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Sub. S. B. No. 19 As Reported by the House Judiciary CommitteeAs Reported by the House Judiciary Committee
126th General Assembly | Regular Session | 2005-2006 |
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Senators Schuler, Wachtmann, Mumper, Clancy, Hagan, Goodman, Austria, Roberts, Padgett, Niehaus
Representative Willamowski
A BILL
To amend sections 2317.02 and 4117.14 of the Revised Code to make the testimonial privilege against disclosure of certain communications applicable to critical incident stress management (CISM) team members, to create a testimonial privilege between employee-assistance program personnel and program clients, and to reenact the provision of law designating the Controlling Board as the legislative body authorized to reject recommendations of a fact-finding panel.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2317.02 and 4117.14 of the Revised Code be amended to read as follows:
Sec. 2317.02. The following persons shall not testify in
certain respects: (A) An attorney, concerning a communication made to the
attorney by a client in that relation or the
attorney's advice to
a client, except
that the attorney may testify by express consent
of the client
or, if the client is deceased, by the express
consent of the
surviving spouse or the executor or administrator
of the estate
of the deceased client and except that, if the
client voluntarily
testifies or is deemed by section 2151.421 of
the Revised Code to
have waived any testimonial privilege under
this division, the
attorney may be compelled to testify on the
same subject; (B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or
the
physician's or dentist's advice to a
patient, except as
otherwise provided in this division, division (B)(2), and
division
(B)(3) of this section, and except that, if the patient
is deemed
by section 2151.421 of the Revised Code to have waived
any
testimonial privilege under this division, the physician may
be
compelled to testify on the same subject. The testimonial privilege established under this division
does not
apply, and a physician or dentist may testify or may be
compelled
to testify, in any of the following circumstances: (a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123.
of
the Revised Code, under any of the following circumstances: (i) If the patient or the guardian or other legal
representative of the patient gives express consent; (ii) If the patient is deceased, the spouse of the patient
or the executor or administrator of the patient's estate
gives
express consent; (iii) If a medical claim, dental claim, chiropractic
claim,
or optometric claim, as defined in section 2305.113 of the
Revised
Code, an action for wrongful death, any other type of
civil
action, or a claim under Chapter 4123. of the Revised Code
is
filed by the patient, the personal representative of the
estate of
the patient if deceased, or the patient's guardian
or other legal
representative. (b) In any civil action concerning court-ordered treatment
or services
received by a patient, if the court-ordered treatment
or services were ordered
as part of a case plan journalized under
section 2151.412 of the Revised Code or the
court-ordered
treatment or services are necessary or relevant to dependency,
neglect, or abuse or temporary or permanent custody proceedings
under
Chapter 2151. of the Revised Code. (c) In any criminal action concerning any test or the
results of any test that determines the presence or concentration
of alcohol,
a drug of abuse, or alcohol and a drug of abuse in the
patient's
blood, breath, urine, or other bodily substance at any
time
relevant to the criminal offense in question. (d) In any criminal action against a physician
or dentist.
