As Introduced

127th General Assembly
Regular Session
2007-2008
S. B. No. 176


Senator Boccieri 

Cosponsors: Senators Stivers, Mumper, Padgett, Cafaro, Clancy, Schaffer, Roberts, Niehaus, Mason, Gardner, Fedor, Wilson, Kearney, Miller, D., Grendell, Cates, Schuler, Spada, Schuring, Harris, Miller, R., Goodman, Sawyer, Morano, Carey, Buehrer, Coughlin, Jacobson, Austria, Smith, Faber 

A BILL
To amend sections 2311.07, 2311.08, 2743.03, 3319.13, 1
5903.02, 5903.99, and 5923.05, to enact section 2
2743.091, and to repeal sections 124.29 and 3
5903.01 of the Revised Code to establish specified 4
employment rights for private sector employees in 5
the uniformed services, to permit a person 6
aggrieved under the federal "Uniformed Services 7
Employment and Reemployment Rights Act" to file a 8
claim against the person's employer in a state 9
court, to require the clerk of the Court to give 10
such action priority on the Court's dockets, and 11
to prohibit the Court from requiring a plantiff to 12
pay court costs.13


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

       Section 1.  That sections 2311.07, 2311.08, 2743.03, 3319.13, 14
5903.02, 5903.99, and 5923.05 be amended and section 2743.091 of 15
the Revised Code be enacted to read as follows:16

       Sec. 2311.07.  Cases in which there is an issue of fact or 17
damages to be assessed shall be tried in the order in which they 18
stand on the trial docket, unless by the consent of parties, or by 19
the order of the court, they are continued or placed at the end of 20
the docket, or for good cause shown are especially assigned for 21
trial or hearing out of their regular order. Actions for wages and 22
actions pursuant to section 5903.02 of the Revised Code shall be 23
first in order for trial.24

       Sec. 2311.08.  The court may assign for trial the cases 25
triable to a jury, in a series, in the order in which they stand 26
upon the docket, giving preference always to actions for wages, 27
actions pursuant to section 5903.02 of the Revised Code, and cases 28
not triable to a jury, in a series in like manner. All other cases 29
shall be heard in the order in which they stand upon the trial 30
docket, unless the court otherwise directs.31

       Sec. 2743.03.  (A)(1) There is hereby created a court of32
claims. The court of claims is a court of record and has33
exclusive, original jurisdiction of all civil actions against the34
state permitted by the waiver of immunity contained in section35
2743.02 of the Revised Code, exclusive jurisdiction of the causes36
of action of all parties in civil actions that are removed to the37
court of claims, and jurisdiction to hear appeals from the38
decisions of the court of claims commissioners. The court shall39
have full equity powers in all actions within its jurisdiction and 40
may entertain and determine all counterclaims, cross-claims, and 41
third-party claims.42

       (2) If the claimant in a civil action as described in43
division (A)(1) of this section also files a claim for a44
declaratory judgment, injunctive relief, or other equitable relief 45
against the state that arises out of the same circumstances that 46
gave rise to the civil action described in division (A)(1) of this 47
section, the court of claims has exclusive, original jurisdiction 48
to hear and determine that claim in that civil action. This 49
division does not affect, and shall not be construed as affecting, 50
the original jurisdiction of another court of this state to hear 51
and determine a civil action in which the sole relief that the 52
claimant seeks against the state is a declaratory judgment, 53
injunctive relief, or other equitable relief.54

       (3) In addition to its exclusive, original jurisdiction as55
conferred by division (A)(1) and (2) of this section, the court of 56
claims has exclusive, original jurisdiction as described in57
division (F) of section 2743.02 and, division (B) of section58
3335.03, and division (C) of section 5903.02 of the Revised Code.59

