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(122nd General Assembly)(Amended Substitute Senate Bill Number 229)
AN ACT
To amend sections 124.34, 124.57, 4117.01, 5501.31, 5513.02, 5515.02,
5516.02, 5516.06, 5521.01, and 5525.19, to enact sections 4981.091, 5501.20,
5516.05, and 5533.48, and to
repeal
section 5501.19
of the Revised Code
and to amend Section 7.04 of Am.
Sub. H.B. 210 of the 122nd General Assembly, as amended by Am. Sub. S.B. 230
of the 122nd General Assembly,
to make changes in
certain laws governing the Department of Transportation in the
areas of appropriation
of property for political subdivisions for transportation
purposes and the purchase of certain supplies by the
Department, to create a pilot
program establishing the career professional
service within the classified civil service of the
Department of Transportation and authorizing the Department to
appoint persons to positions within the career professional service until June
30, 2003,
to
eliminate the right of certain unclassified employees of the Department to
return to classified positions they previously held, to create a scenic byway
program in the Department, to create the Federal Rail Fund,
to allow an employee of
the Ohio Cooperative Extension Service whose position is transferred from the
unclassified to the classified civil service and who holds the office of
president of a city legislative authority to complete the existing term of
office as president,
to permit outdoor advertising
devices to be erected on the premises of a professional sports facility if the
devices conform to rules adopted by the Director of Transportation,
and to designate a
portion of United States Route Number Two Hundred Twenty-Four as the "Cliff
Skeen Memorial Highway."
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 124.34, 124.57, 4117.01, 5501.31, 5513.02, 5515.02,
5516.02, 5516.06, 5521.01, and 5525.19 be amended and sections 4981.091,
5501.20, 5516.05, and 5533.48 of
the
Revised Code be
enacted to read as follows:
Sec. 124.34. The tenure of every officer or employee in
the classified service of the state and the counties, civil
service townships, cities, city health districts, general health
districts, and city school districts thereof, holding a position
under this chapter of the Revised Code, shall be during good
behavior and efficient service, and no such officer or employee
shall be reduced in pay or position, fined in excess of five days'
pay, suspended, or removed, except as provided in section 124.32 of
the Revised Code, and for incompetency, inefficiency, dishonesty, drunkenness,
immoral conduct, insubordination, discourteous treatment of the public,
neglect of duty, violation of such sections or the rules of the
director of administrative services or the commission, or any
other failure of good behavior, or any other acts of misfeasance,
malfeasance, or nonfeasance in office. A finding by the
appropriate ethics commission, based upon a preponderance of the
evidence, that the facts alleged in a complaint under section
102.06 of the Revised Code constitute a violation of Chapter
102., section 2921.42, or section 2921.43 of the Revised Code may
constitute grounds for dismissal. Failure to file a statement or
falsely filing a statement required by section 102.02 of the
Revised Code may also constitute grounds for dismissal. The tenure of an
employee in the career professional service of the department of
transportation is subject to section 5501.20 of the Revised
Code. In any case of a fine, reduction, suspension of more than three
working days, or removal, the appointing authority shall furnish
such employee with a copy of the order of reduction, suspension,
or removal, which order shall state the reasons therefor. Such
order shall be filed with the director of administrative services
and state personnel board of review, or the commission, as may be
appropriate. Within ten days following the filing of such order or, in the case of an
employee in the career professional service of the department of
transportation, within ten days following the filing of a removal order,
the
employee may file an appeal, in writing, with the state personnel
board of review or the commission. In the event such an appeal
is filed, the board or commission shall forthwith notify the
appointing authority and shall hear, or appoint a trial board to
hear, such appeal within thirty days from and after its filing
with the board or commission, and it may affirm, disaffirm, or
modify the judgment of the appointing authority. In cases of removal or reduction in pay for disciplinary
reasons, either the appointing authority or the officer or
employee may appeal from the decision of the state personnel
board of review or the commission to the court of common pleas of
the county in which the employee resides in accordance with the
procedure provided by section 119.12 of the Revised Code. In the case of the suspension for any period of time, or
a fine, demotion, or removal of a chief of police or a chief of
a fire department or any member of the police or fire department of a
city or civil service township, the appointing authority shall
furnish such chief or member of a department with a copy of the
order of suspension, demotion, or removal, which order shall
state the reasons therefor. Such order shall be filed with the
municipal or civil service township civil service commission.
