As Passed by the House

126th General Assembly Regular Session 2005-2006

Sub. S. B. No. 19

Senators Schuler, Wachtmann, Mumper, Clancy, Hagan, Goodman, Austria, Roberts, Padgett, Niehaus 

Representatives Willamowski, Blessing, Calvert, Flowers, Schneider, Seitz, Setzer, Webster 

---

A BILL

To amend sections 2317.02 and 4117.14 of the Revised

1

Code to make the testimonial privilege against

2

disclosure of certain communications applicable to

3

critical incident stress management (CISM) team

4

members, to create a testimonial privilege between

5

employee-assistance program personnel and program

6

clients, and to reenact the provision of law

7

designating the Controlling Board as the

8

legislative body authorized to reject

9

recommendations of a fact-finding panel.

10

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2317.02 and 4117.14 of the Revised	11
Code be amended to read as follows:	12

Sec. 2317.02.  The following persons shall not testify in	13
certain respects:	14

(A) An attorney, concerning a communication made to the	15
attorney by a client in that relation or the attorney's advice to	16
a client, except that the attorney may testify by express consent	17
of the client or, if the client is deceased, by the express	18
consent of the surviving spouse or the executor or administrator	19
of the estate of the deceased client and except that, if the	20
client voluntarily testifies or is deemed by section 2151.421 of	21
the Revised Code to have waived any testimonial privilege under	22
this division, the attorney may be compelled to testify on the	23
same subject;	24

(B)(1) A physician or a dentist concerning a communication	25
made to the physician or dentist by a patient in that relation or	26
the physician's or dentist's advice to a patient, except as	27
otherwise provided in this division, division (B)(2), and division	28
(B)(3) of this section, and except that, if the patient is deemed	29
by section 2151.421 of the Revised Code to have waived any	30
testimonial privilege under this division, the physician may be	31
compelled to testify on the same subject.	32

The testimonial privilege established under this division	33
does not apply, and a physician or dentist may testify or may be	34
compelled to testify, in any of the following circumstances:	35

(a) In any civil action, in accordance with the discovery	36
provisions of the Rules of Civil Procedure in connection with a	37
civil action, or in connection with a claim under Chapter 4123. of	38
the Revised Code, under any of the following circumstances:	39

(i) If the patient or the guardian or other legal	40
representative of the patient gives express consent;	41

(ii) If the patient is deceased, the spouse of the patient or	42
the executor or administrator of the patient's estate gives	43
express consent;	44

(iii) If a medical claim, dental claim, chiropractic claim,	45
or optometric claim, as defined in section 2305.113 of the Revised	46
Code, an action for wrongful death, any other type of civil	47
action, or a claim under Chapter 4123. of the Revised Code is	48
filed by the patient, the personal representative of the estate of	49
the patient if deceased, or the patient's guardian or other legal	50
representative.	51

(b) In any civil action concerning court-ordered treatment or	52
services received by a patient, if the court-ordered treatment or	53
services were ordered as part of a case plan journalized under	54
section 2151.412 of the Revised Code or the court-ordered	55
treatment or services are necessary or relevant to dependency,	56
neglect, or abuse or temporary or permanent custody proceedings	57
under Chapter 2151. of the Revised Code.	58

(c) In any criminal action concerning any test or the results	59
of any test that determines the presence or concentration of	60
alcohol, a drug of abuse, or alcohol and a drug of abuse in the	61
patient's blood, breath, urine, or other bodily substance at any	62
time relevant to the criminal offense in question.	63

(d) In any criminal action against a physician or dentist. In	64
such an action, the testimonial privilege established under this	65
division does not prohibit the admission into evidence, in	66
accordance with the Rules of Evidence, of a patient's medical or	67
dental records or other communications between a patient and the	68
physician or dentist that are related to the action and obtained	69
by subpoena, search warrant, or other lawful means. A court that	70
permits or compels a physician or dentist to testify in such an	71
action or permits the introduction into evidence of patient	72
records or other communications in such an action shall require	73
that appropriate measures be taken to ensure that the	74
confidentiality of any patient named or otherwise identified in	75
the records is maintained. Measures to ensure confidentiality that	76
may be taken by the court include sealing its records or deleting	77
specific information from its records.	78

(e) In any will contest action under sections 2107.71 to	79
2107.77 of the Revised Code if all of the following apply:	80

(i) The patient is deceased.

