Ohio Court Rules City Charter Amendment Negates Obligation To Bargain

By a 2-1 vote, a panel of the Ohio Court of Appeals has held that if voters enact a change in working conditions through a Charter Amendment, it supersedes the employer’s obligation to bargain.

The case involves the City of Cincinnati, Ohio and the Queen City Lodge No. 69 of the Fraternal Order of Police (FOP), which represents assistant chiefs. Almost a year after the collective bargaining agreement between the City and the FOP went into effect, the Cincinnati City Council passed an emergency ordinance placing on the upcoming ballot an amendment to the City’s Charter that proposed to reclassify assistant police chiefs from the classified service to the unclassified service. The measure, which was approved by the voters, allowed the City to appoint assistant police chiefs from outside the Department.

The FOP filed an unfair labor practice charge against the City with the State Employment Relations Board. The ULP charge alleged that the City had failed to bargain in good faith with the Union when it unilaterally modified the established promotional process for assistant police chiefs by applying the Amendment and subsequently refusing to fill a vacant assistant police chief position following the well-established “rule of one” in place in the Department. The case ultimately wound up in the Ohio Court of Appeals.

The Court ruled that the duty to bargain does not exist with respect to “legislative action taken by a higher-level legislative body after the agreement became effective.” In the Court’s eyes, the voters were a “higher-level legislative body,” negating the City’s obligation to bargain over the Charter change.

In the Court’s view, “if the citizens of Cincinnati, in passing a Charter Amendment, are not a higher-level legislative authority, then any Charter Amendment could never affect future collective bargaining. On its face, that is impossible – both the City and any union could simply ignore the Charter, which is the highest authority in City governance. Likewise, we assume, the citizens of Ohio could enact a constitutional amendment, but it could be ignored if it conflicted with the collective bargaining agreement. To so state the issue shows its absurdity. The law must be obeyed. And we perceive no difference in whether the amendment was put on the ballot by council, or whether an initiative put it on the ballot by gathering signatures. Either way, the voters have the last word.”

A dissenting judge cautioned that the Court had “set a dangerous precedent by allowing the City to circumvent the rights of the union and to frustrate the purpose of Ohio’s collective bargaining law by allowing a public employer to agree to certain terms and conditions of employment with the union and then shortly thereafter pass legislation that conflicts with those terms. Courts should not allow public employers to disregard the terms of their collective bargaining agreements whenever they find it convenient to do so.”

State Employment Relations Board v. Queen City Lodge No. 69, Fraternal Order of Police, 2007 WL 3119716 (OhioApp. 2007).

NOTE: The issue of the status of assistant police chiefs in the Cincinnati Police Department has been the subject of a great deal of public debate in Cincinnati, as well as a fair amount of litigation. The core decision of the Court – that a Charter Amendment eliminates the obligation to bargain – conflicts with the law in virtually every other state with a statewide collective bargaining statute. The usual rule is that even Charter Amendments are subject to a state statute which commands an employer to collectively bargain over wages, hours, and terms and conditions of employment.

This article appears in the December 2007 issue