Within ten days following the filing of such order such chief or
member of a department may file an appeal, in writing, with the
municipal or civil service township civil service commission. In
the event such an appeal is filed, the commission shall forthwith
notify the appointing authority and shall hear, or appoint a
trial board to hear, such appeal within thirty days from and
after its filing with the commission, and it may affirm,
disaffirm, or modify the judgment of the appointing authority. An appeal on
questions of law and fact may be had from the
decision of the municipal or civil service township civil service
commission to the court of common pleas in the county in which
such city or civil service township is situated. Such appeal
shall be taken within thirty days from the finding of the
commission. A violation of division (A)(7) of section 2907.03 of the Revised Code is
grounds for termination of employment of a nonteaching employee under this
section. Sec. 124.57. (A) No officer or employee in the classified
service of the state, the several counties, cities, and city
school districts thereof, and civil service townships, shall
directly or indirectly, orally or by letter, solicit or receive,
or be in any manner concerned in soliciting or receiving any
assessment, subscription, or contribution for any political party
or for any candidate for public office; nor shall any person
solicit directly or indirectly, orally or by letter, or be in any
manner concerned in soliciting any such assessment, contribution,
or payment from any officer or employee in the classified service
of the state and the several counties, cities, or city school
districts thereof, or civil service townships; nor shall any
officer or employee in the classified service of the state, the
several counties, cities, and city school districts thereof, and
civil service townships, be an officer in any political
organization or take part in politics other than to vote as he the
officer or employee pleases and to express freely his political
opinions. (B)(1) Nothing in division (A) of this section prohibits an
officer or employee described in that division from serving as a precinct
election official under section 3501.22 of the Revised Code. An officer or
employee who serves as a precinct election official may use vacation leave to
so serve. (2) Nothing in division (A) of this section prohibits an
employee of the Ohio cooperative extension service whose position is
transferred from the unclassified civil service to the classified civil
service and who also holds the office of president of a city legislative
authority from completing the existing term of office as president. Sec. 4117.01. As used in this chapter: (A) "Person," in addition to those included in division
(C) of section 1.59 of the Revised Code, includes employee
organizations, public employees, and public employers. (B) "Public employer" means the state or any political
subdivision of the state located entirely within the state,
including, without limitation, any municipal corporation with a
population of at least five thousand according to the most recent
federal decennial census; county; township with a population of
at least five thousand in the unincorporated area of the township
according to the most recent federal decennial census; school
district; governing authority of a community school established under Chapter
3314. of the Revised Code; state institution of higher learning; public or
special district; state agency, authority, commission, or
board; or other branch of public employment. (C) "Public employee" means any person holding a position
by appointment or employment in the service of a public employer,
including any person working pursuant to a contract between a
public employer and a private employer and over whom the national
labor relations board has declined jurisdiction on the basis that
the involved employees are employees of a public employer,
except: (1) Persons holding elective office; (2) Employees of the general assembly and employees of any
other legislative body of the public employer whose principal
duties are directly related to the legislative functions of the
body; (3) Employees on the staff of the governor or the chief
executive of the public employer whose principal duties are
directly related to the performance of the executive functions of
the governor or the chief executive; (4) Persons who are members of the Ohio organized militia,
while training or performing duty under section 5919.29 or 5923.12 of the
Revised Code; (5) Employees of the state employment relations board; (6) Confidential employees; (7) Management level employees; (8) Employees and officers of the courts, assistants to
the attorney general, assistant prosecuting attorneys, and
employees of the clerks of courts who perform a judicial
function; (9) Employees of a public official who act in a fiduciary
capacity, appointed pursuant to section 124.11 of the Revised
Code; (10) Supervisors; (11) Students whose primary purpose is educational
training, including graduate assistants or associates, residents,
interns, or other students working as part-time public employees
less than fifty per cent of the normal year in the employee's
bargaining unit; (12) Employees of county boards of election; (13) Seasonal and casual employees as determined by the
state employment relations board; (14) Part-time faculty members of an institution of higher
education; (15) Employees of the state personnel board of review; (16) Employees of the board of directors of the Ohio low-level radioactive
waste facility development authority created in section 3747.05 of the Revised
Code; (17) Participants
in a work activity,
developmental activity, or alternative work activity under sections 5107.40 to
5107.69
of the
Revised Code who perform a
service for a public employer that the public employer needs but is not
performed by an employee of the public employer
if the participant is
not engaged in paid employment or subsidized employment purusant
pursuant to the
activity; (18) Employees included in the career professional service of the
department of transportation under section 5501.20 of the Revised
Code. (D) "Employee organization" means any labor or bona fide
organization in which public employees participate and that
exists for the purpose, in whole or in part, of dealing with
public employers concerning grievances, labor disputes, wages,
hours, terms, and other conditions of employment. (E) "Exclusive representative" means the employee
organization certified or recognized as an exclusive
representative under section 4117.05 of the Revised Code. (F) "Supervisor" means any individual who has authority,
in the interest of the public employer, to hire, transfer,
suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other public employees; to responsibly direct them; to
adjust their grievances; or to effectively recommend such action,
if the exercise of that authority is not of a merely routine or
clerical nature, but requires the use of independent judgment,
provided that: (1) Employees of school districts who are department
chairpersons or consulting teachers shall not be deemed
supervisors; (2) With respect to members of a police or fire
department, no person shall be deemed a supervisor except the
chief of the department or those individuals who, in the absence
of the chief, are authorized to exercise the authority and
perform the duties of the chief of the department. Where prior
to June 1, 1982, a public employer pursuant to a judicial
decision, rendered in litigation to which the public employer was
a party, has declined to engage in collective bargaining with
members of a police or fire department on the basis that those
members are supervisors, those members of a police or fire
department do not have the rights specified in this chapter for
the purposes of future collective bargaining. The state
employment relations board shall decide all disputes concerning
the application of division (F)(2) of this section. (3) With respect to faculty members of a state institution
of higher education, heads of departments or divisions are
supervisors; however, no other faculty member or group of faculty
members is a supervisor solely because the faculty member or
group of faculty members participate in decisions with respect to
courses, curriculum, personnel, or other matters of academic
policy; (4) No teacher as defined in section 3319.09 of the
Revised Code shall be designated as a supervisor or a management
level employee unless the teacher is employed under a contract governed by
section 3319.01, 3319.011, or 3319.02 of the Revised Code and
is assigned to a position for which a
