “ ‘has exclusive
jurisdiction to decide matters committed to it pursuant to R.C. Chapter 4117’ ” and
that the dispositive test for determining whether SERB has exclusive, original
jurisdiction “is whether the claims ‘arise from or depend on the collective
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January Term, 2016
bargaining rights created by R.C. Chapter 4117.’ ” Id. at ¶ 16, 20, quoting Franklin
Cty. Law Enforcement Assn., 59 Ohio St. 3d 167, 572 N.E.2d 87, at paragraphs one
and two of the syllabus. We concluded that the trial court lacked jurisdiction
because the union claimed that the city failed to abide by an agreement reached
through collective-bargaining negotiations under R.C. Chapter 4117. Sutula at
¶ 17, 25. That holding is consistent with Franklin Cty. Law Enforcement Assn.
{¶ 57} In support of their position that SERB has exclusive jurisdiction over
R.C. Chapter 4117 matters, the state respondents point to a single sentence in
Sutula, which states that SERB’s jurisdiction goes beyond unfair labor practices
and includes “ ‘matters within R.C. Chapter 4117 in its entirety.’ ” Id. at ¶ 20,
quoting Assn. of Cleveland Fire Fighters, 156 Ohio App. 3d 368, 2004-Ohio-994,
806 N.E.2d 170, at ¶ 12. In Assn. of Cleveland Fire Fighters, the Eighth District
extrapolated that view from Franklin Cty. Law Enforcement Assn., at paragraph
one of the syllabus, which states that SERB “has exclusive jurisdiction to decide
matters committed to it pursuant to R.C. Chapter 4117.” (Emphasis added.) The
claim in Assn. of Cleveland Fire Fighters arose directly out of rights created by
R.C. Chapter 4117; it involved an allegation that the city had unfairly eliminated
assistant chiefs from the bargaining unit under R.C. 4117.06. Assn. of Cleveland
Fire Fighters at ¶ 14 (“the improper removal of employees from a bargaining unit
is enforceable against the employer as an unfair labor practice under R.C.
4117.11(A)(8) and 4117.11(B)(6)”). Likewise, the claims in Sutula arose directly
out of rights created by R.C. Chapter 4117. As we stated twice in Sutula, the
dispositive test remains whether the claims arise from or depend on collective-
bargaining rights created by R.C. Chapter 4117. Sutula at ¶ 20, quoting Franklin
Cty. Law Enforcement Assn. at paragraph two of the syllabus; Sutula at ¶ 22. Sutula
does not expand the scope of SERB’s jurisdiction beyond the matters conferred on
it by R.C. Chapter 4117.
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{¶ 58} The dispositive question here, therefore, is whether OCSEA’s claim
that individuals employed at North Central Correctional Complex are “public
employees” under R.C. 4117.01(C) arises from or depends on collective-bargaining
rights created by R.C. Chapter 4117. We conclude that it does.
{¶ 59} This court considered an issue regarding status as a public employer
under R.C. 4117.01 in Ohio Historical Soc. v. State Emp. Relations Bd., 48 Ohio
St.3d 45, 549 N.E.2d 157 (1990) (“Ohio Historical Soc. I”), and Ohio Historical
Soc. v. State Emp. Relations Bd., 66 Ohio St. 3d 466, 469, 613 N.E.2d 591 (1993)
(“Ohio Historical Soc. II”). The Ohio Historical Soc. cases involved (1) an R.C.
119.12 appeal from SERB’s determination that the historical society was not a
public employer in proceedings initiated by a union for a representation election
and (2) an appeal in a declaratory-judgment action that the historical society filed
in the Franklin County Court of Common Pleas.
{¶ 60} In Ohio Historical Soc. I, we affirmed the Tenth District’s
determination that the trial court lacked jurisdiction over the R.C. 119.12 appeal
because it was premature, and we noted that SERB did not appeal the Tenth
District’s holding that the trial court had jurisdiction over the declaratory-judgment
action. Id. at 47 and 48. We stated in dicta that the historical society was “not
precluded * * * from raising the issue as to whether it is a public employer in the
declaratory judgment action.” Id. at 48. But in Ohio Historical Soc. II, we directly
confronted the question of the trial court’s jurisdiction over the historical society’s
declaratory-judgment claim. The lead opinion held that the trial court lacked
jurisdiction because the only substantive allegation—that the historical society was
not a public employer—depended “entirely on the provisions of R.C. Chapter 4117,
over which SERB has exclusive original jurisdiction.” Ohio Historical Soc. II at
469. The portion of Ohio Historical Soc. II addressing the trial court’s lack of
jurisdiction did not garner the votes of a majority of this court, but it is consistent
with Franklin Cty. Law Enforcement Assn.