In such an action, the testimonial privilege
established under
this division does not prohibit the admission
into evidence, in
accordance with the
Rules of
Evidence, of a patient's
medical or
dental records or other communications between a
patient and the
physician or dentist that are related to the
action and obtained
by subpoena, search warrant, or other lawful
means. A court that
permits or compels a physician or dentist
to testify in such an
action or permits the introduction into
evidence of patient
records or other communications in such an
action shall require
that appropriate measures be taken to
ensure that the
confidentiality of any patient named or
otherwise identified in
the records is maintained. Measures to
ensure confidentiality
that may be taken by the court include
sealing its records or
deleting specific information from its
records. (e) In any will contest action under sections 2107.71 to
2107.77 of the Revised Code if all of the following apply: (i) The patient is deceased. (ii) A party to the will contest action requests the
testimony, demonstrates to the court that that
party would be an heir
of the patient if the patient died without
a will, is a
beneficiary under the will that is the subject of the
will contest
action, or is a beneficiary under another
testamentary document
allegedly executed by the patient, and demonstrates to the court
that the testimony is necessary to establish the party's rights as
described in this division. (2)(a) If any law enforcement officer submits a written
statement to a health
care provider that states that an official
criminal investigation has begun
regarding a specified person or
that a criminal action or proceeding has been
commenced against a
specified person, that requests the provider to supply to
the
officer copies of any records the provider possesses that pertain
to any
test or the results of any test administered to the
specified person to
determine the presence or concentration of
alcohol, a drug of abuse, or alcohol
and a drug of abuse in the
person's blood, breath, or urine at any time
relevant to the
criminal offense in question, and that conforms to section
2317.022 of the Revised Code, the provider, except to the extent
specifically
prohibited by any law of this state or of the United
States, shall supply to
the officer a copy of any of the requested
records the provider possesses. If
the health care provider does
not possess any of the requested records, the
provider shall give
the officer a written statement that indicates that the
provider
does not possess any of the requested records. (b) If a health care provider possesses any records of the
type described in
division (B)(2)(a) of this section regarding the
person in question at any
time relevant to the criminal offense in
question, in lieu of personally
testifying as to the results of
the test in question, the custodian of the
records may submit a
certified copy of the records, and, upon its submission,
the
certified copy is qualified as authentic evidence and may be
admitted as
evidence in accordance with the Rules of Evidence.
Division (A) of section
2317.422 of the Revised Code does not
apply to any certified copy of records
submitted in accordance
with this division. Nothing in this division shall be
construed
to limit the right of any party to call as a witness the person
who
administered the test to which the records pertain, the person
under whose
supervision the test was administered, the custodian
of the records, the
person who made the records, or the person
under whose supervision the records
were made. (3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the
physician's or
dentist's advice to the
patient in question, that
related causally or historically to
physical or mental injuries
that are relevant to issues in the
medical claim, dental claim,
chiropractic claim, or optometric
claim, action for wrongful
death, other civil action, or claim
under Chapter 4123. of the
Revised Code. (b) If the testimonial privilege described in division
(B)(1) of this section
does not apply to a physician or dentist as
provided in division
(B)(1)(c) of
this section, the physician or
dentist, in lieu of personally testifying as to
the results of the
test in question, may submit a certified copy of those
results,
and, upon its submission, the certified copy is qualified as
authentic
evidence and may be admitted as evidence in accordance
with the Rules of
Evidence. Division (A) of section 2317.422 of
the Revised Code does not apply
to any certified copy of results
submitted in accordance with this division.
Nothing in this
division shall be construed to limit the right of any party to
call as a witness the person who administered the test in
question, the person
under whose supervision the test was
administered, the custodian of the
results
of the test, the person
who compiled the results, or the person under whose
supervision
the results were compiled. (c) If the testimonial privilege described in division (B)(1)
of this section does not apply as provided in division (B)(1)(e)
of this section, a physician or dentist may be compelled to
testify or to submit to discovery in the will contest action under
sections 2107.71 to 2107.77 of the Revised Code only as to the
patient in question on issues relevant to the competency of the
patient at the time of the execution of the will. Testimony or
discovery conducted pursuant to this division shall be conducted
in accordance with the Rules of Civil Procedure. (4) The testimonial privilege
described in division (B)(1)
of this section is not waived when a
communication is made by a
physician to a pharmacist or when there
is communication between a
patient and a pharmacist in furtherance
of the physician-patient
relation. (5)(a) As used in divisions (B)(1) to (4) of this
section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to
diagnose,
treat, prescribe, or act for a patient. A
"communication" may
include, but is not limited to, any medical
or dental, office, or
hospital communication such as a record,
chart, letter,
memorandum, laboratory test and results, x-ray,
photograph,
financial statement, diagnosis, or prognosis. (b) As used in division (B)(2) of this section,
"health care
provider"
means a hospital, ambulatory care facility, long-term
care facility, pharmacy, emergency facility, or health care
practitioner. (c) As used in division (B)(5)(b) of this section: (i)
"Ambulatory care facility" means a facility that
provides
medical, diagnostic, or surgical treatment to patients
who do not
require hospitalization, including a dialysis center,
ambulatory
surgical facility, cardiac catheterization facility,
diagnostic
imaging center, extracorporeal shock wave lithotripsy
center, home
health agency, inpatient hospice, birthing center,
radiation
therapy center, emergency facility, and an urgent care
center.