81

(ii) A party to the will contest action requests the	82
testimony, demonstrates to the court that that party would be an	83
heir of the patient if the patient died without a will, is a	84
beneficiary under the will that is the subject of the will contest	85
action, or is a beneficiary under another testamentary document	86
allegedly executed by the patient, and demonstrates to the court	87
that the testimony is necessary to establish the party's rights as	88
described in this division.	89

(2)(a) If any law enforcement officer submits a written	90
statement to a health care provider that states that an official	91
criminal investigation has begun regarding a specified person or	92
that a criminal action or proceeding has been commenced against a	93
specified person, that requests the provider to supply to the	94
officer copies of any records the provider possesses that pertain	95
to any test or the results of any test administered to the	96
specified person to determine the presence or concentration of	97
alcohol, a drug of abuse, or alcohol and a drug of abuse in the	98
person's blood, breath, or urine at any time relevant to the	99
criminal offense in question, and that conforms to section	100
2317.022 of the Revised Code, the provider, except to the extent	101
specifically prohibited by any law of this state or of the United	102
States, shall supply to the officer a copy of any of the requested	103
records the provider possesses. If the health care provider does	104
not possess any of the requested records, the provider shall give	105
the officer a written statement that indicates that the provider	106
does not possess any of the requested records.	107

(b) If a health care provider possesses any records of the	108
type described in division (B)(2)(a) of this section regarding the	109
person in question at any time relevant to the criminal offense in	110
question, in lieu of personally testifying as to the results of	111
the test in question, the custodian of the records may submit a	112
certified copy of the records, and, upon its submission, the	113
certified copy is qualified as authentic evidence and may be	114
admitted as evidence in accordance with the Rules of Evidence.	115
Division (A) of section 2317.422 of the Revised Code does not	116
apply to any certified copy of records submitted in accordance	117
with this division. Nothing in this division shall be construed to	118
limit the right of any party to call as a witness the person who	119
administered the test to which the records pertain, the person	120
under whose supervision the test was administered, the custodian	121
of the records, the person who made the records, or the person	122
under whose supervision the records were made.	123

(3)(a) If the testimonial privilege described in division	124
(B)(1) of this section does not apply as provided in division	125
(B)(1)(a)(iii) of this section, a physician or dentist may be	126
compelled to testify or to submit to discovery under the Rules of	127
Civil Procedure only as to a communication made to the physician	128
or dentist by the patient in question in that relation, or the	129
physician's or dentist's advice to the patient in question, that	130
related causally or historically to physical or mental injuries	131
that are relevant to issues in the medical claim, dental claim,	132
chiropractic claim, or optometric claim, action for wrongful	133
death, other civil action, or claim under Chapter 4123. of the	134
Revised Code.	135

(b) If the testimonial privilege described in division (B)(1)	136
of this section does not apply to a physician or dentist as	137
provided in division (B)(1)(c) of this section, the physician or	138
dentist, in lieu of personally testifying as to the results of the	139
test in question, may submit a certified copy of those results,	140
and, upon its submission, the certified copy is qualified as	141
authentic evidence and may be admitted as evidence in accordance	142
with the Rules of Evidence. Division (A) of section 2317.422 of	143
the Revised Code does not apply to any certified copy of results	144
submitted in accordance with this division. Nothing in this	145
division shall be construed to limit the right of any party to	146
call as a witness the person who administered the test in	147
question, the person under whose supervision the test was	148
administered, the custodian of the results of the test, the person	149
who compiled the results, or the person under whose supervision	150
the results were compiled.	151

(c) If the testimonial privilege described in division (B)(1)	152
of this section does not apply as provided in division (B)(1)(e)	153
of this section, a physician or dentist may be compelled to	154
testify or to submit to discovery in the will contest action under	155
sections 2107.71 to 2107.77 of the Revised Code only as to the	156
patient in question on issues relevant to the competency of the	157
patient at the time of the execution of the will. Testimony or	158
discovery conducted pursuant to this division shall be conducted	159
in accordance with the Rules of Civil Procedure.	160

(4) The testimonial privilege described in division (B)(1) of	161
this section is not waived when a communication is made by a	162
physician to a pharmacist or when there is communication between a	163
patient and a pharmacist in furtherance of the physician-patient	164
relation.	165

(5)(a) As used in divisions (B)(1) to (4) of this section,	166
"communication" means acquiring, recording, or transmitting any	167
information, in any manner, concerning any facts, opinions, or	168
statements necessary to enable a physician or dentist to diagnose,	169
treat, prescribe, or act for a patient. A "communication" may	170
include, but is not limited to, any medical or dental, office, or	171
hospital communication such as a record, chart, letter,	172
memorandum, laboratory test and results, x-ray, photograph,	173
financial statement, diagnosis, or prognosis.	174

(b) As used in division (B)(2) of this section, "health care	175
provider" means a hospital, ambulatory care facility, long-term	176
care facility, pharmacy, emergency facility, or health care	177
practitioner.	178

(c) As used in division (B)(5)(b) of this section:

