Mayor Alvin Brown and the City of Jacksonville v. Frank Denton ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MAYOR ALVIN BROWN AND NOT FINAL UNTIL TIME EXPIRES TO
THE CITY OF JACKSONVILLE FILE MOTION FOR REHEARING AND
AND THE JACKSONVILLE DISPOSITION THEREOF IF FILED
POLICE AND FIRE PENSION
FUND BOARD OF TRUSTEES,
Appellants,
v. CASE NOS. 1D14-0443 & 1D14-0444
FRANK DENTON,
Appellee.
_____________________________/
Opinion filed October 21, 2014.
An appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.
Craig D. Feiser and David J. D'Agata, Assistant General Counsels, Jacksonville,
for Appellants Mayor Alvin Brown and the City of Jacksonville.
Robert D. Klausner, Stuart A. Kaufman, and Paul A. Daragjati of Klausner,
Kaufman, Jensen & Levinson, Plantation, for Appellant Jacksonville Police and
Fire Pension Fund Board of Trustees.
George D. Gabel, Jr., Timothy J. Conner, and Jennifer Mansfield of Holland &
Knight, Jacksonville, for Appellee.
ROBERTS, J.,
In this consolidated appeal, the appellants, Mayor Alvin Brown (the Mayor),
the City of Jacksonville (the City), and the Jacksonville Police and Fire Pension
Fund Board of Trustees (the Board), appeal an order granting summary final
judgment in favor of the appellee, Frank Denton (Denton). Finding no grounds for
reversible error, we affirm.
In February 2013, Randall Wyse, who was employed as the fire district chief
and who also served as the Chief Negotiator for the Firefighters’ Union – the
Jacksonville Association of Fire Fighters Local 122, IAFF (JAFF) – along with
several other plaintiffs, filed suit against the City and the Board in the United
States District Court for the Middle District of Florida. In March 2013, the City,
the Board, and the plaintiffs voluntarily sought mediation in the federal case. For
the next few months, several closed-door mediation sessions were held at a
stipulated mediator’s office in Gainesville, Florida. Although not parties to the
federal litigation, the JAFF and the Fraternal Order of Police Lodge 5-30 (FOP
and, collectively with JAFF, the Unions) attended the mediation sessions. No
party informed the federal court that the negotiations would entail collective
bargaining or that the provisions of the Florida Statutes and Constitution may
require such collective bargaining to be conducted in public. There was no public
notice of the mediation sessions nor was any transcript made of the proceedings.
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The end result of the private mediation sessions was a Mediation Settlement
Agreement (MSA), which, on its face, changed the specific, defined pension
benefits of City employees in the Unions. The signatories to the MSA included:
the Mayor’s Chief of Staff, General Counsel for the City, Wyse (who signed
“individually” and also as the President/Chief Negotiator of JAFF), the Executive
Director of the Pension Fund, legal counsel for the Pension Fund, legal counsel for
the Unions, and the President/Chief Negotiator of FOP as well as the remaining
federal plaintiffs. The parties were to use their best efforts to obtain approval from
their respected officials necessary for implementation of the MSA. It was also
undisputed that the parties intended to seek further mediation if the MSA were not
adopted.
In May 2013, the Mayor held a press conference announcing an agreement
on retirement reform with the Unions. An ordinance was subsequently introduced
to the City Council seeking approval of the MSA. In July 2013, the City Council
voted down the proposed ordinance and, therefore, decided not to adopt the MSA.
In August 2013, Denton, an editor of the Florida Times-Union newspaper in
Jacksonville, filed a verified amended complaint for declaratory and injunctive
relief in circuit court against the Mayor, in his official capacity, the City, and the
Board. The complaint alleged that the closed-door mediation sessions constituted
collective bargaining negotiations that, under section 447.605(2), Florida Statutes
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(2013), were conducted in violation of Florida’s Sunshine Law as codified in
section 286.011, Florida Statutes (2013). The complaint sought a declaration that
the MSA was void ab initio and that a Sunshine Law violation occurred and would
continue to occur were the mediation sessions allowed to continue. Finally, the
complaint sought an injunction prohibiting the defendants from adopting,
performing, or implementing the MSA and from engaging in future mediation.