       (B) The court of claims shall sit in Franklin county, its60
hearings shall be public, and it shall consist of incumbent61
justices or judges of the supreme court, courts of appeals, or62
courts of common pleas, or retired justices or judges eligible for 63
active duty pursuant to division (C) of Section 6 of Article IV, 64
Ohio Constitution, sitting by temporary assignment of the chief 65
justice of the supreme court. The chief justice may direct the 66
court to sit in any county for cases on removal upon a showing of 67
substantial hardship and whenever justice dictates.68

       (C)(1) A civil action against the state shall be heard and69
determined by a single judge. Upon application by the claimant or 70
the state, the chief justice of the supreme court may assign a71
panel of three judges to hear and determine a civil action72
presenting novel or complex issues of law or fact. Concurrence of 73
two members of the panel is necessary for any judgment or order.74

       (2) Whenever the chief justice of the supreme court believes 75
an equitable resolution of a case will be expedited, hethe chief 76
justice may appoint referees in accordance with Civil Rule 53 to 77
hear the case.78

       (3) When any dispute under division (B) of section 153.12 of 79
the Revised Code is brought to the court of claims, upon request 80
of either party to the dispute, the chief justice of the supreme 81
court shall appoint a single referee or a panel of three referees. 82
The referees need not be attorneys, but shall be persons 83
knowledgeable about construction contract law, a member of the 84
construction industry panel of the American arbitration85
association, or an individual or individuals deemed qualified by86
the chief justice to serve. No person shall serve as a referee if 87
that person has been employed by an affected state agency or a88
contractor or subcontractor involved in the dispute at any time in 89
the preceding five years. Proceedings governing referees shall be 90
in accordance with Civil Rule 53, except as modified by this 91
division. The referee or panel of referees shall submit its92
report, which shall include a recommendation and finding of fact,93
to the judge assigned to the case by the chief justice, within94
thirty days of the conclusion of the hearings. Referees appointed 95
pursuant to this division shall be compensated on a per diem basis 96
at the same rate as is paid to judges of the court and also shall 97
be paid their expenses. If a single referee is appointed or a 98
panel of three referees is appointed, then, with respect to one 99
referee of the panel, the compensation and expenses of the referee 100
shall not be taxed as part of the costs in the case but shall be 101
included in the budget of the court. If a panel of three referees 102
is appointed, the compensation and expenses of the two remaining 103
referees shall be taxed as costs of the case.104

       All costs of a case shall be apportioned among the parties.105
The court may not require that any party deposit with the court106
cash, bonds, or other security in excess of two hundred dollars to 107
guarantee payment of costs without the prior approval in each case 108
of the chief justice.109

       (4) An appeal from a decision of the court of claims110
commissioners shall be heard and determined by one judge of the111
court of claims.112

       (D) The Rules of Civil Procedure shall govern practice and113
procedure in all actions in the court of claims, except insofar as 114
inconsistent with this chapter. The supreme court may promulgate 115
rules governing practice and procedure in actions in the court as 116
provided in Section 5 of Article IV, Ohio Constitution.117

       (E)(1) A party who files a counterclaim against the state or 118
makes the state a third-party defendant in an action commenced in 119
any court, other than the court of claims, shall file a petition 120
for removal in the court of claims. The petition shall state the 121
basis for removal, be accompanied by a copy of all process, 122
pleadings, and other papers served upon the petitioner, and shall 123
be signed in accordance with Civil Rule 11. A petition for removal 124
based on a counterclaim shall be filed within twenty-eight days 125
after service of the counterclaim of the petitioner. A petition 126
for removal based on third-party practice shall be filed within 127
twenty-eight days after the filing of the third-party complaint of 128
the petitioner.129

       (2) Within seven days after filing a petition for removal,130
the petitioner shall give written notice to the parties, and shall 131
file a copy of the petition with the clerk of the court in which 132
the action was brought originally. The filing effects the removal 133
of the action to the court of claims, and the clerk of the court 134
where the action was brought shall forward all papers in the case 135
to the court of claims. The court of claims shall adjudicate all 136
civil actions removed. The court may remand a civil action to the 137
court in which it originated upon a finding that the removal 138
petition does not justify removal, or upon a finding that the 139
state is no longer a party.140

