The opinion
Cynthia Wescott Rice, J.,
concurring.
{¶ 125} While I agree with the writing judge’s resolution of the case, I do not believe R.C. 9.481 necessarily conflicts with home-rule ordinances that make residency a precondition of employment. Rather, such a pre-employment criterion affects the interests of
prospective
employees. In order to clarify my position, I write separately.
{¶ 126} While Section 155.05 of the Warren Codified Ordinances affects all employees hired subsequent to its enactment, it has a built-in “grandfather clause” for those employees who did not reside in the city prior to its enactment. However, until prospective employees become actual employees, they will be unaffected by the ordinance. By becoming employees, individuals will have voluntarily agreed to the pre-employment condition of their specific job. Individuals have the freedom to choose where to live. Likewise, in making an employment decision, they may waive this option in order to obtain employment with a municipality that has a residency requirement.
{¶ 127} The unions assert that R.C. 9.481 represents a proper exercise of the General Assembly’s authority under Section 34, Article II of the Ohio Constitu
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tion. They further argue that Section 155.05 directly conflicts with the statute and is rendered invalid by virtue of the Supremacy Clause of the Ohio Constitution. I agree that R.C. 9.481 is a valid legislative enactment. Moreover, I agree with the unions’ argument as it pertains to the ordinance at issue. However, I believe that the unions’ position is persuasive only to the extent that the ordinance fails to provide an exception to the residency requirement for unpredictable changes in circumstances, emergencies, and hardships that might require the employee to move from the city yet nevertheless keep his or her job, e.g., an ailing parent or a spouse’s change in employment.
{¶ 128} Because Section 155.05 does not have such an exception or create a process by which an employee could be exempted from the residency requirement, it makes residency in Warren a fundamental condition of actual employment. In this regard, R.C. 9.481 is valid and must necessarily supersede Section 155.05.
{¶ 129} However, I do not think that home-rule ordinances that incorporate residency requirements will always conflict with R.C. 9.481. For instance, where a political subdivision enacts an ordinance that makes residency a precondition of employment, such a condition affects only potential employees. Potential employees are nonemployees, nonunion members, and, by implication, have no cognizable collective-bargaining rights. R.C. 9.481 has no application to potential employees or scenarios in which actual employees are unaffected. Thus, home-rule ordinances that impact the welfare of nonemployees are in no conflict -with the mandates of R.C. 9.481.
{¶ 130} If Section 155.05 were rewritten to include an exception, it is unclear how the Unions can assert that the ordinance runs afoul of R.C. 9.481 when the only individuals it would actually affect are nonemployees who find the provision unnecessarily burdensome. Because nonemployees will suffer no concrete injury by operation of Section 155.05, they have no personal stake in the controversy. For a party to have standing, he, she, or it must have a personal stake in the outcome of the controversy, a concrete injury that will be resolved by the court, not a mere hypothetical or conjectural matter. See
Bourke v. Carnahan,
163 Ohio App.3d 818 , 2005-Ohio-5422 , 840 N.E.2d 1101, at ¶ 10 ; see also
Middletown v. Ferguson
(1986), 25 Ohio St.3d 71, 75 , 25 OBR 125, 495 N.E.2d 380 . In this regard, the unions have no standing to assert their argument insofar as it is directed at the burdens the ordinance places upon those who have yet to accept employment.
{¶ 131} With this in mind, if the exception discussed above were built into Section 155.05,1 do not think it would stand in conflict with R.C. 9.481. I believe Section 155.05 incorporates a valid pre-employment condition that prospective employees must agree to before being hired. By entering into this pre-employ
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ment condition, they waive their right to collectively-bargain the issue. However, because the ordinance does not provide a limited exception for emergencies that might require an employee to suddenly or even temporarily change residences, it also requires its new hires to reside in Warren irrespective of the potential changes in their personal circumstances. Hence, as it is written, I agree that the ordinance conflicts with R.C. 9.481.
{¶ 132} To summarize, it is foreseeable that nonelected public employees who have accepted the pre-employment residency condition may encounter changes in their lives necessitating a relocation of their residence. However, the inability to relocate outside the municipality could have a negative impact'on these employees and affect their general welfare. With no exception to accommodate for these changes, I believe Section 155.05 requires employees, as a condition of their employment, to reside in Warren. This is an employment condition that, due to its inflexibility, directly violates R.C. 9.481. I consequently concur with the conclusion that the ordinance must yield to R.C. 9.481, a law deriving its validity from the proper exercise of the General Assembly’s authority under Section 34, Article II of the Ohio Constitution.