179

(i) "Ambulatory care facility" means a facility that provides	180
medical, diagnostic, or surgical treatment to patients who do not	181
require hospitalization, including a dialysis center, ambulatory	182
surgical facility, cardiac catheterization facility, diagnostic	183
imaging center, extracorporeal shock wave lithotripsy center, home	184
health agency, inpatient hospice, birthing center, radiation	185
therapy center, emergency facility, and an urgent care center.	186
"Ambulatory health care facility" does not include the private	187
office of a physician or dentist, whether the office is for an	188
individual or group practice.	189

(ii) "Emergency facility" means a hospital emergency	190
department or any other facility that provides emergency medical	191
services.	192

(iii) "Health care practitioner" has the same meaning as in	193
section 4769.01 of the Revised Code.	194

(iv) "Hospital" has the same meaning as in section 3727.01 of	195
the Revised Code.	196

(v) "Long-term care facility" means a nursing home,	197
residential care facility, or home for the aging, as those terms	198
are defined in section 3721.01 of the Revised Code; an adult care	199
facility, as defined in section 3722.01 of the Revised Code; a	200
nursing facility or intermediate care facility for the mentally	201
retarded, as those terms are defined in section 5111.20 of the	202
Revised Code; a facility or portion of a facility certified as a	203
skilled nursing facility under Title XVIII of the "Social Security	204
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	205

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	206
the Revised Code.	207

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	208
apply to doctors of medicine, doctors of osteopathic medicine,	209
doctors of podiatry, and dentists.	210

(7) Nothing in divisions (B)(1) to (6) of this section	211
affects, or shall be construed as affecting, the immunity from	212
civil liability conferred by section 307.628 or 2305.33 of the	213
Revised Code upon physicians who report an employee's use of a	214
drug of abuse, or a condition of an employee other than one	215
involving the use of a drug of abuse, to the employer of the	216
employee in accordance with division (B) of that section. As used	217
in division (B)(7) of this section, "employee," "employer," and	218
"physician" have the same meanings as in section 2305.33 of the	219
Revised Code.	220

(C) A member of the clergy, rabbi, priest, or regularly	221
ordained, accredited, or licensed minister of an established and	222
legally cognizable church, denomination, or sect, when the member	223
of the clergy, rabbi, priest, or minister remains accountable to	224
the authority of that church, denomination, or sect, concerning a	225
confession made, or any information confidentially communicated,	226
to the member of the clergy, rabbi, priest, or minister for a	227
religious counseling purpose in the member of the clergy's,	228
rabbi's, priest's, or minister's professional character; however,	229
the member of the clergy, rabbi, priest, or minister may testify	230
by express consent of the person making the communication, except	231
when the disclosure of the information is in violation of a sacred	232
trust;	233

(D) Husband or wife, concerning any communication made by one	234
to the other, or an act done by either in the presence of the	235
other, during coverture, unless the communication was made, or act	236
done, in the known presence or hearing of a third person competent	237
to be a witness; and such rule is the same if the marital relation	238
has ceased to exist;	239

(E) A person who assigns a claim or interest, concerning any	240
matter in respect to which the person would not, if a party, be	241
permitted to testify;	242

(F) A person who, if a party, would be restricted under	243
section 2317.03 of the Revised Code, when the property or thing is	244
sold or transferred by an executor, administrator, guardian,	245
trustee, heir, devisee, or legatee, shall be restricted in the	246
same manner in any action or proceeding concerning the property or	247
thing.	248

(G)(1) A school guidance counselor who holds a valid educator	249
license from the state board of education as provided for in	250
section 3319.22 of the Revised Code, a person licensed under	251
Chapter 4757. of the Revised Code as a professional clinical	252
counselor, professional counselor, social worker, independent	253
social worker, marriage and family therapist or independent	254
marriage and family therapist, or registered under Chapter 4757.	255
of the Revised Code as a social work assistant concerning a	256
confidential communication received from a client in that relation	257
or the person's advice to a client unless any of the following	258
applies:	259

(a) The communication or advice indicates clear and present	260
danger to the client or other persons. For the purposes of this	261
division, cases in which there are indications of present or past	262
child abuse or neglect of the client constitute a clear and	263
present danger.	264

(b) The client gives express consent to the testimony.

