Sheriff of Broward County v. Stanley

• Decision Date: 06 January 2011
• Docket Number: No. 1D10-922.,1D10-922.
• Citation: 50 So.3d 640
• Parties: SHERIFF OF BROWARD COUNTY, Appellant, v. Jeffrey STANLEY, Appellee.
• Court: Florida District Court of Appeals

50 So.3d 640 SHERIFF OF BROWARD COUNTY, Appellant, v. Jeffrey STANLEY, Appellee. No. 1D10-922. District Court of Appeal of Florida, First District. Nov. 17, 2010. Rehearing Denied Jan. 6, 2011.

Robert L. Norton, Dena H. Sokolow, Jason E. Vail of Allen Norton & Blue, P.A., Tallahassee, for Appellant.

Kathleen M. Phillips, Holly E. Van Horsten of Phillips & Richard, P.A., Miami, for Appellee.

PER CURIAM.

The appellant, the Sheriff of Broward County, appeals an order of the FloridaPublic Employee Relations Commission (PERC) finding that the Sheriff violated sections 447.501(1)(a) and (b), Florida Statutes, when it declined to rehire appellee Jeffrey Stanley. The Sheriff raises two issues on appeal: (1) whether PERC's finding that the Sheriff violated section 447.501(1)(a) was error because Stanley was a job applicant, not an employee, when the Sheriff declined to rehire him; and (2) whether PERC erred in finding that the Sheriff violated section 447.501(1)(b) by not rehiring Stanley because of his union activities as opposed to his political involvement. We hold that Stanley as a job applicant is not a public employee within the plain meaning of section 447.501(1)(a) and that PERC lacked competent substantial evidence to support its finding that Stanley was not rehired because of his union involvement in violation of section 447.501(1)(b). We therefore reverse PERC's order on both grounds.

Facts and Procedural History

Stanley worked as a certified detention deputy for the Sheriff's Office from February 2001 to December 2007, when he resigned to accept an outside position. During his employment by the Sheriff's Office and all periods relevant to this case, Stanley was a member of the Federation of Public and Private Employees (Union). In April or May 2008, Stanley applied to be rehired by the Sheriff's Office in his former position. A human resources representative informed Stanley that a policy required employees who are rehired to be paid at "step two," which is a lower rate of pay than Stanley received before resigning from the Sheriff's Office. Stanley discussed the policy with Lieutenant Benjamin, the executive officer to the Sheriff of Broward County, Al Lamberti, and sent e-mails to Sheriff Lamberti requesting a meeting to discuss the pay grade. Stanley also contacted Union representative Tony Olive; Olive spoke with Tony Fenoy, director of the Union's bargaining unit, regarding the policy. Both Olive and Fenoy contacted the Sheriff's Office several times on Stanley's behalf.

While Stanley and representatives of the Union were in discussions with the Sheriff's Office regarding the rate of pay, Stanley's application for rehire was deactivated. Upon learning of the deactivation, Stanley agreed to accept a "step two" salary, and the Sheriff's Office reactivated his application. On September 25, 2008, Stanley received a conditional offer of employment pending successful completion of a background check and other requirements.

At the same time Stanley was seeking approval of his application, Sheriff Lamberti was running for re-election against challenger Scott Israel. The Union endorsed Israel. Union representatives told Stanley that supporting Israel could help Stanley obtain a review of his salary if Israel were elected.

Also during this time, the Union had declared an impasse in a wage dispute unrelated to Stanley. On October 15, 2008, Stanley exited the Sheriff's Office after dropping off paperwork for his background check. About 500 Union members were picketing in front of the Sheriff's Office regarding the impasse. Union representatives participating in the picket asked Stanley to join them, and Stanley did so. At the picket, Stanley learned about a debate between Sheriff Lamberti and Israel that evening. Stanley attended the debate wearing a pro-Israel T-shirt he received from Union members at the picket. A Sheriff's Office photographer took photos of the Union picketers and Union members at the debate. Stanley is identifiable in some of the photos. Stanley also handed out pro-Israel leaflets at a polling place at the direction of Union representatives.