"Ambulatory health care facility" does not include the
private
office of a physician or dentist, whether the office is
for an
individual or group practice. (ii)
"Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(iii)
"Health care practitioner" has the same meaning as in
section 4769.01 of the Revised Code. (iv)
"Hospital" has the same meaning as in section 3727.01
of
the Revised Code. (v)
"Long-term care facility" means a nursing home,
residential care facility, or home
for the aging,
as those terms
are defined in section 3721.01 of the Revised Code; an adult care
facility, as defined in section 3722.01
of the Revised Code; a
nursing facility or intermediate care facility for the mentally
retarded, as those terms are defined in section 5111.20 of the
Revised Code; a facility or portion of a facility certified as a
skilled nursing facility under Title XVIII of the
"Social
Security
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.
(vi)
"Pharmacy" has the same meaning as in section 4729.01
of
the Revised Code. (6) Divisions (B)(1), (2), (3), (4),
and (5) of this section
apply
to doctors of medicine, doctors of osteopathic medicine,
doctors
of podiatry, and dentists. (7) Nothing in divisions (B)(1) to (6)
of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section 307.628 or 2305.33 of the
Revised Code
upon physicians who report an employee's use of a
drug of abuse,
or a condition of an employee other than one
involving the use of
a drug of abuse, to the employer of the
employee in accordance
with division (B) of that section. As used
in division
(B)(7) of this section,
"employee,"
"employer," and
"physician" have the same meanings as
in section 2305.33 of the
Revised Code. (C) A member of the clergy, rabbi, priest, or regularly
ordained,
accredited, or licensed minister of an established and
legally
cognizable church, denomination, or sect, when the member
of
the clergy,
rabbi, priest, or minister remains accountable to
the authority
of that church, denomination, or sect, concerning a
confession
made, or any information confidentially communicated,
to the
member of the clergy, rabbi, priest, or minister for
a
religious counseling purpose in the
member of the clergy's,
rabbi's,
priest's, or minister's professional character;
however,
the member of the clergy, rabbi, priest, or
minister
may testify
by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust; (D) Husband or wife, concerning any communication made by
one to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or
act
done, in the known presence or hearing of a third person
competent
to be a witness; and such rule is the same if the
marital relation
has ceased to exist; (E) A person who assigns a claim or interest, concerning
any
matter in respect to which the person would not, if a
party, be
permitted to testify; (F) A person who, if a party, would be restricted
under
section 2317.03 of the Revised Code, when the
property or thing is
sold or transferred by an executor,
administrator, guardian,
trustee, heir, devisee, or legatee,
shall be restricted in the
same manner in any action or
proceeding concerning the property or
thing. (G)(1) A school guidance counselor who holds a valid
educator license from the state board of education as
provided for
in section 3319.22 of the Revised Code, a person
licensed under
Chapter 4757. of the Revised Code
as a professional clinical
counselor, professional counselor,
social worker, independent
social worker, marriage and family therapist or independent marriage and family therapist, or registered under Chapter 4757. of the Revised
Code as a
social work assistant concerning a confidential
communication received from a
client in that relation or
the
person's advice to a client unless any of
the following applies: (a) The communication or advice indicates clear and
present
danger to the client or other persons. For the purposes
of this
division, cases in which there are indications of present
or past
child abuse or neglect of the client constitute a clear
and
present danger. (b) The client gives express consent to the testimony. (c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent. (d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may
be compelled to testify on
the same subject. (e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client, marriage and family therapist-client,
or social worker-client relationship. (f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules
after
an in-camera inspection that the testimony of the school
guidance
counselor is relevant to that action. (g) The testimony is sought in a civil action and concerns
court-ordered treatment or services received by a patient as part
of a case
plan journalized under section 2151.412 of the Revised
Code or the court-ordered treatment or
services are necessary or
relevant to dependency, neglect, or abuse or
temporary or
permanent custody proceedings under
Chapter 2151.