265

(c) If the client is deceased, the surviving spouse or the	266
executor or administrator of the estate of the deceased client	267
gives express consent.	268

(d) The client voluntarily testifies, in which case the	269
school guidance counselor or person licensed or registered under	270
Chapter 4757. of the Revised Code may be compelled to testify on	271
the same subject.	272

(e) The court in camera determines that the information	273
communicated by the client is not germane to the counselor-client,	274
marriage and family therapist-client, or social worker-client	275
relationship.	276

(f) A court, in an action brought against a school, its	277
administration, or any of its personnel by the client, rules after	278
an in-camera inspection that the testimony of the school guidance	279
counselor is relevant to that action.	280

(g) The testimony is sought in a civil action and concerns	281
court-ordered treatment or services received by a patient as part	282
of a case plan journalized under section 2151.412 of the Revised	283
Code or the court-ordered treatment or services are necessary or	284
relevant to dependency, neglect, or abuse or temporary or	285
permanent custody proceedings under Chapter 2151. of the Revised	286
Code.	287

(2) Nothing in division (G)(1) of this section shall relieve	288
a school guidance counselor or a person licensed or registered	289
under Chapter 4757. of the Revised Code from the requirement to	290
report information concerning child abuse or neglect under section	291
2151.421 of the Revised Code.	292

(H) A mediator acting under a mediation order issued under	293
division (A) of section 3109.052 of the Revised Code or otherwise	294
issued in any proceeding for divorce, dissolution, legal	295
separation, annulment, or the allocation of parental rights and	296
responsibilities for the care of children, in any action or	297
proceeding, other than a criminal, delinquency, child abuse, child	298
neglect, or dependent child action or proceeding, that is brought	299
by or against either parent who takes part in mediation in	300
accordance with the order and that pertains to the mediation	301
process, to any information discussed or presented in the	302
mediation process, to the allocation of parental rights and	303
responsibilities for the care of the parents' children, or to the	304
awarding of parenting time rights in relation to their children;	305

(I) A communications assistant, acting within the scope of	306
the communication assistant's authority, when providing	307
telecommunications relay service pursuant to section 4931.35 of	308
the Revised Code or Title II of the "Communications Act of 1934,"	309
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	310
made through a telecommunications relay service. Nothing in this	311
section shall limit the obligation of a communications assistant	312
to divulge information or testify when mandated by federal law or	313
regulation or pursuant to subpoena in a criminal proceeding.	314

Nothing in this section shall limit any immunity or privilege	315
granted under federal law or regulation.	316

(J)(1) A chiropractor in a civil proceeding concerning a	317
communication made to the chiropractor by a patient in that	318
relation or the chiropractor's advice to a patient, except as	319
otherwise provided in this division. The testimonial privilege	320
established under this division does not apply, and a chiropractor	321
may testify or may be compelled to testify, in any civil action,	322
in accordance with the discovery provisions of the Rules of Civil	323
Procedure in connection with a civil action, or in connection with	324
a claim under Chapter 4123. of the Revised Code, under any of the	325
following circumstances:	326

(a) If the patient or the guardian or other legal	327
representative of the patient gives express consent.	328

(b) If the patient is deceased, the spouse of the patient or	329
the executor or administrator of the patient's estate gives	330
express consent.	331

(c) If a medical claim, dental claim, chiropractic claim, or	332
optometric claim, as defined in section 2305.113 of the Revised	333
Code, an action for wrongful death, any other type of civil	334
action, or a claim under Chapter 4123. of the Revised Code is	335
filed by the patient, the personal representative of the estate of	336
the patient if deceased, or the patient's guardian or other legal	337
representative.	338

(2) If the testimonial privilege described in division (J)(1)	339
of this section does not apply as provided in division (J)(1)(c)	340
of this section, a chiropractor may be compelled to testify or to	341
submit to discovery under the Rules of Civil Procedure only as to	342
a communication made to the chiropractor by the patient in	343
question in that relation, or the chiropractor's advice to the	344
patient in question, that related causally or historically to	345
physical or mental injuries that are relevant to issues in the	346
medical claim, dental claim, chiropractic claim, or optometric	347
claim, action for wrongful death, other civil action, or claim	348
under Chapter 4123. of the Revised Code.	349

(3) The testimonial privilege established under this division	350
does not apply, and a chiropractor may testify or be compelled to	351
testify, in any criminal action or administrative proceeding.	352

(4) As used in this division, "communication" means	353
acquiring, recording, or transmitting any information, in any	354
manner, concerning any facts, opinions, or statements necessary to	355
enable a chiropractor to diagnose, treat, or act for a patient. A	356
communication may include, but is not limited to, any	357
chiropractic, office, or hospital communication such as a record,	358
chart, letter, memorandum, laboratory test and results, x-ray,	359
photograph, financial statement, diagnosis, or prognosis.	360

(K)(1) Except as provided under division (K)(2) of this	361
section, a critical incident stress management team member	362
concerning a communication received from an individual who	363
receives crisis response services from the team member, or the	364
team member's advice to the individual, during a debriefing	365
session.	366

(2) The testimonial privilege established under division	367
(K)(1) of this section does not apply if any of the following are	368
true:	369