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January Term, 2016
{¶ 61} The plaintiffs in Franklin Cty. Law Enforcement Assn. argued that a
tentative, partial settlement agreement was invalid under R.C. 325.17 because the
agreement lacked the sheriff’s approval and was, instead, approved by the county
commissioners. 59 Ohio St. 3d at 170, 572 N.E.2d 87. They further claimed that
because R.C. 325.17 is a “ ‘nonbargaining’ statute,” they could pursue the
enforcement of their rights without resorting to the remedies under R.C. Chapter
4117. Id. This court rejected the plaintiffs’ attempt to avoid SERB’s jurisdiction,
stating that “R.C. Chapter 4117 controls in any event on the issue of who is the
public employer.” Id. “Ultimately, the question of who is the ‘public employer’
must be determined under R.C. Chapter 4117.” Id.
{¶ 62} The determination whether employees working at North Central
Corrections Complex are public employees, as defined in R.C. 4117.01(C), and are
therefore entitled to the benefits and protections afforded to bargaining-unit
members under the CBA depends “entirely on the provisions of R.C. Chapter 4117,
over which SERB has exclusive original jurisdiction.” Ohio Historical Soc. II at
469. Accordingly, the Tenth District properly affirmed the trial court’s
determination that it lacked jurisdiction over OCSEA’s declaratory-judgment
claim.
{¶ 63} To be clear, we do not suggest that SERB has exclusive, original
jurisdiction over every claim touching upon R.C. Chapter 4117. Nor do we
undertake to define the circumstances in which a common pleas court might have
jurisdiction over claims touching upon R.C. Chapter 4117. Those questions are
beyond the scope of OCSEA’s claim, as pled in its amended complaint, and they
simply are not before us at this time. We merely reiterate that “if a party asserts
claims that arise from or depend on the collective bargaining rights created by R.C.
Chapter 4117, the remedies provided in that chapter are exclusive.” Franklin Cty.
Law Enforcement Assn. at paragraph two of the syllabus. Applying that rule here,
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we conclude that jurisdiction over OCSEA’s claim regarding R.C. 4117.01(C) lies
exclusively with SERB.
Conclusion
{¶ 64} H.B. 153 does not violate the one-subject rule in its entirety. Nor do
the prison-privatization provisions of that bill violate the one-subject rule.
Accordingly, we reverse the Tenth District’s judgment on those claims. Next,
because the amended complaint’s thinly pleaded allegations do not include
sufficient facts to state a claim that the fee under the Corrections Corporation
contract violates the constitutional ban on the joinder of public and private property
rights in Article VIII, Section 4 of the Ohio Constitution, we affirm the Tenth
District’s judgment on that claim. Finally, we affirm the Tenth District’s judgment
that OCSEA’s claim that employees working at North Central Corrections
Complex are public employees under R.C. 4117.01(C) lies within SERB’s
exclusive jurisdiction. The cause is remanded to the trial court.
Judgment affirmed in part
and reversed in part,
and cause remanded.
O’CONNOR, C.J., and O’DONNELL, LANZINGER, and KENNEDY, JJ., concur.
O’NEILL and PFEIFER, JJ., dissent.
__________________
O’NEILL, J., dissenting.
{¶ 65} I respectfully disagree with the conclusion reached by the majority
regarding the jurisdiction of the common pleas court to decide whether the
employees of the prison are public employees and therefore entitled to all of the
rights and privileges afforded to public employees. The Franklin County Common
Pleas Court has jurisdiction to decide whether employees of private companies that
operate prisons pursuant to contract with the state are public employees as defined
under R.C. 4117.01(C).
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January Term, 2016
{¶ 66} The majority’s opinion gives the State Employment Relations Board
(“SERB”) greater exclusive jurisdiction than prescribed by statute. R.C. Chapter
4117 confers jurisdiction on SERB only over certain aspects of public employer-
employee interactions. As the majority correctly noted, citing State ex rel. Banc
One Corp. v. Walker, 86 Ohio St. 3d 169, 171-172, 712 N.E.2d 742 (1999), when
the General Assembly intends to vest exclusive jurisdiction in an agency, it
provides it by appropriate statutory language. However, nowhere in R.C. Chapter
4117 does the General Assembly assign to SERB exclusive jurisdiction over all
issues touching on the chapter’s provisions. This is evident from the language the
General Assembly chose in describing SERB’s jurisdiction over various issues.
Instead of a broad grant of jurisdiction, the General Assembly targeted specific
issues for SERB to address in the first instance. By way of example only, SERB
has initial jurisdiction to certify the exclusive representative of a bargaining unit’s
members, R.C. 4117.05(A)(1); SERB alone defines the unit appropriate for
collective-bargaining purposes, R.C. 4117.06(A); SERB has exclusive jurisdiction
over unfair labor practices (violations of R.C. 4117.11), R.C. 4117.12; and SERB
first determines whether an employer-challenged strike is authorized under R.C.
