City of Panama City v. Florida Public Employees Relations Commission, GG-362

• Decision Date: 17 November 1978
• Docket Number: No. GG-362,GG-362
• Parties: 100 L.R.R.M. (BNA) 2130 CITY OF PANAMA CITY, Florida, Petitioner, v. The FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.
• Court: Florida District Court of Appeals

Page 109

364 So.2d 109

100 L.R.R.M. (BNA) 2130

CITY OF PANAMA CITY, Florida, Petitioner, v. The FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.

No. GG-362.

District Court of Appeal of Florida, First District.

Nov. 17, 1978.

John-Edward Alley and Richard R. Parker, of Alley & Alley, Miami, Rowlett W. Bryant, of Sales, Bryant, Daniels & Thompson, Panama City, and Alley & Alley, Miami, for petitioner.

Leonard Carson, C. Anthony Cleveland and Anne M. Parker, Tallahassee, for respondent.

BOYER, Acting Chief Judge.

By this petition for review, the City of Panama City (City) seeks review of an order of the Florida Public Employees Relations Commission (PERC) denying approval of the City's local option ordinance.

F.S. 447.603 provides that municipalities may adopt local ordinances governing collective bargaining relationships between the municipality and its employees. Prior to becoming law, the municipality must apply to PERC for review and approval as to whether the provisions or procedures in the local ordinance are "substantially equivalent" to the provisions and procedures set forth in the Public Employees Relations Act (PERA). After the local option ordinance becomes law, it operates in lieu of the requirements of PERA.

In December, 1974, the City filed with PERC local ordinance number 912, a local option ordinance governing labor relations between the City and its employees. A public hearing was set to determine the question of substantial equivalency of the ordinance. However, prior to the hearing, the City adopted ordinance number 933, an amended version of ordinance number 912, which the City contends better conforms to the parameters of the concept of substantial equivalency which was espoused by PERC in another local option case. The City attempted to present oral argument on the amended ordinance at the scheduled hearing before PERC, but the Chairman declined to hear arguments, reasoning that the parties had not been given sufficient time to study it. In April, 1976, a hearing was finally held on City ordinance number 933. At that hearing, the Commission rendered an oral decision which approved the ordinance subject to certain modifications and conditions. During a workshop held over a year later, the Commission redetermined the issue of the substantial equivalency of the ordinance. Thereafter, the Commission entered its order denying approval.

The City raises as its first error the question of whether PERC erroneously rejected the City's local option ordinance by incorrectly construing F.S. 447.603 to require a "substantial departure" standard of review.

Initially, we note that PERC found nine deficiencies in the submitted local option. Of those nine deficiencies enumerated by PERC, only two mention the test of substantial departure and one of those, in the same paragraph, also mentioned the standard "substantially equivalent". Therefore, it does not appear that PERC used an improper standard of review when throughout the order here appealed the standard of "substantially equivalent" was used.

We approve on the merits PERC's findings concerning the following eight deficiencies in the submitted local option: A registration procedure which did not recognize previous registration with the Commission, thus subjecting an employee organization to the burden of multiple registration, and required additional registration requirements; an impasse procedure which focused attention on factors significant to impasse resolution not found in the act; a strike penalty clause which erroneously referred to the state act rather than the local ordinance; a certification clause which failed to honor certifications already issued by the Commission; a clause providing that all rules of the local Commission became effective upon City Commission approval, without providing for Commission approval as required by Section 447.603 of the Act and Fla. Administrative Code Rule 8H-7.08; a lack of any provision requiring the local option to accept jurisdiction of cases pending before the Commission and to grant such cases expedited treatment; a clause providing that the local option will become effective upon submission to the Commission, which is contrary to both the mandates of F.S. 447.603 and established case law; and the lack of any provision requiring Commission approval of any subsequent amendment to the ordinance, which is inconsistent with the Commission's continuous duty to insure that a local option grants public employees rights and procedures substantially equivalent to those found in the act. However, concerning PERC's finding that "a local Commission consisting of only three members does not secure to public employees rights and procedures substantially equivalent to those provided by the five member Commission with a three member quorum as established by the act" we must reverse. Whether or not there are three members or five members on the Commission does not substantially affect the rights secured by the act.

In its second point, the City contends that PERC, by deviating from its prior holdings without providing explanation or justification for the departure, committed an abuse of discretion. However, concerning this alleged error, we must agree with PERC that where the order here appealed departed from prior Commission rulings, the order fully explained the rationale of the Commission and the factors which compelled the modification of its prior decision. The requirements set forth in McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), in so far as here applicable, were satisfied.

In its third point, the City urges that PERC's oral decision of April 7, 1976, conditionally approving the local option ordinance, should be viewed as a final order approving the ordinance and that since the Commission failed to reduce its order to writing, the Commission should be estopped from later denying the res judicata effect of that oral order. On the other hand, PERC contends that an agency decision is not final until it is reduced to writing under F.S. 120.52(9) and that the Commission's oral decision was clearly conditional and ambiguous, and was not an unequivocal ruling duly recorded in the Commission minutes. (Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla.1976)) We are persuaded that the oral decision conditionally approving the local option ordinance cannot be considered as a final order of PERC. It simply was not an unequivocal, unambiguous decision embodied in an official record which would substitute for a written order for the purposes of F.S. 120.52(9) and F.S. 120.68(1).

Next, the City raises as error PERC's conclusion that F.S. 447.603 requires approval by PERC of a local option ordinance before it becomes law. That issue was addressed by Judge Grimes of the Second District Court of Appeal in Public Employees Relations Commission v. City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) and was fully explored. We quote with approval relevant portions of that opinion:

"Thus, the issue boils down to whether PERC's approval of the provisions and procedures established by the city's ordinance is required before the city is entitled to assume jurisdiction of the public employees bargaining procedure.

"The city argues that the statute doesn't specifically say that PERC's approval is a condition precedent to the effectiveness of the ordinance. The city suggests that the legislature simply intended that PERC would act as a watchdog whereby it would have the right to attack in the courts any local ordinance deemed to be insufficient. On the other hand, PERC points to the fact that the statute requires the public employer to apply to 'the commission for review and approval' of its provisions and procedures. PERC suggests that to adopt the city's position would permit a local entity to pass an ordinance establishing any kind of provisions or procedures and to place the burden upon PERC to seek to have it set aside....