(a) The communication or advice indicates clear and present	370
danger to the individual who receives crisis response services or	371
to other persons. For purposes of this division, cases in which	372
there are indications of present or past child abuse or neglect of	373
the individual constitute a clear and present danger.	374

(b) The individual who received crisis response services	375
gives express consent to the testimony.	376

(c) If the individual who received crisis response services	377
is deceased, the surviving spouse or the executor or administrator	378
of the estate of the deceased individual gives express consent.	379

(d) The individual who received crisis response services	380
voluntarily testifies, in which case the team member may be	381
compelled to testify on the same subject.	382

(e) The court in camera determines that the information	383
communicated by the individual who received crisis response	384
services is not germane to the relationship between the individual	385
and the team member.	386

(f) The communication or advice pertains or is related to any	387
criminal act.	388

(3) As used in division (K) of this section:

389

(a) "Crisis response services" means consultation, risk	390
assessment, referral, and on-site crisis intervention services	391
provided by a critical incident stress management team to	392
individuals affected by crisis or disaster.	393

(b) "Critical incident stress management team member" or	394
"team member" means an individual specially trained to provide	395
crisis response services as a member of an organized community or	396
local crisis response team that holds membership in the Ohio	397
critical incident stress management network.	398

(c) "Debriefing session" means a session at which crisis	399
response services are rendered by a critical incident stress	400
management team member during or after a crisis or disaster.	401

(L)(1) Subject to division (L)(2) of this section and except	402
as provided in division (L)(3) of this section, an employee	403
assistance professional, concerning a communication made to the	404
employee assistance professional by a client in the employee	405
assistance professional's official capacity as an employee	406
assistance professional.	407

(2) Division (L)(1) of this section applies to an employee	408
assistance professional who meets either or both of the following	409
requirements:	410

(a) Is certified by the employee assistance certification	411
commission to engage in the employee assistance profession;	412

(b) Has education, training, and experience in all of the	413
following:	414

(i) Providing workplace-based services designed to address	415
employer and employee productivity issues;	416

(ii) Providing assistance to employees and employees'	417
dependents in identifying and finding the means to resolve	418
personal problems that affect the employees or the employees'	419
performance;	420

(iii) Identifying and resolving productivity problems	421
associated with an employee's concerns about any of the following	422
matters: health, marriage, family, finances, substance abuse or	423
other addiction, workplace, law, and emotional issues;	424

(iv) Selecting and evaluating available community resources;

425

(v) Making appropriate referrals;

426

(vi) Local and national employee assistance agreements;

427

(vii) Client confidentiality.

428

(3) Division (L)(1) of this section does not apply to any of	429
the following:	430

(a) A criminal action or proceeding involving an offense	431
under sections 2903.01 to 2903.06 of the Revised Code if the	432
employee assistance professional's disclosure or testimony relates	433
directly to the facts or immediate circumstances of the offense;	434

(b) A communication made by a client to an employee	435
assistance professional that reveals the contemplation or	436
commission of a crime or serious, harmful act;	437

(c) A communication that is made by a client who is an	438
unemancipated minor or an adult adjudicated to be incompetent and	439
indicates that the client was the victim of a crime or abuse;	440

(d) A civil proceeding to determine an individual's mental	441
competency or a criminal action in which a plea of not guilty by	442
reason of insanity is entered;	443

(e) A civil or criminal malpractice action brought against	444
the employee assistance professional;	445

(f) When the employee assistance professional has the express	446
consent of the client or, if the client is deceased or disabled,	447
the client's legal representative;	448

(g) When the testimonial privilege otherwise provided by	449
division (L)(1) of this section is abrogated under law.	450

Sec. 4117.14.  (A) The procedures contained in this section	451
govern the settlement of disputes between an exclusive	452
representative and a public employer concerning the termination or	453
modification of an existing collective bargaining agreement or	454
negotiation of a successor agreement, or the negotiation of an	455
initial collective bargaining agreement.	456

(B)(1) In those cases where there exists a collective	457
bargaining agreement, any public employer or exclusive	458
representative desiring to terminate, modify, or negotiate a	459
successor collective bargaining agreement shall:	460

(a) Serve written notice upon the other party of the proposed	461
termination, modification, or successor agreement. The party must	462
serve the notice not less than sixty days prior to the expiration	463
date of the existing agreement or, in the event the existing	464
collective bargaining agreement does not contain an expiration	465
date, not less than sixty days prior to the time it is proposed to	466
make the termination or modifications or to make effective a	467
successor agreement.	468

(b) Offer to bargain collectively with the other party for	469
the purpose of modifying or terminating any existing agreement or	470
negotiating a successor agreement;	471