       (3) Bonds, undertakings, or security and injunctions,141
attachments, sequestrations, or other orders issued prior to142
removal remain in effect until dissolved or modified by the court143
of claims.144

       Sec. 2743.091.  If a person brings an action in the court of 145
claims pursuant to section 5903.02 of the Revised Code or section 146
4323 of the "Uniformed Services Employment and Reemployment Rights 147
Act of 1994," 108 Stat. 3149, 38 U.S.C. 4301, et. seq., the clerk 148
of the court of claims shall give the action priority on the court 149
of claims' dockets.150

       Sec. 3319.13.  Upon the written request of a teacher or a151
regular nonteaching school employee, a board of education may152
grant a leave of absence for a period of not more than two153
consecutive school years for educational, professional, or other154
purposes, and shall grant such leave where illness or other155
disability is the reason for the request. Upon subsequent request, 156
such leave may be renewed by the board. Without request, a board 157
may grant similar leave of absence and renewals thereof to any 158
teacher or regular nonteaching school employee because of physical 159
or mental disability, but such teacher may have a hearing on such 160
unrequested leave of absence or its renewals in accordance with 161
section 3319.16 of the Revised Code, and such nonteaching school 162
employee may have a hearing on such unrequested leave of absence 163
or its renewals in accordance with division (C) of section164
3319.081 of the Revised Code. Upon the return to service of a165
teacher or a nonteaching school employee at the expiration of a166
leave of absence, the teacher or nonteaching school employee shall167
resume the contract status that the teacher or nonteaching school168
employee held prior to the leave of absence. Any teacher who169
leaves a teaching position for service in the uniformed services170
and who returns from service in the uniformed services that is171
terminated in a manner other than as described in section 4304 of172
Title 38 of the United States Code, "Uniformed Services Employment173
and Reemployment Rights Act of 1994," 108 Stat. 3149, 38 U.S.C.A.174
4304, shall resume the contract status held prior to entering the175
uniformed services, subject to passing a physical examination by176
an individual authorized by the Revised Code to conduct physical177
examinations, including a physician assistant, a clinical nurse178
specialist, a certified nurse practitioner, or a certified179
nurse-midwife. Any written documentation of the physical180
examination shall be completed by the individual who conducted the181
examination. Such contract status shall be resumed at the first of 182
the school semester or the beginning of the school year following 183
return from the uniformed services. For purposes of this section 184
and section 3319.14 of the Revised Code, "uniformed services" and 185
"service in the uniformed services" have the same meanings as 186
defined in section 5903.015923.05 of the Revised Code.187

       Upon the return of a nonteaching school employee from a leave188
of absence, the board may terminate the employment of a person189
hired exclusively for the purpose of replacing the returning190
employee while the returning employee was on leave. If, after the191
return of a nonteaching employee from leave, the person employed192
exclusively for the purpose of replacing an employee while the193
employee was on leave is continued in employment as a regular194
nonteaching school employee or if the person is hired by the board195
as a regular nonteaching school employee within a year after196
employment as a replacement is terminated, the person shall, for197
purposes of section 3319.081 of the Revised Code, receive credit198
for the person's length of service with the school district during199
such replacement period in the following manner:200

       (A) If employed as a replacement for less than twelve months, 201
the person shall be employed under a contract valid for a period 202
equal to twelve months less the number of months employed as a 203
replacement. At the end of such contract period, if the person is 204
reemployed it shall be under a two-year contract. Subsequent 205
reemployment shall be pursuant to division (B) of section 3319.081 206
of the Revised Code.207

       (B) If employed as a replacement for twelve months or more208
but less than twenty-four months, the person shall be employed209
under a contract valid for a period equal to twenty-four months210
less the number of months employed as a replacement. Subsequent211
reemployment shall be pursuant to division (B) of section 3319.081212
of the Revised Code.213

       (C) If employed as a replacement for more than twenty-four214
months, the person shall be employed pursuant to division (B) of215
section 3319.081 of the Revised Code.216