license deemed to be for administrators under state board rules is
required pursuant to section 3319.22 of the Revised Code. (G) "To bargain collectively" means to perform the mutual
obligation of the public employer, by its representatives, and
the representatives of its employees to negotiate in good faith
at reasonable times and places with respect to wages, hours,
terms, and other conditions of employment and the continuation,
modification, or deletion of an existing provision of a
collective bargaining agreement, with the intention of reaching
an agreement, or to resolve questions arising under the
agreement. "To bargain collectively" includes executing a written contract
incorporating the terms of any agreement reached. The obligation
to bargain collectively does not mean that either party is
compelled to agree to a proposal nor does it require the making
of a concession. (H) "Strike" means continuous concerted action in failing to report
to duty; willful absence from one's position; or stoppage of work in
whole from the full, faithful, and proper performance of the duties of
employment, for the purpose of inducing, influencing, or coercing a change in
wages, hours, terms, and other conditions of employment. "Strike" does not
include a stoppage of work by employees in good faith because of dangerous or
unhealthful working conditions at the place of employment that are abnormal to
the place of employment. (I) "Unauthorized strike" includes, but is not limited to, concerted
action during the term or extended term of a collective bargaining agreement
or during the pendency of the settlement procedures set forth in section
4117.14 of the Revised Code in failing to report to duty; willful absence from
one's position; stoppage of work; slowdown, or abstinence in whole or in part
from the full, faithful, and proper performance of the duties of employment
for the purpose of inducing, influencing, or coercing a change in wages,
hours, terms, and other conditions of employment. "Unauthorized strike"
includes any such action, absence, stoppage, slowdown, or abstinence when done
partially or intermittently, whether during or after the expiration of the
term or extended term of a collective bargaining agreement or during or after
the pendency of the settlement procedures set forth in section 4117.14 of the
Revised Code. (J) "Professional employee" means any employee engaged in
work that is predominantly intellectual, involving the
consistent exercise of discretion and judgment in its performance
and requiring knowledge of an advanced type in a field of science
or learning customarily acquired by a prolonged course in an
institution of higher learning or a hospital, as distinguished
from a general academic education or from an apprenticeship; or
an employee who has completed the courses of specialized
intellectual instruction and is performing related work under the
supervision of a professional person to become qualified as
a professional employee. (K) "Confidential employee" means any employee who works
in the personnel offices of a public employer and deals with
information to be used by the public employer in collective
bargaining; or any employee who works in a close continuing
relationship with public officers or representatives directly
participating in collective bargaining on behalf of the employer. (L) "Management level employee" means an individual who
formulates policy on behalf of the public employer, who
responsibly directs the implementation of policy, or who may
reasonably be required on behalf of the public employer to assist
in the preparation for the conduct of collective negotiations,
administer collectively negotiated agreements, or have a major
role in personnel administration. Assistant superintendents,
principals, and assistant principals whose employment is governed
by section 3319.02 of the Revised Code are management level
employees. With respect to members of a faculty of a state
institution of higher education, no person is a management level
employee because of the person's involvement in the formulation or
implementation of academic or institution policy. (M) "Wages" means hourly rates of pay, salaries, or other
forms of compensation for services rendered. (N) "Member of a police department" means a person who is
in the employ of a police department of a municipal corporation
as a full-time regular police officer as the result of
an appointment from a duly established civil service eligibility
list or under section 737.15 or 737.16 of the Revised Code, a
full-time deputy sheriff appointed under section 311.04 of the
Revised Code, a township constable appointed under section
509.01 of the Revised Code, or a member of a township police
district police department appointed under section 505.49 of the
Revised Code. (O) "Members of the state highway patrol" means highway
patrol troopers and radio operators appointed under section
5503.01 of the Revised Code. (P) "Member of a fire department" means a person who is in
the employ of a fire department of a municipal corporation or a
township as a fire cadet, full-time regular fire fighter, or
promoted rank as the result of an appointment from a duly established civil
service eligibility list or under section 505.38, 709.012, or 737.22 of the
Revised Code. (Q) "Day" means calendar day. Sec. 4981.091. There is hereby created in the state treasury the federal
rail fund. The fund shall consist of
money received
pursuant to section 4981.08 Of the Revised Code and such other money as may be provided by
law. The fund shall be used to acquire,
rehabilitate, or develop rail property or service; to participate in the
acquisition of rail property with the federal government, municipal
corporations, townships, counties, or other governmental agencies; and to
promote, plan, design, construct, operate, and maintain passenger and freight
rail transportation systems. The fund also may be used to pay the
administrative costs of the Ohio rail development commission
associated with conducting any authorized rail program, and for any purpose
authorized by sections 4981.03 and 5501.56 Of the Revised Code. The fund shall not be used
to provide loan guarantees. Investment earnings on moneys credited to the
fund shall be retained by the fund. In acquiring rail property, the Ohio rail development commission
may
obtain acquisition loans from the federal government or from any other
source. Sec. 5501.20. (A) As used in this section: (1) "Career professional service" means that part of the
competitive classified service that consists of employees of the
department of transportation who, regardless of job classification, meet both
of the following qualifications: (a) They are supervisors, professional employees who are not in a
collective bargaining unit, confidential
employees, or management level employees, all as defined in section
4117.01 of the Revised Code. (b) They exercise
authority that is not merely routine or clerical in nature and
report only to a higher level unclassified employee or employee
in the career professional service. (2) "Demoted" means that an employee is placed in a position where the
employee's wage rate equals, or is not more than twenty per cent less than,
the employee's wage rate immediately prior to demotion or where the employee's
job responsibilities are reduced, or both. (3) "Employee in the career professional service with
restoration rights" means an
employee in the career professional service who has been in the
classified civil service for at least two years and who has a cumulative total
of at least ten years of continuous service with the department of
transportation. (B) Not later than the
first day of July of each
odd-numbered year, the director of transportation shall adopt a
rule in accordance with section 111.15 of the Revised Code
that
establishes a business plan for the department of transportation that states
the department's mission, business objectives, and strategies
and that establishes a procedure by which employees in the
career professional service will be held accountable for
their performance. The director shall adopt a rule that establishes a
business plan for the department only once in each two
years. Within sixty days after the effective date
of a rule that establishes a business plan for the department, the director
shall adopt a rule in accordance with
section 111.15 of the Revised Code that identifies specific
positions within the department of transportation that are
included in the career professional service. The director may amend the rule
that identifies the specific positions included in the career professional
service only within sixty days after the
director adopts a rule that establishes a business plan for the department.