of the
Revised
Code. (2) Nothing in division (G)(1) of this section shall
relieve
a
school guidance counselor or a person licensed or registered
under Chapter
4757. of the Revised Code
from the requirement to
report information concerning
child abuse or neglect under section
2151.421 of the Revised Code. (H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse,
child
neglect, or dependent child action or proceeding, that is
brought
by or against either parent who takes part in mediation
in
accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of parenting time rights in relation to their children; (I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service
pursuant to section 4931.35 of
the Revised Code or Title II of
the
"Communications Act of 1934,"
104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication
made through a telecommunications
relay service.
Nothing in this
section shall limit the obligation of a
communications assistant
to divulge information or testify when mandated by
federal law or
regulation or pursuant to subpoena in a criminal proceeding. Nothing in this section shall limit any immunity or
privilege
granted under federal law or regulation. (J)(1) A chiropractor in a civil proceeding concerning a
communication made to the chiropractor by a patient in that
relation or the
chiropractor's advice to a patient, except as
otherwise provided in this
division. The testimonial privilege
established under this division does not
apply, and a chiropractor
may testify or may be compelled
to testify, in any civil action,
in accordance with the discovery
provisions of the Rules of Civil
Procedure in
connection with a
civil action, or in connection with
a claim under Chapter 4123.
of the Revised Code, under any of the
following
circumstances: (a) If the patient or the guardian or other legal
representative of the patient gives express consent. (b) If the patient is deceased, the spouse of the patient
or
the executor or administrator of the patient's estate
gives
express consent. (c) If a medical claim, dental claim, chiropractic
claim, or
optometric claim, as defined in section 2305.113 of the
Revised
Code, an action for wrongful death, any other type
of
civil
action, or a claim under Chapter 4123. of the Revised
Code
is
filed by the patient, the personal representative of the
estate of
the patient if deceased, or the patient's guardian
or other legal
representative. (2) If the testimonial privilege described in division
(J)(1) of this section does not apply as provided in division
(J)(1)(c) of this section, a chiropractor may be
compelled to
testify or to submit to discovery under the Rules of
Civil
Procedure only as to a communication made to the
chiropractor by
the patient in question in that relation, or the
chiropractor's
advice to the
patient in question, that related causally or
historically to
physical or mental injuries that are relevant to
issues in the
medical claim, dental claim, chiropractic claim, or
optometric
claim, action for wrongful death, other civil action,
or claim
under Chapter 4123. of the Revised Code. (3) The testimonial privilege established under this
division does not
apply, and a chiropractor may testify or be
compelled to testify, in any
criminal action or administrative
proceeding. (4) As used in this division,
"communication" means
acquiring,
recording, or transmitting any information, in any
manner, concerning
any facts, opinions, or statements necessary to
enable a chiropractor to
diagnose, treat, or act for a
patient.
A
communication may
include, but is not limited to, any
chiropractic, office, or
hospital communication such as a record,
chart, letter,
memorandum, laboratory test and results, x-ray,
photograph,
financial statement, diagnosis, or prognosis.
(K)(1) Except as provided under division (K)(2) of this section, a critical incident stress management team member concerning a communication received from an individual who receives crisis response services from the team member, or the team member's advice to the individual, during a debriefing session.
(2) The testimonial privilege established under division (K)(1) of this section does not apply if any of the following are true:
(a) The communication or advice indicates clear and present danger to the individual who receives crisis response services or to other persons. For purposes of this division, cases in which there are indications of present or past child abuse or neglect of the individual constitute a clear and present danger.
(b) The individual who received crisis response services gives express consent to the testimony. (c) If the individual who received crisis response services is deceased, the surviving spouse or the executor or administrator of the estate of the deceased individual gives express consent.
(d) The individual who received crisis response services voluntarily testifies, in which case the team member may be compelled to testify on the same subject.
