         [Cite as Cincinnati v. State, 2012-Ohio-3162.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



CITY OF CINCINNATI,                                :      APPEAL NO. C-110680
                                                          TRIAL NO. A-1005917
        Plaintiff-Appellant,                       :
                                                             O P I N I O N.
  vs.                                              :

STATE OF OHIO,                                     :

     Defendant,                                    :

  and                                              :

CINCINNATI ORGANIZED AND                           :
DEDICATED EMPLOYEES,
                                                   :
        Defendant-Appellee.
                                                   :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 13, 2012


John Curp, City Solicitor, and Richard Ganulin, Assistant City Solicitor, for Plaintiff-
Appellant,

Minnillo & Jenkins Co., LPA, Christian A. Jenkins, Amy Gullifer, and Niroshan
Wijesooriya, for Defendant-Appellee.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}    Plaintiff-appellant city of Cincinnati appeals from a decision of the

Hamilton County Court of Common Pleas, granting summary judgment in favor of

defendant-appellee Cincinnati Organized and Dedicated Employees (“CODE”). The

city had filed a declaratory judgment action asking the court to declare a city

ordinance that required city employees to live in the state of Ohio to be lawful. We

affirm the trial court’s judgment.

       {¶2}    The record shows that the city is a home-rule chartered municipal

corporation under the Ohio Constitution. CODE is the exclusive representative for

purposes of collective bargaining for approximately 850 city employees.

       {¶3}    In 2006, the Ohio legislature enacted R.C. 9.481, which generally

prohibited political subdivisions from imposing residency requirements on

employees. Subsequently, in Lima v. State, 122 Ohio St.3d 155 , 2009-Ohio-2597,

909 N.E.2d 616, the Ohio Supreme Court held that R.C. 9.481 was validly enacted

under the general welfare clause of the Ohio Constitution and that it, therefore,

prevailed over conflicting residency laws of political subdivisions. Id. at ¶ 1; Ohio

Patrolmen’s Benevolent Assn. v. Perrysburg, 6th Dist. No. WD-10-033, 2011-Ohio-

644, ¶ 21; Missig v. C/O Cleveland Civil Serv. Comm., 8th Dist. No. 91699, 2010-

Ohio-2595, ¶ 2.

       {¶4}    In 2010, the city amended Cincinnati Municipal Code 308-83(a) to

provide that “Except as otherwise provided herein, all employees appointed to

positions in the city service may only reside within the geographical boundaries of

the State of Ohio.”    CODE filed a grievance contesting that requirement.        An

arbitrator dismissed the grievance concluding that the issue of whether R.C. 9.481




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                     OHIO FIRST DISTRICT COURT OF APPEALS



permitted the city to require employees to reside in the state of Ohio was “a question

of external law and therefore beyond the authority of the Arbitrator to determine.”

       {¶5}    The city subsequently filed a complaint for a declaratory judgment

that R.C. 9.481 did not override Cincinnati Municipal Code 308-83(a) and did not

prevent the city from requiring that city employees reside in the state of Ohio. CODE

filed a counterclaim in which it asked the court to declare that Cincinnati Municipal

Code 308-83(a) was void and that CODE members had the right to reside any place

they desired, including outside of the state of Ohio.

       {¶6}    Both parties filed motions for summary judgment. After examining

the provisions of R.C. 9.481, the trial court found that employees of political

subdivisions “have the right to reside any place they desire without geographical

limitation[.]” It granted CODE’s motion for summary judgment and denied the

city’s. This appeal followed.

       {¶7}    In its sole assignment of error, the city contends that the trial court

erred in granting summary judgment in favor of CODE. It argues that the trial court

failed to properly apply the rules of statutory construction in finding that Cincinnati

Municipal Code 308.83(a) conflicted with R.C. 9.481. This assignment of error is not

well taken.

       {¶8}   The main goal of statutory construction is to determine and give effect

to the legislature’s intent. Basic Distrib. Corp. v. Ohio Dept. of Taxation, 94 Ohio

St.3d 287, 291, 762 N.E.2d 979 (2002); Bank of Am., NA v. Omega Design/Build

Group, LLC, 1st Dist. No. C-100018, 2011-Ohio-1650, ¶ 27. Courts must look first to

the language of the statute itself to determine the legislative intent. Zumwalde v.

Madeira and Indian Hill Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946




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                      OHIO FIRST DISTRICT COURT OF APPEALS



N.E.2d 748, ¶ 22-23; In re Burchfield, 51 Ohio App.3d 148, 152, 555 N.E.2d 325 (4th

Dist.1988).