(c) Notify the state employment relations board of the offer	472
by serving upon the board a copy of the written notice to the	473
other party and a copy of the existing collective bargaining	474
agreement.	475

(2) In the case of initial negotiations between a public	476
employer and an exclusive representative, where a collective	477
bargaining agreement has not been in effect between the parties,	478
any party may serve notice upon the board and the other party	479
setting forth the names and addresses of the parties and offering	480
to meet, for a period of ninety days, with the other party for the	481
purpose of negotiating a collective bargaining agreement.	482

If the settlement procedures specified in divisions (B), (C),	483
and (D) of this section govern the parties, where those procedures	484
refer to the expiration of a collective bargaining agreement, it	485
means the expiration of the sixty-day period to negotiate a	486
collective bargaining agreement referred to in this subdivision,	487
or in the case of initial negotiations, it means the ninety day	488
period referred to in this subdivision.	489

(3) The parties shall continue in full force and effect all	490
the terms and conditions of any existing collective bargaining	491
agreement, without resort to strike or lock-out, for a period of	492
sixty days after the party gives notice or until the expiration	493
date of the collective bargaining agreement, whichever occurs	494
later, or for a period of ninety days where applicable.	495

(4) Upon receipt of the notice, the parties shall enter into	496
collective bargaining.	497

(C) In the event the parties are unable to reach an	498
agreement, they may submit, at any time prior to forty-five days	499
before the expiration date of the collective bargaining agreement,	500
the issues in dispute to any mutually agreed upon dispute	501
settlement procedure which supersedes the procedures contained in	502
this section.	503

(1) The procedures may include:

504

(a) Conventional arbitration of all unsettled issues;

505

(b) Arbitration confined to a choice between the last offer	506
of each party to the agreement as a single package;	507

(c) Arbitration confined to a choice of the last offer of	508
each party to the agreement on each issue submitted;	509

(d) The procedures described in division (C)(1)(a), (b), or	510
(c) of this section and including among the choices for the	511
arbitrator, the recommendations of the fact finder, if there are	512
recommendations, either as a single package or on each issue	513
submitted;	514

(e) Settlement by a citizens' conciliation council composed	515
of three residents within the jurisdiction of the public employer.	516
The public employer shall select one member and the exclusive	517
representative shall select one member. The two members selected	518
shall select the third member who shall chair the council. If the	519
two members cannot agree upon a third member within five days	520
after their appointments, the board shall appoint the third	521
member. Once appointed, the council shall make a final settlement	522
of the issues submitted to it pursuant to division (G) of this	523
section.	524

(f) Any other dispute settlement procedure mutually agreed to	525
by the parties.	526

(2) If, fifty days before the expiration date of the	527
collective bargaining agreement, the parties are unable to reach	528
an agreement, any party may request the state employment relations	529
board to intervene. The request shall set forth the names and	530
addresses of the parties, the issues involved, and, if applicable,	531
the expiration date of any agreement.	532

The board shall intervene and investigate the dispute to	533
determine whether the parties have engaged in collective	534
bargaining.	535

If an impasse exists or forty-five days before the expiration	536
date of the collective bargaining agreement if one exists, the	537
board shall appoint a mediator to assist the parties in the	538
collective bargaining process.	539

(3) Any time after the appointment of a mediator, either	540
party may request the appointment of a fact-finding panel. Within	541
fifteen days after receipt of a request for a fact-finding panel,	542
the board shall appoint a fact-finding panel of not more than	543
three members who have been selected by the parties in accordance	544
with rules established by the board, from a list of qualified	545
persons maintained by the board.	546

(a) The fact-finding panel shall, in accordance with rules	547
and procedures established by the board that include the	548
regulation of costs and expenses of fact-finding, gather facts and	549
make recommendations for the resolution of the matter. The board	550
shall by its rules require each party to specify in writing the	551
unresolved issues and its position on each issue to the	552
fact-finding panel. The fact-finding panel shall make final	553
recommendations as to all the unresolved issues.	554

(b) The board may continue mediation, order the parties to	555
engage in collective bargaining until the expiration date of the	556
agreement, or both.	557

(4) The following guidelines apply to fact-finding:

558

(a) The fact-finding panel may establish times and place of	559
hearings which shall be, where feasible, in the jurisdiction of	560
the state.	561

(b) The fact-finding panel shall conduct the hearing pursuant	562
to rules established by the board.	563

(c) Upon request of the fact-finding panel, the board shall	564
issue subpoenas for hearings conducted by the panel.	565

(d) The fact-finding panel may administer oaths.