(e) The court in camera determines that the information communicated by the individual who received crisis response services is not germane to the relationship between the individual and the team member. (f) The communication or advice pertains or is related to any criminal act. (3) As used in division (K) of this section: (a) "Crisis response services" means consultation, risk assessment, referral, and on-site crisis intervention services provided by a critical incident stress management team to individuals affected by crisis or disaster. (b) "Critical incident stress management team member" or "team member" means an individual specially trained to provide crisis response services as a member of an organized community or local crisis response team that holds membership in the Ohio critical incident stress management network. (c) "Debriefing session" means a session at which crisis response services are rendered by a critical incident stress management team member during or after a crisis or disaster. (L)(1) Subject to division (L)(2) of this section and except
as provided in division (L)(3) of this section, an employee
assistance professional, concerning a communication made to the
employee assistance professional by a client in the employee
assistance professional's official capacity as an employee
assistance professional.
(2) Division (L)(1) of this section applies to an employee
assistance professional who meets either or both of the following
requirements:
(a) Is certified by the employee assistance certification
commission to engage in the employee assistance profession;
(b) Has education, training, and experience in all of the
following:
(i) Providing workplace-based services designed to address
employer and employee productivity issues;
(ii) Providing assistance to employees and employees'
dependents in identifying and finding the means to resolve
personal problems that affect the employees or the employees'
performance; (iii) Identifying and resolving productivity problems
associated with an employee's concerns about any of the following
matters: health, marriage, family, finances, substance abuse or
other addiction, workplace, law, and emotional issues; (iv) Selecting and evaluating available community resources;
(v) Making appropriate referrals;
(vi) Local and national employee assistance agreements;
(vii) Client confidentiality.
(3) Division (L)(1) of this section does not apply to any
of the following:
(a) A criminal action or proceeding involving an offense
under sections 2903.01 to 2903.06 of the Revised Code if the
employee assistance professional's disclosure or testimony relates
directly to the facts or immediate circumstances of the offense;
(b) A communication made by a client to an employee
assistance professional that reveals the contemplation or
commission of a crime or serious, harmful act;
(c) A communication that is made by a client who is an
unemancipated minor or an adult adjudicated to be incompetent and
indicates that the client was the victim of a crime or abuse; (d) A civil proceeding to determine an individual's mental
competency or a criminal action in which a plea of not guilty by
reason of insanity is entered;
(e) A civil or criminal malpractice action brought against
the employee assistance professional;
(f) When the employee assistance professional has the
express consent of the client or, if the client is deceased or
disabled, the client's legal representative;
(g) When the testimonial privilege otherwise provided by
division (L)(1) of this section is abrogated under law.
Sec. 4117.14. (A) The procedures contained in this
section
govern the settlement of disputes between an exclusive
representative and a public employer concerning the termination
or
modification of an existing collective bargaining agreement or
negotiation of a successor agreement, or the negotiation of an
initial collective bargaining agreement. (B)(1) In those cases where there exists a collective
bargaining agreement, any public employer or exclusive
representative desiring to terminate, modify, or negotiate a
successor collective bargaining agreement shall: (a) Serve written notice upon the other party of the
proposed termination, modification, or successor agreement. The
party must serve the notice not less than sixty days prior to the
expiration date of the existing agreement or, in the event the
existing collective bargaining agreement does not contain an
expiration date, not less than sixty days prior to the time it is
proposed to make the termination or modifications or to make
effective a successor agreement. (b) Offer to bargain collectively with the other party for
the purpose of modifying or terminating any existing agreement or
negotiating a successor agreement; (c) Notify the state employment relations board of the
offer
by serving upon the board a copy of the written notice to
the
other party and a copy of the existing collective bargaining
agreement. (2) In the case of initial negotiations between a public
employer and an exclusive representative, where a collective
bargaining agreement has not been in effect between the parties,
any party may serve notice upon the board and the other party
setting forth the names and addresses of the parties and offering
to meet, for a period of ninety days, with the other party for
the
purpose of negotiating a collective bargaining agreement. If the settlement procedures specified in divisions (B),
(C),
and (D) of this section govern the parties, where those
procedures
refer to the expiration of a collective bargaining
agreement, it
means the expiration of the sixty-day period to
negotiate a
collective bargaining agreement referred to in this
subdivision,
or in the case of initial negotiations, it means the
ninety day