       For purposes of this section, employment during any part of a217
month shall count as employment during the entire month.218

       Sec. 5903.02.  (A) The determination of reinstatement and 219
reemployment rights of permanent public employees and permanent 220
private employees in the uniformed services shall be made in 221
accordance withAs used in this section, "uniformed services" and 222
"service in the uniformed services" have the same meanings as in223
the "Uniformed Services Employment and Reemployment Rights Act of 224
1994," 108 Stat. 3149, 38 U.S.C.A. 4301, et. seq4303.225

       (B) Any person whose absence from a position of employment is 226
necessitated by reason of service in the uniformed services or in 227
the Ohio organized militia has the same reinstatement and 228
reemployment rights in this state that a person has under the 229
"Uniformed Services Employment and Reemployment Rights Act of 230
1994." A person who is denied a reinstatement or reemployment 231
right pursuant to this section has a cause of action for the same 232
remedies as a person has under the "Uniformed Services Employment 233
and Reemployment Rights Act of 1994." The court of common pleas, 234
notwithstanding any sum limitation established by decision of a 235
board of county commissioners pursuant to section 2305.01 of the 236
Revised Code, shall have exclusive original jurisdiction for such 237
actions, unless the defendant is the state, in which case the 238
court of claims shall have exclusive original jurisdiction 239
pursuant to division (C) of this section.240

       (C) A person who seeks reinstatement or reemployment rights 241
with the state, pursuant to this section, may bring an action in 242
the court of claims pursuant to this section or section 4323 of 243
the "Uniformed Services Employment and Reemployment Rights Act of 244
1994." 245

       (D) Notwithstanding any other provision of the Revised Code, 246
court costs may not be charged against any person claiming rights 247
under this section.248

       (E) In any action or proceeding to enforce a provision of 249
this section the court may award to a plaintiff who prevails in 250
such action or proceeding reasonable attorney's fees, expert 251
witness fees, and other litigation expenses. If the plaintiff does 252
not receive a favorable judgment from the court in that action, 253
the court shall not require the plaintiff to reimburse the state 254
for attorney's fees.255

       (F) The director of administrative services shall adopt rules 256
in accordance with Chapter 119. of the Revised Code for the257
implementation of this chapter with respect to persons in public 258
service.259

       Sec. 5903.99.  Whoever violates sections 5903.01 andsection260
5903.02 of the Revised Code may be fined not more than one 261
thousand dollars or imprisoned not more than six months, or both.262

       Sec. 5923.05.  (A)(1) Permanent public employees who are263
members of the Ohio organized militia or members of other reserve264
components of the armed forces of the United States, including the265
Ohio national guard, are entitled to a leave of absence from their266
respective positions without loss of pay for the time they are267
performing service in the uniformed services, for periods of up to 268
one month, for each calendar year in which they are performing269
service in the uniformed services.270

       (2) As used in this section:271

       (a) "Calendar year" means the year beginning on the first day272
of January and ending on the last day of December.273

       (b) "Month" means twenty-two eight-hour work days or one274
hundred seventy-six hours within one calendar year.275

       (c) "Permanent public employees" and "uniformed services"276
have the same meanings as in section 5903.01 of the Revised Code277
employee" means any person holding a position in public employment 278
that requires working a regular schedule of twenty-six consecutive279
biweekly pay periods, or any other regular schedule of comparable 280
consecutive pay periods, which is not limited to a specific season 281
or duration. "Permanent public employee" does not include student 282
help; intermittent, seasonal, or external interim employees; or 283
individuals covered by personal services contracts.284

       (d) "State agency" means any department, bureau, board,285
commission, office, or other organized body established by the286
constitution or laws of this state for the exercise of any287
function of state government, the general assembly, all288
legislative agencies, the supreme court, the court of claims, and289
the state-supported institutions of higher education.290