566

(e) The board shall prescribe guidelines for the fact-finding	567
panel to follow in making findings. In making its recommendations,	568
the fact-finding panel shall take into consideration the factors	569
listed in divisions (G)(7)(a) to (f) of this section.	570

(f) The fact-finding panel may attempt mediation at any time	571
during the fact-finding process. From the time of appointment	572
until the fact-finding panel makes a final recommendation, it	573
shall not discuss the recommendations for settlement of the	574
dispute with parties other than the direct parties to the dispute.	575

(5) The fact-finding panel, acting by a majority of its	576
members, shall transmit its findings of fact and recommendations	577
on the unresolved issues to the public employer and employee	578
organization involved and to the board no later than fourteen days	579
after the appointment of the fact-finding panel, unless the	580
parties mutually agree to an extension. The parties shall share	581
the cost of the fact-finding panel in a manner agreed to by the	582
parties.	583

(6)(a)(a) Not later than seven days after the findings and	584
recommendations are sent, the legislative body, by a three-fifths	585
vote of its total membership, and in the case of the public	586
employee organization, the membership, by a three-fifths vote of	587
the total membership, may reject the recommendations; if neither	588
rejects the recommendations, the recommendations shall be deemed	589
agreed upon as the final resolution of the issues submitted and a	590
collective bargaining agreement shall be executed between the	591
parties, including the fact-finding panel's recommendations,	592
except as otherwise modified by the parties by mutual agreement.	593
If either the legislative body or the public employee organization	594
rejects the recommendations, the board shall publicize the	595
findings of fact and recommendations of the fact-finding panel.	596
The board shall adopt rules governing the procedures and methods	597
for public employees to vote on the recommendations of the	598
fact-finding panel.	599

(b) As used in division (C)(6)(a) of this section,	600
"legislative body" means the controlling board when the state or	601
any of its agencies, authorities, commissions, boards, or other	602
branch of public employment is party to the fact-finding process.	603
(b) As used in division (C)(6)(a) of this section, "legislative	604
body" means the controlling board when the state or any of its	605
agencies, authorities, commissions, boards, or other branch of	606
public employment is party to the fact-finding process.	607

(D) If the parties are unable to reach agreement within seven	608
days after the publication of findings and recommendations from	609
the fact-finding panel or the collective bargaining agreement, if	610
one exists, has expired, then the:	611

(1) Public employees, who are members of a police or fire	612
department, members of the state highway patrol, deputy sheriffs,	613
dispatchers employed by a police, fire or sheriff's department or	614
the state highway patrol or civilian dispatchers employed by a	615
public employer other than a police, fire, or sheriff's department	616
to dispatch police, fire, sheriff's department, or emergency	617
medical or rescue personnel and units, an exclusive nurse's unit,	618
employees of the state school for the deaf or the state school for	619
the blind, employees of any public employee retirement system,	620
corrections officers, guards at penal or mental institutions,	621
special police officers appointed in accordance with sections	622
5119.14 and 5123.13 of the Revised Code, psychiatric attendants	623
employed at mental health forensic facilities, or youth leaders	624
employed at juvenile correctional facilities, shall submit the	625
matter to a final offer settlement procedure pursuant to a board	626
order issued forthwith to the parties to settle by a conciliator	627
selected by the parties. The parties shall request from the board	628
a list of five qualified conciliators and the parties shall select	629
a single conciliator from the list by alternate striking of names.	630
If the parties cannot agree upon a conciliator within five days	631
after the board order, the board shall on the sixth day after its	632
order appoint a conciliator from a list of qualified persons	633
maintained by the board or shall request a list of qualified	634
conciliators from the American arbitration association and appoint	635
therefrom.	636

(2) Public employees other than those listed in division	637
(D)(1) of this section have the right to strike under Chapter	638
4117. of the Revised Code provided that the employee organization	639
representing the employees has given a ten-day prior written	640
notice of an intent to strike to the public employer and to the	641
board, and further provided that the strike is for full,	642
consecutive work days and the beginning date of the strike is at	643
least ten work days after the ending date of the most recent prior	644
strike involving the same bargaining unit; however, the board, at	645
its discretion, may attempt mediation at any time.	646

(E) Nothing in this section shall be construed to prohibit	647
the parties, at any time, from voluntarily agreeing to submit any	648
or all of the issues in dispute to any other alternative dispute	649
settlement procedure. An agreement or statutory requirement to	650
arbitrate or to settle a dispute pursuant to a final offer	651
settlement procedure and the award issued in accordance with the	652
agreement or statutory requirement is enforceable in the same	653
manner as specified in division (B) of section 4117.09 of the	654
Revised Code.	655

(F) Nothing in this section shall be construed to prohibit a	656
party from seeking enforcement of a collective bargaining	657
agreement or a conciliator's award as specified in division (B) of	658
section 4117.09 of the Revised Code.	659