period referred to in this subdivision. (3) The parties shall continue in full force and effect
all
the terms and conditions of any existing collective
bargaining
agreement, without resort to strike or lock-out, for a
period of
sixty days after the party gives notice or until the
expiration
date of the collective bargaining agreement, whichever
occurs
later, or for a period of ninety days where applicable. (4) Upon receipt of the notice, the parties shall enter
into
collective bargaining. (C) In the event the parties are unable to reach an
agreement, they may submit, at any time prior to forty-five days
before the expiration date of the collective bargaining
agreement,
the issues in dispute to any mutually agreed upon
dispute
settlement procedure which supersedes the procedures
contained in
this section. (1) The procedures may include: (a) Conventional arbitration of all unsettled issues; (b) Arbitration confined to a choice between the last
offer
of each party to the agreement as a single package; (c) Arbitration confined to a choice of the last offer of
each party to the agreement on each issue submitted; (d) The procedures described in division (C)(1)(a), (b),
or
(c) of this section and including among the choices for the
arbitrator, the recommendations of the fact finder, if there are
recommendations, either as a single package or on each issue
submitted; (e) Settlement by a citizens' conciliation council
composed
of three residents within the jurisdiction of the public
employer.
The public employer shall select one member and the
exclusive
representative shall select one member. The two
members selected
shall select the third member who shall chair
the council. If the
two members cannot agree upon a third member
within five days
after their appointments, the board shall
appoint the third
member. Once appointed, the council shall make
a final settlement
of the issues submitted to it pursuant to
division (G) of this
section. (f) Any other dispute settlement procedure mutually agreed
to by the parties. (2) If, fifty days before the expiration date of the
collective bargaining agreement, the parties are unable to reach
an agreement, any party may request the state employment
relations
board to intervene. The request shall set forth the
names and
addresses of the parties, the issues involved, and, if
applicable,
the expiration date of any agreement. The board shall intervene and investigate the dispute to
determine whether the parties have engaged in collective
bargaining. If an impasse exists or forty-five days before the
expiration
date of the collective bargaining agreement if one
exists, the
board shall appoint a mediator to assist the parties
in the
collective bargaining process. (3) Any time after the appointment of a mediator, either party may request the appointment of a fact-finding panel. Within fifteen days after receipt of a request for a fact-finding panel, the
board shall appoint a fact-finding
panel of not
more than three members who have been selected by
the parties in
accordance with rules established by the board,
from a list of
qualified persons maintained by the board. (a) The fact-finding panel shall, in accordance with rules
and procedures established by the board that include the
regulation of costs and expenses of fact-finding, gather facts
and
make recommendations for the resolution of the matter. The
board
shall by its rules require each party to specify in writing
the
unresolved issues and its position on each issue to the
fact-finding panel. The fact-finding panel shall make final
recommendations as to all the unresolved issues. (b) The board may continue mediation, order the parties to
engage in collective bargaining until the expiration date of the
agreement, or both. (4) The following guidelines apply to fact-finding: (a) The fact-finding panel may establish times and place
of
hearings which shall be, where feasible, in the jurisdiction
of
the state. (b) The fact-finding panel shall conduct the hearing
pursuant to rules established by the board. (c) Upon request of the fact-finding panel, the board
shall
issue subpoenas for hearings conducted by the panel. (d) The fact-finding panel may administer oaths. (e) The board shall prescribe guidelines for the
fact-finding panel to follow in making findings. In making its
recommendations, the fact-finding panel shall take into
consideration the factors listed in divisions (G)(7)(a) to (f) of
this section. (f) The fact-finding panel may attempt mediation at any
time
during the fact-finding process. From the time of
appointment
until the fact-finding panel makes a final
recommendation, it
shall not discuss the recommendations for
settlement of the
dispute with parties other than the direct
parties to the dispute. (5) The fact-finding panel, acting by a majority of its
members, shall transmit its findings of fact and recommendations
on the unresolved issues to the public employer and employee
organization involved and to the board no later than fourteen
days
after the appointment of the fact-finding panel, unless the
parties mutually agree to an extension. The parties shall share the cost of the fact-finding panel in a manner agreed to by the parties. (6)(a)(a) Not later than seven days after the findings and
recommendations are sent, the legislative body, by a three-fifths
vote of its total membership, and in the case of the public
employee organization, the membership, by a three-fifths vote of
the total membership, may reject the recommendations; if neither
rejects the recommendations, the recommendations shall be deemed
agreed upon as the final resolution of the issues submitted and a
collective bargaining agreement shall be executed between the
parties, including the fact-finding panel's recommendations,
except as otherwise modified by the parties by mutual agreement.