Any rule adopted under this division is
subject to review and invalidation by the joint
committee on agency rule
review as provided in division (D) of section
111.15 of the Revised Code. The director shall provide a
copy of
any rule adopted under this division to the director of budget and
management. Except as otherwise provided in this section, an
employee in the career professional service is subject
to the provisions of Chapter 124. of the Revised
Code that
govern employees in the classified civil service. (C) After an employee is appointed to a
position in the career professional service, the employee's direct supervisor
shall provide the
employee appointed to that position with a written performance action plan
that describes the department's expectations for that employee in fulfilling
the mission, business objectives, and strategies stated in the department's
business plan. No sooner than four months after being appointed to a
position in
the career professional service, an employee appointed to that position shall
receive a written performance
review based on the employee's fulfillment of the mission,
business objectives, and strategies stated in the department's
business plan. After the initial performance review, the employee shall
receive a written performance review at least once each year or as often as
the director considers necessary. The department shall give an employee
whose
performance is unsatisfactory an opportunity to improve
performance for a period of at least six months, by means of a
written corrective action plan, before the department takes any
disciplinary action under this section or section 124.34 of the
Revised Code. The department shall base its performance
review forms on its business plan. (D) An employee in the career professional
service may be suspended, demoted, or removed because of
performance that hinders or restricts the fulfillment of the
department's business plan or for disciplinary reasons under section 124.34 or
124.57 of the Revised Code. An employee in the career
professional service may
appeal only the employee's removal to the state personnel board
of review.
An employee in the
career professional service may appeal a demotion or a
suspension of more than three days pursuant to rules the
director adopts in accordance with section 111.15 of the
Revised
Code. (E) An employee in the career professional
service with restoration rights
has restoration rights if demoted because of performance that hinders or
restricts fulfillment of the mission, business objectives, or strategies
stated in the department's business plan, but not
if involuntarily demoted or removed for any of the reasons described in
section 124.34 or for a violation of 124.57 of the Revised
Code.
The director shall demote an employee
who has restoration rights of that nature to a
position in the classified service that in the director's judgment is similar
in nature to the position the employee held
immediately prior to being appointed to the position in the career
professional service. The director shall assign to an employee who is
demoted
to a position in the classified service as provided in this division
a wage rate that equals, or that is not more than twenty per cent less than,
the wage rate assigned to the employee in the career professional service
immediately prior to the employee's demotion. (F) This section establishes a
pilot program for employees in the
career professional service of the department of
transportation. At the end of each fiscal biennium that this program is in
effect, the
director of transportation shall prepare a report describing and
evaluating the operation of the program and forward a copy of
the report to the governor, director of administrative services, speaker
of the house of representatives, and president of the senate. (G) No person shall be appointed to a position in the career
professional service of the Department of Transportation after June
30, 2003, including for the purpose of filling a vacancy within the career
professional service that occurs for any reason. Sec. 5501.31. The director of transportation shall have
general supervision of all roads comprising the state highway
system. He The director may alter, widen, straighten, realign,
relocate,
establish, construct, reconstruct, improve, maintain, repair, and
preserve any road or highway on the state highway system, and, in
connection therewith, relocate, alter, widen, deepen, clean out,
or straighten the channel of any watercourse as he the director
considers
necessary, and purchase or appropriate property for the disposal
of surplus materials or borrow pits, and, where an established
road has been relocated, establish, construct, and maintain such
connecting roads between the old and new location as will provide
reasonable access thereto. The director may purchase or appropriate property necessary
for the location or construction of any culvert, bridge, or
viaduct, or the approaches thereto, including any property needed
to extend, widen, or alter any feeder or outlet road, street, or
way adjacent to or under the bridge or viaduct when the
extension, widening, or alteration of the feeder road, street, or
way is necessary for the full utilization of the bridge or
viaduct, or for any other highway improvement. The director also
may purchase or appropriate, for such length of time as is
necessary and desirable, any additional property required for the
construction and maintenance of slopes, detour roads, sewers,
roadside parks, rest areas, recreational park areas, scenic view
areas, drainage systems, or land to replace wetlands incident to
any highway improvement, that he the director is or may be
authorized to
locate or construct. Title to property purchased or appropriated
by the director shall be taken in the name of the state either in
fee simple or in any lesser estate or interest that the director
considers necessary or proper, in accordance with forms to be
prescribed by the attorney general. The deed shall contain a
description of the property and be recorded in the county where
the property is situated and, when recorded, shall be kept on
file in the department of transportation. Provided that when property, other than property used by a
railroad for operating purposes, is acquired in connection with
improvements involving projects affecting railroads wherein the
department of transportation is obligated to acquire property
under grade separation statutes, or on other improvements wherein
the department is obligated to acquire lands under agreements
with railroads, or with a public utility, political subdivision,
public corporation, or
private corporation owning similar transportation facilities for
the
readjustment or, relocation, or improvement of
their facilities, a fee simple
title or an easement may be acquired by purchase or appropriation
in the name of the railroad, public utility, political
subdivision, public corporation, or private corporation in
the discretion of the director. When
the title to lands, which are required to adjust, relocate, or
improve such facilities
pursuant to agreements with the director, is taken in the name of
the state, the lands may, in the discretion of the
director, may be conveyed in fee simple or the right acquired to
the railroad,
public utility, political subdivision, or
public corporation for which they were acquired. The
conveyance shall be prepared by the attorney general and executed by the