Chapter 4117, R.C. 4117.23.
{¶ 67} While the majority relies on this court’s decision in Franklin Cty.
Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9, 59
Ohio St. 3d 167, 572 N.E.2d 87 (1991), for the proposition that who is a “public
employer” is a question that must be determined under R.C. Chapter 4117, we
acknowledged that a plaintiff may raise rights that exist independently of R.C.
Chapter 4117, like constitutional rights, in common pleas courts. This is true “even
though they may touch on the collective bargaining relationships between
employer, employee, and union.” Id. at 172. In the second paragraph of the
syllabus, this court held, “If a party asserts rights that are independent of R.C.
Chapter 4117, the party’s complaint may properly be heard in common pleas court.
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However, if a party asserts claims that arise from or depend on the collective
bargaining rights created by R.C. Chapter 4117, the remedies provided in that
chapter are exclusive.” Declaratory judgments regarding a party’s status under the
definitions in R.C. 4117.01 do not necessarily rely on the rights and remedies
created by other subsections of R.C. Chapter 4117.
{¶ 68} Under the circumstances presented in this case, a declaratory-
judgment action is an appropriate vehicle to determine whether the employees of
Management & Training Corporation and Corrections Corporation of America are
public employees as defined in R.C. 4117.01(C). Indeed, when the answer to a
simple and direct question will resolve a controversy, a declaratory judgment may
well be preferable to a full administrative proceeding. This question could not be
more direct: are the employees of Management & Training and Corrections
Corporation public employees? Yes or no?
{¶ 69} And the use of a declaratory-judgment action in cases like this is
consistent with our authority and precedent. We have held that a declaratory
judgment is not appropriate where another equally serviceable remedy is available.
Swander Ditch Landowners’ Assn. v. Joint Bd. of Huron & Seneca Cty. Commrs.,
51 Ohio St. 3d 131, 135, 554 N.E.2d 1324 (1990). But an administrative remedy is
not as serviceable as a declaratory judgment where administrative practice would
involve substantial expense that the declaratory-judgment action would not. Burt
Realty Corp. v. Columbus, 21 Ohio St. 2d 265, 257 N.E.2d 355 (1970), paragraph
one of the syllabus. This is such a case.
{¶ 70} Here, a statewide union, Ohio Civil Service Employees Association
(“OCSEA”), is already in place. OCSEA claims that after their status is
determined, Management & Training and Corrections Corporation’s employees
either will or will not be entitled to representation by OCSEA and the benefits of
the applicable collective-bargaining agreement. On these bases, OCSEA contends
that a declaration that the prison employees either are or are not public employees
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January Term, 2016
will resolve the claim in its entirety. Under these circumstances, the Franklin
County Court of Common Pleas has jurisdiction to hear OCSEA’s declaratory-
judgment action to determine whether the individuals employed by Management &
Training and Corrections Corporation are public employees as defined by R.C.
4117.01(C).
{¶ 71} Accordingly, I must dissent.
PFEIFER, J., concurs in the foregoing opinion.
__________________
James E. Melle, for appellees and cross-appellants, Ohio Civil Service
Employees Association, David Combs, Clair Crawford, Lori Leach Douce, Margo
Hall, Sheila Herron, Daniel Karcher, Rebecca Sayers, Angela Schuster, Troy
Tackett, Kathy Tinker, Lisa Zimmerman, and ProgressOhio.org.
Taft Stettinius & Hollister, L.L.P., Charles R. Saxbe, James D. Abrams, and
Celia M. Kilgard, for appellees Corrections Corporation of America and CCA
Western Properties, Inc.
Michael DeWine, Ohio Attorney General, and Eric E. Murphy, State
Solicitor, for appellants and cross-appellees state of Ohio, Governor John R.
Kasich, Attorney General Michael DeWine, Secretary of State Jon Husted, Auditor
of State David Yost, Ohio Department of Rehabilitation and Correction and its
director, Gary C. Mohr, Ohio Department of Administrative Services and its
director, Robert Blair, Treasurer Josh Mandel, and the Office of Budget and
Management and its director, Timothy S. Keen.
Sutter O’Connell, Adam Martin, and Kevin W. Kita, for appellant and
cross-appellee Management & Training Corporation.
American Federation of State, County and Municipal Employees, AFL-
CIO, and Nicholas A. Serrano, urging affirmance in part and reversal in part for
amicus curiae AFSCME International.
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Buckley King, L.P.A., Robert J. Walter, Thomas I. Blackburn, and Diem N.
Kaelber, urging affirmance in part and reversal in part for amici curiae Ohio
Association of Public School Employees/AFSCME Local 4, AFL-CIO, Fraternal
Order of Police of Ohio, Inc., and American Federation of State, County, and
Municipal Employees Ohio Council 8.
__________________
30