(G) The following guidelines apply to final offer settlement	660
proceedings under division (D)(1) of this section:	661

(1) The parties shall submit to final offer settlement those	662
issues that are subject to collective bargaining as provided by	663
section 4117.08 of the Revised Code and upon which the parties	664
have not reached agreement and other matters mutually agreed to by	665
the public employer and the exclusive representative; except that	666
the conciliator may attempt mediation at any time.	667

(2) The conciliator shall hold a hearing within thirty days	668
of the board's order to submit to a final offer settlement	669
procedure, or as soon thereafter as is practicable.	670

(3) The conciliator shall conduct the hearing pursuant to	671
rules developed by the board. The conciliator shall establish the	672
hearing time and place, but it shall be, where feasible, within	673
the jurisdiction of the state. Not later than five calendar days	674
before the hearing, each of the parties shall submit to the	675
conciliator, to the opposing party, and to the board, a written	676
report summarizing the unresolved issues, the party's final offer	677
as to the issues, and the rationale for that position.	678

(4) Upon the request by the conciliator, the board shall	679
issue subpoenas for the hearing.	680

(5) The conciliator may administer oaths.

681

(6) The conciliator shall hear testimony from the parties and	682
provide for a written record to be made of all statements at the	683
hearing. The board shall submit for inclusion in the record and	684
for consideration by the conciliator the written report and	685
recommendation of the fact-finders.	686

(7) After hearing, the conciliator shall resolve the dispute	687
between the parties by selecting, on an issue-by-issue basis, from	688
between each of the party's final settlement offers, taking into	689
consideration the following:	690

(a) Past collectively bargained agreements, if any, between	691
the parties;	692

(b) Comparison of the issues submitted to final offer	693
settlement relative to the employees in the bargaining unit	694
involved with those issues related to other public and private	695
employees doing comparable work, giving consideration to factors	696
peculiar to the area and classification involved;	697

(c) The interests and welfare of the public, the ability of	698
the public employer to finance and administer the issues proposed,	699
and the effect of the adjustments on the normal standard of public	700
service;	701

(d) The lawful authority of the public employer;

702

(e) The stipulations of the parties;

703

(f) Such other factors, not confined to those listed in this	704
section, which are normally or traditionally taken into	705
consideration in the determination of the issues submitted to	706
final offer settlement through voluntary collective bargaining,	707
mediation, fact-finding, or other impasse resolution procedures in	708
the public service or in private employment.	709

(8) Final offer settlement awards made under Chapter 4117. of	710
the Revised Code are subject to Chapter 2711. of the Revised Code.	711

(9) If more than one conciliator is used, the determination	712
must be by majority vote.	713

(10) The conciliator shall make written findings of fact and	714
promulgate a written opinion and order upon the issues presented	715
to the conciliator, and upon the record made before the	716
conciliator and shall mail or otherwise deliver a true copy	717
thereof to the parties and the board.	718

(11) Increases in rates of compensation and other matters	719
with cost implications awarded by the conciliator may be effective	720
only at the start of the fiscal year next commencing after the	721
date of the final offer settlement award; provided that if a new	722
fiscal year has commenced since the issuance of the board order to	723
submit to a final offer settlement procedure, the awarded	724
increases may be retroactive to the commencement of the new fiscal	725
year. The parties may, at any time, amend or modify a	726
conciliator's award or order by mutual agreement.	727

(12) The parties shall bear equally the cost of the final	728
offer settlement procedure.	729

(13) Conciliators appointed pursuant to this section shall be	730
residents of the state.	731

(H) All final offer settlement awards and orders of the	732
conciliator made pursuant to Chapter 4117. of the Revised Code are	733
subject to review by the court of common pleas having jurisdiction	734
over the public employer as provided in Chapter 2711. of the	735
Revised Code. If the public employer is located in more than one	736
court of common pleas district, the court of common pleas in which	737
the principal office of the chief executive is located has	738
jurisdiction.	739

(I) The issuance of a final offer settlement award	740
constitutes a binding mandate to the public employer and the	741
exclusive representative to take whatever actions are necessary to	742
implement the award.	743

Section 2. That existing sections 2317.02 and 4117.14 of the	744
Revised Code are hereby repealed.	745

Section 3.  Section 2317.02 of the Revised Code is presented	746
in this act as a composite of the section as amended by Am. Sub.	747
H.B. 374, Am. H.B. 533, and Am. Sub. S.B. 281, all of the 124th	748
General Assembly. The General Assembly, applying the principle	749
stated in division (B) of section 1.52 of the Revised Code that	750
amendments are to be harmonized if reasonably capable of	751
simultaneous operation, finds that the composite is the resulting	752
version of the section in effect prior to the effective date of	753
the section as presented in this act.	754