governor and bear the great seal of the state of Ohio. The director, in the maintenance or repair of state
highways, is not limited to the use of the materials with which
the highways, including the bridges and culverts thereon, were
originally constructed, but may use any material which that is
proper
or suitable. The director may aid the any board of county
commissioners in establishing, creating, and repairing suitable
systems of drainage for all highways within the jurisdiction or
control of the board and advise with it as to the establishment,
construction, improvement, maintenance, and repair of the
highways. Chapters 5501., 5503., 5511., 5513., 5515., 5516., 5517.,
5519., 5521., 5523., 5525., 5527., 5528., 5529., 5531., 5533.,
and 5535. of the Revised Code do not prohibit the federal
government, or any individual or corporation, from contributing a
portion of the cost of the establishment, construction,
reconstruction, relocating, widening, resurfacing, maintenance,
and repair of the highways. Except in the case of maintaining, repairing, erecting
traffic signs on, or pavement marking of state highways within
villages, which is mandatory as required by section 5521.01 of
the Revised Code, and except as provided in section 5501.49 of
the Revised Code, no duty of constructing, reconstructing,
widening, resurfacing, maintaining, or repairing state highways
within municipal corporations, or the bridges and culverts
thereon, shall attach to or rest upon the director, but he the
director may
construct, reconstruct, widen, resurface, maintain, and repair
the same with or without the cooperation of any municipal
corporation, or with or without the cooperation of boards of
county commissioners upon each municipal corporation consenting
thereto. Sec. 5513.02. (A) Specifications describing the character
of the articles which it that the department of transportation
is proposed proposing to purchase, and the
conditions governing shipment and delivery, shall be kept on file
at the department of transportation and open to public inspection
throughout the time during which it is required that an invitation to
bidders is required to be posted. The director of transportation
may require bids to be accompanied by a certified check payable
to him the director in an amount fixed by him the
director and stated in the invitation to
bidders. Persons, firms, or corporations desiring to bid on more
than one invitation shall be relieved from furnishing certified
checks with their bids provided they first furnish a bond payable
to the state, in an amount and with surety approved by the
director, conditioned for the faithful performances of all
contracts which that may be awarded to them, and otherwise
conditioned
as the director requires. All bids shall be publicly opened and
read at the time and place mentioned in the notice. All
purchases shall be made by the director from the lowest responsive and
responsible bidder for each item in accordance with section 9.312 of the
Revised Code,
except where the director has established in the bidding
documents a provision for multiple awards for the purchase of
items such as asphalt, aggregates, machinery parts, and others
as the director determines necessary, and
except that in the purchase of
machinery, equipment, or supplies for which fixed and definite
specifications cannot be prepared, the director may purchase the
article articles meeting the general specifications prescribed
and which he the director finds are most suitable for the uses
intended. Sections
5513.01 to 5513.04 of the Revised Code shall apply to the
exchange of machinery and equipment and in force account
operations where the director desires to combine in one order the
furnishing, hauling, and placing of material. The director may
purchase or authorize the purchase without notice, or upon such
notice as he the director prescribes, of materials which
that in his the director's judgment may
be required for the immediate repair of roads or bridges
destroyed or damaged by flood, landslide, or other casualty. No
person shall place separate orders for the purpose of defeating
such sections, and contracts of purchase shall not be valid
unless made in conformity with this section. (B) Division (B) of section 125.11 of the Revised Code
applies to the purchase of products by the director pursuant to
sections 5513.01 to 5513.04 of the Revised Code. Sec. 5515.02. All individuals, firms, and corporations
using or occupying any part of a road or highway on the state
highway system, or the bridges or culverts thereon, with
telegraph or telephone lines, steam, electrical, or industrial
railways, oil, gas, water, or other pipes, mains, conduits, or
any object or structure, other than by virtue of a franchise or
permit granted and in force, shall remove from the bounds of such
the road, highway, bridge, or culvert, their poles and wires
connected therewith, and any tracks, switches, spurs, or oil,
gas, water, or other pipes, mains, conduits, or other objects or
structures, when in the opinion of the director of transportation
they constitute obstructions in such the roads, highways,
bridges, or culverts, or interfere or may interfere with the contemplated
construction, reconstruction, improvement, maintenance, or repair
of such the roads, highways, bridges, or culverts
thereon, or interfere or may interfere with the
their use of such roads, highways,
bridges, or culverts thereon, by the traveling public. All individuals, firms, or corporations so occupying any
road or highway on the state highway system, or the bridges or
culverts thereon, under and by virtue of a franchise or permit
granted and in force, shall relocate their properties and all
parts thereof within the bounds of such the road, highway,
bridge, or culvert when in the opinion of the director they constitute
obstructions in any such the road, highway, bridge, or culvert,
or interfere with or may interfere with the contemplated
construction, reconstruction, improvement, maintenance, or repair
of such the road, highway, bridge, or culvert, or
interfere with or
may interfere with the its use of such road, highway,
bridge, or
culvert, which. The relocation within the bounds of
such the road,
highway, bridge, or culvert shall be in the manner and to the
extent prescribed by the director. If, in the opinion of the director, such individuals,
firms, or corporations have obstructed any road or highway on the
state highway system, or the bridges or culverts thereon, or if
any of their properties, in his the director's opinion, are so
located that they
do or may interfere with the contemplated construction,
reconstruction, improvement, maintenance, or repair of such the
road,
highway, bridge, or culvert, or if, in his opinion, they interfere with or
may interfere with the use of such the road,
highway, bridge, or culvert by the traveling public, said the
director shall notify such individual, firm, or corporation
directing the removal of such the obstruction or properties, or
the relocation of such the properties, and, if such individual,
firm, or
corporation does not within five days from the service of such
the notice proceed to remove or relocate the same obstruction
or properties and complete the removal or relocation within a reasonable
time, the director may
remove or relocate the same by employing the necessary labor,
tools, and equipment. The costs and expenses shall, in the first
instance, be paid by the director out of any appropriation of the