       (e) "Service in the uniformed services" means the performance 291
of duty, on a voluntary or involuntary basis, in a uniformed 292
service, under competent authority, and includes active duty, 293
active duty for training, initial active duty for training, 294
inactive duty for training, full-time national guard duty, and 295
performance of duty or training by a member of the Ohio organized 296
militia pursuant to Chapter 5923. of the Revised Code. "Service in 297
the uniformed services" includes also the period of time for which 298
a person is absent from a position of public or private employment 299
for the purpose of an examination to determine the fitness of the 300
person to perform any duty described in this division.301

       (f) "Uniformed services" means the armed forces, the Ohio 302
organized militia when engaged in active duty for training, 303
inactive duty training, or full-time national guard duty, the 304
commissioned corps of the public health service, and any other 305
category of persons designated by the president of the United 306
States in time of war or emergency.307

       (B) Except as otherwise provided in division (D) of this308
section, any permanent public employee who is employed by a309
political subdivision, who is entitled to the leave provided under 310
division (A) of this section, and who is called or ordered to the 311
uniformed services for longer than a month, for each calendar year 312
in which the employee performed service in the uniformed services, 313
because of an executive order issued by the president of the314
United States, because of an act of congress, or because of an 315
order to perform duty issued by the governor pursuant to section 316
5919.29 of the Revised Code is entitled, during the period 317
designated in the order or act, to a leave of absence and to be 318
paid, during each monthly pay period of that leave of absence, the319
lesser of the following:320

       (1) The difference between the permanent public employee's321
gross monthly wage or salary as a permanent public employee and322
the sum of the permanent public employee's gross uniformed pay and323
allowances received that month;324

       (2) Five hundred dollars.325

       (C) Except as otherwise provided in division (D) of this326
section, any permanent public employee who is employed by a state327
agency, who is entitled to the leave provided under division (A)328
of this section, and who is called or ordered to the uniformed329
services for longer than a month, for each calendar year in which330
the employee performed service in the uniformed services, because331
of an executive order issued by the president of the United332
States, because of an act of congress, or because of an order to333
perform duty issued by the governor pursuant to section 5919.29 or 334
5923.21 of the Revised Code is entitled, during the period 335
designated in the order or act, to a leave of absence and to be 336
paid, during each monthly pay period of that leave of absence, the 337
difference between the permanent public employee's gross monthly 338
wage or salary as a permanent public employee and the sum of the 339
permanent public employee's gross uniformed pay and allowances 340
received that month.341

       (D) No permanent public employee shall receive payments under 342
division (B) or (C) of this section if the sum of the permanent343
public employee's gross uniformed pay and allowances received in a344
pay period exceeds the employee's gross wage or salary as a345
permanent public employee for that period or if the permanent346
public employee is receiving pay under division (A) of this347
section.348

       (E) Any political subdivision of the state, as defined in349
section 2744.01 of the Revised Code, may elect to pay any of its350
permanent public employees who are entitled to the leave provided351
under division (A) of this section and who are called or ordered352
to the uniformed services for longer than one month, for each353
calendar year in which the employee performed service in the354
uniformed services, because of an executive order issued by the355
president or an act of congress, such payments, in addition to356
those payments required by division (B) of this section, as may be357
authorized by the legislative authority of the political358
subdivision.359

       (F) Each permanent public employee who is entitled to leave360
provided under division (A) of this section shall submit to the361
permanent public employee's appointing authority the published362
order authorizing the call or order to the uniformed services or a363
written statement from the appropriate military commander364
authorizing that service, prior to being credited with that leave.365

       (G) Any permanent public employee of a political subdivision366
whose employment is governed by a collective bargaining agreement367
with provision for the performance of service in the uniformed368
services shall abide by the terms of that collective bargaining369
agreement with respect to the performance of that service, except370
that no collective bargaining agreement may afford fewer rights371
and benefits than are conferred under this section.372

       Section 2. That existing sections 2311.07, 2311.08, 2743.03, 373
3319.13, 5903.02, 5903.99, and 5923.05 and sections 124.29 and 374
5903.01 of the Revised Code are hereby repealed.375