On November 4, 2008, Sheriff Lamberti won re-election. On November 14, a human resources representative wrote in an e-mail to Stanley that she received the completed background check on Stanley and planned to rehire Stanley in December. On December 4, 2008, Stanley received a call from Lieutenant Benjamin, who told Stanley that the Sheriff was not going to rehire him because he had supported Israel.

After Stanley received a letter from human resources stating he was no longer being considered for re-employment, he filed an unfair labor practice charge with PERC, alleging the Sheriff discriminated against him because of his political activities and Union involvement. At an evidentiary hearing on July 31, 2009, Stanley testified that during their December 4, 2008, telephone call, Lieutenant Benjamin blamed the Union for getting Stanley involved in the Israel campaign:

[Stanley]: It was maybe thirty, forty five minutes later, Lieutenant Dave Benjamin, the Executive Officer to the Sheriff called me to discuss the fact that they were not going to re hire me because BSO had a photograph of me wearing a Scott Israel for Sheriff T-shirt.

Q: Did he tell you where that photo came from?

A: He did not.

Q: Did he say anything else during that conversation?

A: Yes, he did. He blamed the Union, for me listening to the Union and doing the things the Union asked me to do.

On January 26, 2010, PERC issued a final order concluding the Sheriff violated sections 447.501(1)(a) and (b) for failing to rehire Stanley because of his Union activities. PERC ordered the Sheriff to cease and desist from declining to rehire Stanley.

Whether the Sheriff Violated Section 447.501(1)(a), Florida Statutes

The Sheriff argues that because section 447.501(1)(a) only applies to public employees and Stanley was not a public employee when the Sheriff declined to rehire him, the Sheriff could not have violated section 447.501(1)(a).

Section 447.501(1)(a) provides that,

(1) Public employers or their agents or representatives are prohibited from:

(a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

(Emphasis added.) "Public employee" is defined by section 447.203(3), Florida Statutes, as any person employed by a public employer except appointed or elected persons, military employees, negotiating representatives, managerial or confidential employees, employees of the Florida Legislature, criminal inmates, fruit and vegetable inspectors, employees of the Public Employees Relations Commission, and undergraduate state university students who conduct part-time work for the university. Contrary to PERC's finding, at the time of his application for rehire, Stanley was not a public employee within the section 447.203(3) definition.

While PERC's interpretation of section 447.501(1)(a) is entitled to deference, BellSouth Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla.1998), a court need not defer to an agency's construction of a statute "if the agency's interpretation conflicts with the plain and ordinary meaning of the statute." Florida Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 848 (Fla. 1st DCA 2002). Under the plain and ordinary meaning of the term "public employee" as used in section 447.501(1)(a), "interfering with, restraining, or coercing" a job applicant whois not a public employee does not violate section 447.501(1)(a). Because Stanley was not a public employee at the time the Sheriff declined to rehire him, PERC erred by finding the Sheriff violated section 447.501(1)(a). See Daniels v. Florida Department of Health, 898 So.2d 61, 64 (Fla.2005) ("When the statute is clear and unambiguous, courts will not look behind the statute's plain language....").

In support of its interpretation, PERC relied on Southwest Florida Police Benevolent Ass'n v. City of Bradenton, 9 FPER ¶ 14100 (1983), aff'd, 440 So.2d 358 (Fla. 2d DCA 1983). In Southwest Florida, the City of Bradenton discharged a managerial employee who was excluded from the definition of a public employee for the purposes of Chapter 447, Part II, for refusing to discriminate against subordinates who belonged to a union. Id. at 189. Under those facts, PERC held that the dismissal or discipline of a managerial employee violates section 447.501(1)(a) when it indicates restraint and coercion of employees who are public employees under Chapter 447, Part II. Id. at 193; see also § 447.203(3)(d), Fla. Stat. (noting that managerial employees do not meet the definition of public employees). PERC held that in order to establish a violation of section 447.501(1)(a), the charging party must show that public employees know the individual was...