department of transportation available for the establishment,
construction, reconstruction, improvement, maintenance, or repair
of highways, and the amount thereof shall be certified to the
attorney general for collection by civil action. Said notice Notice
of the action shall be served by the sheriff in the manner as summons
in civil actions made by personal service or by certified mail. Sec. 5516.02. No advertising device shall be erected or
maintained within six hundred sixty
feet of the edge of the right-of-way of a highway on the
interstate system
except the
following: (A) Directional and official signs
and notices that
conform to rules adopted by the
director of transportation; (B) Signs advertising the sale or lease of the property
upon which they are located; (C) Advertising devices indicating the name of the
business or profession conducted on such property or that
identify the goods produced, sold, or services rendered on such
property, and that conform to rules adopted by the director; (D) Advertising devices that are located in commercial or
industrial zones traversed by segments of the interstate system
within the boundaries of a municipal
corporation as such
boundaries existed on September 21, 1959, and that conform
to
rules adopted by the director; (E) Advertising devices that are located on the premises of a
professional sports facility and that conform to rules adopted by the
director. Sec. 5516.05. The director of transportation may designate any portion of
the interstate system, national highway system, or primary system as a scenic
byway. The director shall exclude from designation as a scenic byway any
segment of a highway in a zoned or unzoned commercial or industrial area that
is determined by the director to be inconsistent with the designation of a
scenic byway. No advertising device may be erected upon a designated scenic byway, except
in accordance with division (A), (B), or (C) of
section 5516.02 Of the Revised Code, division (A), (B), (C),
(D), (E), or (G) of section 5516.06 Of the Revised Code, or
division (A), (B), (C), or (D) of section
5516.061 Of the Revised Code. Any advertising device lawfully in existence prior to the
designation of a scenic byway, upon such designation, is a nonconforming
advertising device under section 5516.07 Of the Revised Code. Sec. 5516.06. No advertising device shall be erected
or maintained within six hundred sixty feet of the edge of the right-of-way of
a highway on the primary system except the following: (A) Directional and other official signs and notices
that conform to rules adopted
by the director of transportation; (B) Signs advertising the sale or lease of the property
upon which they are located; (C) Advertising devices indicating the name of the
business, activities, or profession conducted on such property or
that identify the goods produced, sold, or services rendered on
such property and that conform to rules adopted by the director; (D) Precautionary signs relating to the premises; (E) Signs, displays, or devices which locate, identify,
mark, or warn of the presence of pipe lines, utility lines, or
rail lines, and appurtenances thereof, including, but not limited
to, markers used in the maintenance, operation, observation, and
safety of said lines; (F) Advertising devices located in zoned or unzoned
industrial or commercial areas adjacent to highways on the
primary system that conform to rules adopted by the director; (G) Signs lawfully in existence on October 22, 1965, that
the director, subject to the approval of the secretary of the
United States department of transportation, has determined to be
landmark signs, including signs on farm structures or natural
surfaces, which are of historic or artistic significance; (H) Advertising devices that are located on the premises of a
professional sports facility and that conform to rules adopted by the
director. Sec. 5521.01. The director of transportation, upon the
request by and the approval of the legislative authority of a
village, shall maintain, repair, and apply standard longitudinal
pavement marking lines as the director considers appropriate,
or may
establish, construct, reconstruct, improve, or widen any section
of a state highway within the limits of a village. The director
also may erect regulatory and warning signs, as defined in the
manual adopted under section 4511.09 of the Revised Code, on any
section of a state highway within the limits of a village. The
director may establish, construct, reconstruct, improve, widen,
maintain, or repair any section of state highway within the
limits of a city, including the elimination of railway grade
crossings, and pay the entire or any part of the cost and expense
thereof from state funds, but in all cases the director
first shall obtain the consent of the legislative authority of the
municipal corporation, except that the director need not
obtain the
consent of the municipal corporation if the existing highway being changed or
the location of an additional highway being established was not
within the corporate limits of the municipal corporation at the
time the director determines the establishment or change should be
made, or if the director is
acting pursuant to section 5501.49 of the
Revised Code. Except as provided in section 5501.49 of the Revised Code,
when in the opinion of the director there is urgent need to
establish a state highway, which is to be designated a federal
aid highway, or a federal aid interstate highway within a
municipal corporation or, in the opinion of the director, any
federal aid highway or interstate federal aid highway is in
urgent need of repair, reconstruction, widening, improvement, or
relocation, so as to accommodate the traveling public, the
director shall submit a written request to the legislative
authority of the municipal corporation for its consent to the
desired establishment or improvement. The legislative authority, within sixty
days after such the written request has been
received from the director, shall either shall grant its consent
to the establishment or improvement or refuse consent by filing in
writing with the director a statement of its reasons for refusing
consent and any alternate proposals it considers reasonable. If
the legislative authority fails to act or refuses consent, the
director, upon consideration of the reasons for
rejection, may make a resolution declaring the necessity of the
establishment or improvement, and then
proceed in the same manner as if consent had been given. A
certified copy of the resolution shall be served upon the
municipal legislative authority, which, within twenty days
from the date of service, may appeal to the court of common pleas of
the county in which the municipal corporation is situated, upon
the reasonableness and necessity of the action provided for in
the resolution. In the hearing upon appeal, the director shall
introduce the record of the director's proceedings,
including the director's findings
with respect to factors referred to in section 5521.011 of the
Revised Code, and such other competent evidence as the
director desires in support of the director's
resolution, and the municipality likewise may introduce
competent evidence opposing the resolution, and
findings. The court may affirm or revoke the resolution. The
decision of the common pleas court may be appealed to the court
of appeals and the supreme court as in other cases. If the court
affirms the resolution, the director may proceed with the
establishment or improvement with or without the cooperation of