       {¶9}   Courts must also evaluate the statute as a whole. Boley v. Goodyear

Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20-21;

Melampy v. Evans Landscaping, Inc., 12th Dist. No. CA2011-03-045, 2012-Ohio-

675, ¶ 18. They have a duty to give effect to all of the words used in the statute and

may not delete words or insert words that are not used. Bernardini v. Bd. of Edn.,

58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979); In re Estate of Myers, 1st Dist. No. C-

940828, 1995 Ohio App. Lexis 5790 (Dec. 29, 1995), *4; Burchfield at 152.

       {¶10} R.C. 9.481 is entitled “Political subdivisions generally prohibited from

imposing residency requirements on employees.” Subsection (A) is a definitional

section. R.C. 9.481(B)(1) states that “[e]xcept as otherwise provided in division

(B)(2) of this section, no political subdivision shall require any of its employees, as a

condition of employment, to reside in any specific area of the state.” Subsection

(B)(2)(b) provides an exception that permits localities to require certain employees

to live no farther away than adjacent counties to “ensure adequate response times by

certain employees of political subdivisions to emergencies or disasters while

ensuring that those employees generally are free to reside throughout the state[.]”

Finally, subsection (C) states that “[e]xcept as provided in division (B)(2) of this

section, employees of political subdivisions of this state have the right to reside any

place they desire.”

       {¶11} When viewed in its entirety, the structure of the statute is clear. It is

divided into three parts. Subsection (A) provides the definitions of certain terms.

Subsection (B) outlines the exceptions to the general rule set forth in subsection (C),




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                      OHIO FIRST DISTRICT COURT OF APPEALS



which is that employees of political subdivisions “have the right to reside any place

they desire.”

         {¶12} The trial court correctly stated that “subsection (C) is a statement of

law.” It found that the language in subsections (B)(1) and (B)(2) referring to “the

state” was not “sufficient to overcome the clear and unambiguous language

contained in subsection (C) that allows public subdivision employees, who do not fall

[within] the scope of subsection (B)(2)(b) to reside wherever they want without

limitation.”

         {¶13} The court noted that subsection (B)(1) is also a statement of law that

prohibits a political subdivision from preventing employees from residing in any

specific area of the state except as provided in subsection (B)(2)(b). It went on to

state:

         Because subsection (B)(1) only stops a political subdivision from

         preventing an employee residing in any specific area of the state,

         there is an implication that a political subdivision could prevent an

         employee from living outside the state. However, this is not the same

         as expressly stating that the political subdivision has the right to

         prevent its employees from living out of state. And the language of

         subsection (B)(1) is not sufficient to trump the clear and

         unambiguous language found in subsection (C).

         {¶14} Using that logic, the trial court went on to conclude that “public

subdivision employees, pursuant to R.C. § 9.481(C), have the right to reside any place

they desire without geographical limitation except for those certain employees who

fall within the exception of R.C. § 9.481(B)(2)(b).” We agree with the trial court’s

reasoning.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶15} If the legislature had intended to limit the broad right of public

employees to live any place they desire as granted in subsection (C), it could have

done so by including the phrase “in this state” as it did in subsection (B). But it did

not, and we will not rewrite the statute by adding words the legislature did not use.

See Seeley v. Expert, Inc., 26 Ohio St.2d 61, 71, 269 N.E.2d 121 (1971); Myers, 1995

Ohio App. Lexis 5790, at *4.

        {¶16} The city’s interpretation of the statute would render subsection (C)

superfluous, while the trial court’s result gives each section meaning. We must

presume that the legislature, in enacting statutes, intended the entire statute to be

effective. R.C. 1.47(B). “To determine legislative intent, ‘significance and effect

should be accorded to every word, phrase, sentence and part thereof, if possible.’ ”

State ex rel. Nation Bldg. Technical Academy v. Dept. of Edn., 123 Ohio St.3d 35,

2009-Ohio-4084, 913 N.E.2d 977, ¶ 18, quoting State v. Wilson, 77 Ohio St.3d 334,

336-337, 673 N.E.2d 1347 (1997).

        {¶17} Consequently, we hold that Cincinnati Municipal Code 308-83(a) is in

conflict with R.C. 9.481, and it is, therefore, void. We overrule the city’s assignment

of error and affirm the trial court’s decision granting summary judgment in favor of

CODE.

                                                                  Judgment affirmed.



S UNDERMANN , P.J., and H ENDON , J., concur.


Please note:
        The court has recorded its own entry this date.




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