If either the legislative body or the public employee
organization
rejects the recommendations, the board shall
publicize the
findings of fact and recommendations of the
fact-finding panel.
The board shall adopt rules governing the
procedures and methods
for public employees to vote on the
recommendations of the
fact-finding panel.
(b) As used in division (C)(6)(a) of this section,
"legislative body" means the controlling board when the state or
any of its agencies, authorities, commissions, boards, or other
branch of public employment is party to the fact-finding process. (b) As used in division (C)(6)(a) of this section, "legislative body" means the controlling board when the state or any of its agencies, authorities, commissions, boards, or other branch of public employment is party to the fact-finding process.
(D) If the parties are unable to reach agreement within
seven days after the publication of findings and recommendations
from the fact-finding panel or the collective bargaining
agreement, if one exists, has expired, then the: (1) Public employees, who are members of a police or fire
department, members of the state highway patrol, deputy sheriffs,
dispatchers employed by a police, fire or sheriff's department or
the state highway patrol or civilian dispatchers employed by a
public employer other than a police, fire, or sheriff's
department
to dispatch police, fire, sheriff's department, or
emergency
medical or rescue personnel and units, an exclusive
nurse's unit,
employees of the state school for the deaf or the
state school for
the blind, employees of any public employee
retirement system,
corrections officers, guards at penal or
mental institutions,
special police officers appointed
in accordance with sections
5119.14 and 5123.13 of the Revised
Code, psychiatric attendants
employed at mental health forensic
facilities, or youth leaders
employed at juvenile correctional
facilities, shall submit the
matter to a final offer settlement
procedure pursuant to a board
order issued forthwith to the
parties to settle by a conciliator
selected by the parties. The
parties shall request from the board
a list of five qualified
conciliators and the parties shall select
a single conciliator
from the list by alternate striking of names.
If the parties
cannot agree upon a conciliator within five days
after the board
order, the board shall on the sixth day after its
order appoint a
conciliator from a list of qualified persons
maintained by the
board or shall request a list of qualified
conciliators from the
American arbitration association and appoint
therefrom. (2) Public employees other than those listed in division
(D)(1) of this section have the right to strike under Chapter
4117. of the Revised Code provided that the employee organization
representing the employees has given a ten-day prior written
notice of an intent to strike to the public employer and to the
board, and further provided that the strike is for full,
consecutive
work days and the beginning date of the strike is at
least ten work days after
the ending date of the most recent prior
strike involving the same bargaining
unit; however, the board, at
its discretion, may attempt
mediation at any time. (E) Nothing in this section shall be construed to prohibit
the parties, at any time, from voluntarily agreeing to submit any
or all of the issues in dispute to any other alternative dispute
settlement procedure. An agreement or statutory requirement to
arbitrate or to settle a dispute pursuant to a final offer
settlement procedure and the award issued in accordance with the
agreement or statutory requirement is enforceable in the same
manner as specified in division (B) of section 4117.09 of the
Revised Code. (F) Nothing in this section shall be construed to prohibit
a
party from seeking enforcement of a collective bargaining
agreement or a conciliator's award as specified in division (B)
of
section 4117.09 of the Revised Code. (G) The following guidelines apply to final offer
settlement
proceedings under division (D)(1) of this section: (1) The parties shall submit to final offer settlement
those
issues that are subject to collective bargaining as
provided by
section 4117.08 of the Revised Code and upon which
the parties
have not reached agreement and other matters mutually
agreed to by
the public employer and the exclusive
representative; except that
the conciliator may attempt mediation
at any time. (2) The conciliator shall hold a hearing within thirty
days
of the board's order to submit to a final offer settlement
procedure, or as soon thereafter as is practicable. (3) The conciliator shall conduct the hearing pursuant to