the municipal corporation. Any such municipal corporation may
cooperate with the director in the work and pay such portion of
the cost as is agreed upon between the municipal corporation and
the director. The legislative authority of any municipal
corporation desiring to cooperate, by resolution, may propose
such cooperation to the director, and a copy of the resolution,
which shall set forth the proportion of the cost and expense to
be contributed by the municipal corporation, shall be filed with
the director. The director shall cause to be prepared the
necessary surveys, plans, profiles, cross sections, estimates,
and specifications and shall
file copies of them with the legislative authority of the municipal
corporation. After
the legislative authority has approved the surveys, plans,
profiles, cross sections, estimates, and specifications, and
after the municipal corporation has provided the funds necessary
to meet the portion of the cost of the work assumed by it, the
municipal corporation shall enter into a contract with the state
providing for payment by the municipal corporation of the agreed
portion of the cost. The form of the contract shall be
prescribed by the attorney general, and all such contracts shall
be submitted to the attorney general director and approved by
the attorney general before the director advertises
advertising for bids. Section 5705.41 of the
Revised Code applies to such contract to be made by the municipal
corporation, and a duplicate of the certificate of the chief
fiscal officer of the municipal corporation shall be filed in the
office of the director. That part of the cost of the work
assumed by the municipal corporation shall be paid from the
proceeds of taxes or special assessments, or both, or from the
proceeds of notes or bonds issued and sold in anticipation of the
collection of such the taxes and assessments. For the purpose
of providing funds for the payment of that part of the cost of the
work assumed by the municipal corporation, the municipal
corporation has the same authority to make special assessments,
levy taxes, and issue bonds or notes, in anticipation of the
collection of the same, as it has with respect to improvements
constructed under the sole supervision and control of the
municipal corporation. All such assessments shall be made, taxes
levied, and bonds or notes issued and sold under such conditions
and restrictions as may be provided with respect to assessments,
taxes, bonds, or notes made, levied, issued, or sold in
connection with improvements of the same class and character
constructed under the sole supervision and control of the
municipal corporation. The improvement shall be constructed
under the sole supervision of the director. The proportion of
the cost and expense payable by the municipal corporation shall
be paid by the proper officers thereof, upon the requisition of
the director, and at times during the progress of the work as may
be determined by the director or as may be otherwise
provided by law. Sec. 5525.19. Payment for the cost of the establishment,
construction, reconstruction, improvement, maintenance, and
repair of a highway under Chapters 5501., 5503., 5511., 5513.,
5515., 5516., 5517., 5519., 5521., 5523., 5525., 5527., 5528.,
5529., 5531., 5533., and 5535. of the Revised Code shall be made
at intervals of not more less than one once a
month as the work progresses, upon estimates made by the district deputy
director of
transportation in charge of such the improvement and upon
approval of
the director of transportation. Except as provided in this
section, no payment by the state on account of a contract for any
improvement under such chapters shall, before the completion of
the contract, exceed ninety-two per cent of the value of the work
performed to the date of such payment, and eight per cent of the
value of work performed shall be held until the final completion
of the contract in accordance with the plans and specifications.
In addition to the above payments on account of work performed,
the director may allow and pay to a contractor a sum not
exceeding ninety-two per cent of the value of material delivered
on the site of the work, or in the vicinity thereof, but not yet
incorporated therein, provided such material has been inspected
and found to meet the specifications. When an estimate is
allowed on account of material delivered on the site of the work
or in the vicinity thereof, but not yet incorporated therein,
such the material shall become the property of the state, but if
such the material is stolen, destroyed, or damaged by casualty
before
being used, or for any reason becomes unfit for use, the
contractor shall replace the material at his the contractor's
own expense. When
the retained percentage, plus the difference between the contract
price and the estimates allowed, exceeds by more than eight per
cent the estimated cost of completing the work, as determined by
the director, he may pay the contractor all or any
part of the
excess sum, retaining not less than the estimated cost of
completing the work, as determined by the director, plus eight
per cent. When a portion of a highway covered by a contract is
completed and opened to traffic, all retained percentages held in
connection with such highway shall be released and paid to the
contractor. In addition to the estimates provided for by law, the
director may, under such conditions as he the director
prescribes, may allow and
pay to a contractor a sum not exceeding ninety-two per cent of
the value of the material delivered by such the
contractor and safely stored at a railroad station, or siding, or other
point in the vicinity of the work an approved site. When such
estimate is allowed, the
material on which it is allowed shall become the property of the
state, but in case such the material is stolen, destroyed, or
damaged by casualty before being used, or for any reason becomes unfit
for use, the contractor shall replace the material at his the
contractor's
expense. A contractor may insure against loss or damage by fire
or otherwise all materials on which estimates have been allowed. Sec. 5533.48. That portion of the highway known as United
States route number two hundred twenty-four, running in a westerly to
easterly direction, commencing at the junction with state route two hundred
forty-one in Summit county and extending to state route ninety-one
shall be known as the "Cliff Skeen Memorial
Highway." The director of transportation may erect suitable markers upon the highways
indicating its name. SECTION 2 . That existing sections 124.34, 124.57, 4117.01, 5501.31, 5513.02,
5515.02, 5516.02, 5516.06,
5521.01, and 5525.19 and section 5501.19 of the Revised Code are
hereby repealed.
SECTION 3 .
That Section 7.04 of Am. Sub. H.B. 210 of the
122nd General Assembly, as amended by Am. Sub. S.B. 230 of the 122nd General
Assembly, be amended to read as follows:
SECTION 7.04 OF AM. SUB. H.B. 210/122nd GAAS AMENDED BY AM. SUB. S.B. 230/122nd GA"Sec. 7.04. Transfer of Appropriations - Planning and
Research, Highway Construction, Maintenance and Administration The Director of Budget and Management may approve requests from
the Department of Transportation, for transfer of funds among the
appropriations for highway planning and research (line items
771-411 and 771-412), highway construction (line items 772-421,
772-422, and 772-424), highway maintenance (line item
773-431),
and highway administration (line item 779-491).
