FLORIDA PUBLIC EMPLOYEES COUNCIL 79 v. PUBLIC EMP. RELATIONS …, 1D03-1190.

• Decision Date: 22 March 2004
• Docket Number: No. 1D03-1190.,1D03-1190.
• Citation: 871 So.2d 270
• Parties: FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFLCIO, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Florida Board of Governors, Appellees.
• Court: Florida District Court of Appeals

871 So.2d 270

FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME, AFLCIO, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Florida Board of Governors, Appellees.

No. 1D03-1190.

District Court of Appeal of Florida, First District.

March 22, 2004.

Rehearing Denied May 4, 2004.

Alma Gonzalez, Special Counsel for the Florida Public Employees Council 79, AFSCME, Tallahassee; Jerry G. Traynham, Esq. and Ben R. Patterson, Esq. of Patterson & Traynham, Tallahassee, for Appellant.

Michael Mattimore, Esq. and Robert E. Larkin, III, Esq. of Allen, Norton & Blue, P.A., Tallahassee for Florida Board of Governors; David Smolker, Esq. of Bricklemyer, Smolker & Bolves, P.A., Tampa for New College of Florida Board of Trustees, for Appellee.

LEWIS, J.

Appellant, the Florida Public Employees Council 79, AFSCME, AFL-CIO, seeks review of an order of appellee, the Public Employees Relations Commission ("PERC"), dismissing appellant's petitions to amend certification. Appellant contends that PERC erred in designating the university Boards of Trustees as the public employers of their respective universities. For the following reasons, we affirm.

During a special session in 2002, the Florida Legislature passed chapter 02-387, Laws of Florida, "the Governance Act," wherein it abolished the Florida Board of Regents, effective July 1, 2001,¹ and established new criteria for local Boards of Trustees at each state university,² effective January 7, 2003. Ch. 02-387, §§ 3, 83, at 3152, 3236, Laws of Fla. The Legislature amended section 447.203(2), Florida Statutes (2001), which set forth that "the Board of Regents shall be deemed to be the public employer with respect to all public employees within the State University System ..." by replacing the "Board of Regents" with the "university board of trustees" and prescribing that the individual boards would "be the public employer with respect to all public employees of the respective state university...." Ch. 02-387, § 1006, at 4129, Laws of Fla. Thus, section 447.203(2), Florida Statutes (2002), provides, in pertinent part, that:

With respect to all public employees determined by the commission as properly belonging to a statewide bargaining unit composed of State Career Service System employees or Selected Professional Service System employees or Selected Professional Service employees, the Governor shall be deemed to be the public employer; and the university board of trustees shall be deemed to be the public employer with respect to all public employees of the respective state university.

(emphasis added).³

Thereafter, the voters of Florida approved the following constitutional amendment to Article IX of the Florida Constitution in November 2002, which became effective on January 7, 2003:

SECTION 7. State University System.

(a) PURPOSES. In order to achieve excellence through teaching students, advancing research and providing public service for the benefit of Florida's citizens, their communities and economies, the people hereby establish a system of governance for the state university system of Florida.

(b) STATE UNIVERSITY SYSTEM. There shall be a single state university system comprised of all public universities. A board of trustees shall administer each public university and a board of governors shall govern the state university system.

(c) LOCAL BOARDS OF TRUSTEES. Each local constituent university shall be administered by a board of trustees consisting of thirteen members dedicated to the purposes of the state university system. The board of governors shall establish the powers and duties of the boards of trustees. Each board of trustees shall consist of six citizen members appointed by the governor and five citizen members appointed by the board of governors. The appointed members shall be confirmed by the senate and serve staggered terms of five years as provided by law. The chair of the faculty senate, or the equivalent, and the president of the student body of the university shall also be members.⁴

(d) STATEWIDE BOARD OF GOVERNORS. The board of governors shall be a body corporate consisting of seventeen members. The board shall operate, regulate, control, and be fully responsible for the management of the whole university system. These responsibilities shall include, but not be limited to, defining the distinctive mission of each constituent university and its articulation with free public schools and community colleges, ensuring the wellplanned coordination and operation of the system, and avoiding wasteful duplication of facilities or programs. The board's management shall be subject to the powers of the legislature to appropriate for the expenditure of funds, and the board shall account for such expenditures as provided by law. The governor shall appoint to the board fourteen citizens dedicated to the purposes of the state university system. The appointed members shall be confirmed by the senate and serve staggered terms of seven years as provided by law. The commissioner of education, the chair or the advisory council of faculty senates, or the equivalent, and the president of the Florida student association, or the equivalent, shall also be members of the board.