rules developed by the board. The conciliator shall establish the
hearing
time and place, but it shall be, where feasible, within
the jurisdiction of
the state. Not later than five calendar days
before the hearing, each of the
parties shall submit to the
conciliator, to the opposing party, and to the board, a written
report summarizing the unresolved issues, the party's final offer
as to the issues, and the rationale for that position. (4) Upon the request by the conciliator, the board shall
issue subpoenas for the hearing. (5) The conciliator may administer oaths. (6) The conciliator shall hear testimony from the parties
and provide for a written record to be made of all statements at
the hearing. The board shall submit for inclusion in the record
and for consideration by the conciliator the written report and
recommendation of the fact-finders. (7) After hearing, the conciliator shall resolve the
dispute
between the parties by selecting, on an issue-by-issue
basis, from
between each of the party's final settlement offers,
taking into
consideration the following: (a) Past collectively bargained agreements, if any,
between
the parties; (b) Comparison of the issues submitted to final offer
settlement relative to the employees in the bargaining unit
involved with those issues related to other public and private
employees doing comparable work, giving consideration to factors
peculiar to the area and classification involved; (c) The interests and welfare of the public, the ability
of
the public employer to finance and administer the issues
proposed,
and the effect of the adjustments on the normal
standard of public
service; (d) The lawful authority of the public employer; (e) The stipulations of the parties; (f) Such other factors, not confined to those listed in
this
section, which are normally or traditionally taken into
consideration in the determination of the issues submitted to
final offer settlement through voluntary collective bargaining,
mediation, fact-finding, or other impasse resolution procedures
in
the public service or in private employment. (8) Final offer settlement awards made under Chapter 4117.
of the Revised Code are subject to Chapter 2711. of the Revised
Code. (9) If more than one conciliator is used, the
determination
must be by majority vote. (10) The conciliator shall make written findings of fact
and
promulgate a written opinion and order upon the issues
presented
to the conciliator, and upon the record made before
the
conciliator and shall mail or otherwise deliver a true copy
thereof to the
parties and the board. (11) Increases in rates of compensation and other matters
with cost implications awarded by the conciliator may be
effective
only at the start of the fiscal year next commencing
after the
date of the final offer settlement award; provided that
if a new
fiscal year has commenced since the issuance of the
board order to
submit to a final offer settlement procedure, the
awarded
increases may be retroactive to the commencement of the
new fiscal
year. The parties may, at any time, amend or modify a
conciliator's award or order by mutual agreement. (12) The parties shall bear equally the cost of the final
offer settlement procedure. (13) Conciliators appointed pursuant to this section shall
be residents of the state. (H) All final offer settlement awards and orders of the
conciliator made pursuant to Chapter 4117. of the Revised Code
are
subject to review by the court of common pleas having
jurisdiction
over the public employer as provided in Chapter
2711. of the
Revised Code. If the public employer is located in
more than one
court of common pleas district, the court of common
pleas in which
the principal office of the chief executive is
located has
jurisdiction. (I) The issuance of a final offer settlement award
constitutes a binding mandate to the public employer and the
exclusive representative to take whatever actions are necessary
to
implement the award.
Section 2. That existing sections 2317.02 and 4117.14 of the Revised Code are hereby repealed. Section 3. Section 2317.02 of the Revised Code is presented in
this act as a composite of the section as amended by Am. Sub. H.B. 374, Am. H.B. 533, and Am. Sub. S.B. 281, all of
the 124th General Assembly. The General Assembly, applying the
principle stated in division (B) of section 1.52 of the Revised
Code that amendments are to be harmonized if reasonably capable of
simultaneous operation, finds that the composite is the resulting
version of the section in effect prior to the effective date of
the section as presented in this act.
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