Transfers between appropriation
items shall be made upon the
written request of the Director of Transportation with the
approval of the Director of Budget and Management. Such
transfers shall be reported to the Controlling Board at the next
regularly scheduled meeting of the board. This transfer language is intended to provide for emergency
situations and flexibility to meet unforeseen conditions that
could arise during the budget period. This will also allow the
Department to optimize the use of available resources, and adjust
to circumstances affecting the obligation and expenditure of
federal funds. Transfer of Appropriations - State Infrastructure Bank The Director of Budget and Management may approve requests from the Department
of Transportation for transfer of funds among the appropriations and
cash of the
Infrastructure Bank funds created in section 5531.09 of the Revised Code,
including transfers between fiscal years 1998 and 1999. Such transfers shall
be reported to the Controlling Board at the next regularly scheduled meeting
of the board. However, the Director may not make transfers out of debt
service and lease payment line items unless the Director determines that the
appropriated amounts exceed the actual and projected debt, rental, or lease
payments. The Director of Budget and Management may approve requests from the Department
of Transportation for transfer of funds from appropriations and
cash of the Highway
Operating Fund (Fund 002) to appropriations of the Infrastructure Bank funds
created in section 5531.09 of the Revised Code.
The Director of Budget and Management may
transfer from the Infrastructure Bank funds to the
Highway Operating Fund up to the amounts originally
transferred to the Infrastructure Bank funds under this
section. Such transfers shall be
reported to the Controlling Board at the next regularly scheduled meeting of
the board. However, the Director may not make transfers
between modes and transfers between different funding
sources. Cash Transfer Between Funds - Aviation Infrastructure Bank - State The Director of Budget and Management shall
transfer, from Fund 212 to Fund 213 within the
Highway Operating Fund Group, $204,584
that was received from the proceeds of the sale of the Fiala
Center in Portage County. Of the foregoing appropriation item 777-477, Aviation
Infrastructure Bank - State, $204,584 shall be
distributed by the Department of Transportation to the
Zanesville Municipal Airport and the
Akron-Fulton International Airport in
accordance with Section 115 of Am. Sub.
H.B. 215 of the 122nd General
Assembly, as amended by this act Am. Sub.
S.B. 230 of the 122nd General
Assembly. Of the $204,584 in proceeds from the sale of the Fiala
Center within appropriation item 777-477, Aviation
Infrastructure Bank - State, any unencumbered and
unallotted fiscal year 1998 amounts shall be transferred by the
Director of Budget and Management to appropriation
item 777-477, Aviation Infrastructure Bank -
State, in fiscal year 1999. Those amounts so transferred from fiscal
year 1998 to fiscal year 1999 are hereby appropriated. Transfer of Appropriations - Public Transportation The Director of Budget and Management may approve requests from the Department
of Transportation for transfer of funds between appropriation item 775-451,
Public Transportation - State, and 775-456, Public Transportation -
Discretionary Capital. Increase Appropriation Authority - State Funds In the event that revenues or unexpended balances, credited to
the Highway Operating Fund, exceed the estimates upon which the
appropriations have been made in
Am. Sub. H.B. 210 of the 122nd General Assembly, the Director of
Transportation may submit a request to the Controlling Board for
increased appropriation authority in the same manner as
prescribed in
section 131.35 of the Revised Code. Such additional revenues or
unexpended balances are hereby appropriated to the Department of
Transportation when authorized by the Controlling Board. Increase Appropriation Authority - Federal and Local
Funds In the event that receipts or unexpended balances credited to
the Highway Operating Fund, or apportionments or allocations made
available from the federal and local government exceed the
estimates
upon which the appropriations have been made in
Am. Sub. H.B. 210 of the 122nd General Assembly, such excess
is hereby appropriated and may be added to the appropriate item or
items when requested by the Director of Transportation and approved
by the Director of Budget and Management and the Controlling Board. Reappropriations All appropriations of the Highway Operating Fund (Fund 002) and,
the Highway
Capital Improvement Fund (Fund 042), and the Infrastructure
Bank funds created in section 5531.09 Of the Revised Code remaining unencumbered
on June 30, 1997,
and the
unexpended balance of prior years' appropriations that
subsequently become unencumbered after June 30, 1997, subject to
the
availability of revenue as determined by the Director of
Transportation, are hereby reappropriated for the same purpose in
fiscal year 1998 upon the request of the Director of
Transportation
with the approval of the Director of Budget and Management. Such
reappropriations shall be reported to the Controlling Board at
the next regularly scheduled meeting of the board. All appropriations of the Highway Operating Fund (Fund 002) and,
the Highway
Capital Improvement Fund (Fund 042), and the Infrastructure
Bank funds created in section 5531.09 Of the Revised Code in
Am. Sub.
H.B. 210 of the 122nd General
Assembly
remaining unencumbered as of
June 30, 1998, are reappropriated for use during fiscal year 1999
for the same purpose. The department shall report all such
reappropriations
to the Controlling Board." SECTION 4 . That existing Section 7.04 of Am. Sub. H.B. 210 of the 122nd
General Assembly, as amended by Am. Sub. S.B. 230 of the 122nd General
Assembly, is hereby repealed.
SECTION 5 .
Notwithstanding the limitation in division (B) of section 5501.20
of the Revised Code that the Director of Transportation adopt a rule
establishing a business plan for the Department of Transportation only once in
each two years, at the earliest time permitted by law after the effective date
of this act, the Director shall adopt the rules specified in division (B) of
section 5501.20 of the Revised Code. The rules adopted under this section
shall be in effect until succeeding rules are adopted under section 5501.20 of
the Revised Code.
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