On January 7, 2003, appellee, the Board of Governors, the members of which were appointed by the Governor on December 23, 2002, unanimously met and approved a resolution "delineating the powers and duties of the university Boards of Trustees" pursuant to the powers bestowed upon it by the voters of Florida. The resolution, in pertinent part, provides that "[e]ach board of trustees is vested with the authority to govern its university, as necessary to provide proper governance and improvement of the university in accordance with law and with rules of the Board of Governors." The resolution further provides that:

Each board of trustees shall establish the personnel program for all employees of the university, including the president, pursuant to the provisions of chapter 1012 and, in accordance with rules and guidelines of the Board of Governors, including: compensation and other conditions of employment, recruitment and selection, nonreappointment, standards for performance and conduct, evaluation, benefits and hours of work, leave policies, recognition and awards, inventions and works, travel, learning opportunities, exchange programs, academic freedom and responsibility, promotion, assignment, demotion, transfer, tenure and permanent status, ethical obligations and conflicts of interest, restrictive covenants, disciplinary actions, complaints, appeals and grievance procedures, and separation and termination from employment.... No rule of the Board of Governors shall be considered to in any way contravene the responsibility of each of the university board of trustees to act as the sole public employer with regard to all public employees of its universities for the purposes of collective bargaining in accord with chapter 447 Florida Statutes.

BE IT RESOLVED that it is the intent of the Board of Governors that the university boards of trustees shall be the sole public employer with respect to all public employees of the respective state universities as provided in s. 447.203(2) and (10) F.S. for the purpose of collective bargaining....

(emphasis added).

That same day, appellant filed a Petition to Amend Certification with PERC, requesting that PERC amend "Certifications numbered 730, 731, 732, and 733" to reflect that the Board of Governors, pursuant to article IX, section 7, was the successor employer of all employees whose previous employer was the Board of Education. Appellant subsequently filed an Amended Petition to Amend Certification, which, for the most part, mirrored its initial petition. PERC appointed a hearing officer, who directed the Board of Governors to respond. In his recommended order, the hearing officer found that appellant sought to substitute the Board of Governors for the Board of Education as the public employer for the purpose of collective bargaining and to challenge the Board of Governors' resolution on constitutional grounds. According to the hearing officer, the issue did not raise disputed issues of material fact; however, the pleadings raised disputed issues of law.⁵

In his legal analysis, the hearing officer concluded that, until section 447.203(2), which provides that the Boards of Trustees are to serve as the public employers of their respective universities, was repealed by the Legislature or judicially determined to be invalid or unconstitutional, PERC was bound by it. Based upon this statute, the hearing officer concluded that the Boards of Trustees are the public employers of their individual universities for the purpose of chapter 447. While noting that appellant's constitutional challenge to the Board of Governors' resolution was preserved, the hearing officer noted that he would not address the challenges because PERC only had the jurisdiction, authority, and responsibility to decide the merits of the amendment to certification process. However, "assuming the constitutionality of the resolution," and in reading the "explicit language" of article IX, section 7 to mean that the Board of Governors has a broad range of discretion in establishing the powers and duties of the Boards of Trustees, the hearing officer concluded that the Board of Governors was not the public employer because the resolution granted that authority to the Boards of Trustees.

Following the filing of appellant's exceptions to the recommended order, PERC issued its Order Dismissing Petitions. Therein, PERC found appellant's exception that section 447.203(2) was not controlling meritless and determined that the statute clearly and unambiguously set forth that the Boards of Trustees were deemed the public employers. PERC further determined that the statute was not qualified in any manner that would suggest that it pertained only to boards created by legislative fiat and not by...