Following motions for summary judgment on the issues, on December 31,
2013, the circuit court entered an order granting summary final judgment in favor
of Denton. The circuit court found that it had jurisdiction to determine whether
collective bargaining had been held in compliance with the Sunshine Law and to
enjoin further violations. The circuit court found that in negotiating the MSA, the
City and the Board made changes to the terms of the employee pension benefits,
which were a mandatory subject of collective bargaining, and, absent a clear
waiver, were required to be conducted in the sunshine. The circuit court found that
the Board acted as the Unions’ representative and bargaining agent in the
negotiations or the Unions themselves participated to some degree in negotiating
the MSA. As such, the circuit court held that the federal mediation sessions
violated the Sunshine Law, voided the MSA ab initio, and enjoined “the parties
from conducting further proceedings entailing collective bargaining of the police
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officer and firefighter pension funds in private outside of the sunshine.” The
circuit court further held,
The Local Rules for the Middle District of Florida require that
mediations be privileged. Given the parameters of the Sunshine Law
and its place within the Florida Constitution, however, it is
appropriate that the parties be ordered to inform a federal court that
they are obligated to comply with Florida’s Sunshine Law
requirements and further ordered to take all reasonable steps to seek a
waiver of the local federal rules in order to comply with this Court’s
judgment, the Constitution of the State of Florida, and applicable
Florida laws mandating Government in the Sunshine. If, after fully
complying with this Court’s judgment, the parties nevertheless are
ordered by the federal court to conduct mediations in private, the
Supremacy Clause of the United States Constitution requires that the
parties comply with the federal court’s order.
The appellants then individually initiated appeals, between them challenging
the circuit court’s jurisdiction, its determination that collective bargaining
occurred, its determination that the entities present at the mediation sessions had
the ability to collectively bargain pension benefits, and its determination that the
Board acted as the Unions’ bargaining agent. They also argued that the circuit
court’s order violated the rule of confidentiality of mediation sessions, principles
of comity, and the Supremacy Clause. We are not persuaded that any of these
issues require reversing Judge Wallace’s well-reasoned and sound order.
The Sunshine Law provides a right of access to government. See Art. 1, §
24, Fla. Const.; § 286.011, Fla. Stat. (2013). It was enacted in the public interest to
protect the public from “closed door” politics. See Pinellas Cnty. Sch. Bd. v.
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Suncam, Inc., 829 So. 2d 989, 990 (Fla. 2d DCA 2002) (citing Wood v. Marston,
442 So. 2d 934, 938 (Fla. 1983)). The Sunshine Law is to be liberally construed to
give effect to its public purpose, and exemptions should be narrowly construed.
See Bd. of Pub. Instruction of Broward Cnty. v. Doran, 224 So. 2d 693, 699 (Fla.
1969). In addition, it should be construed so as to frustrate all evasive devices.
See City of Miami Beach v. Berns, 245 So. 2d 38, 41 (Fla. 1971).
Chapter 447, Part II, Florida Statutes (PERA), governs collective bargaining
of public employees. Section 447.605(2), Florida Statutes (2013), provides:
The collective bargaining negotiations between a chief executive
officer, or his or her representative, and a bargaining agent shall be in
compliance with the provisions of s. 286.011.
Thus, once the collective bargaining process begins, whenever one side or
any of its representatives at any time meets with the other side or any of its
representatives to discuss anything relevant to the terms and conditions of the
employer-employee relationship, such a meeting is subject to the Sunshine Law.
City of Fort Myers v. News-Press Publ’g Co., Inc., 514 So. 2d 408, 412 (Fla. 2d
DCA 1987).
The matters here were presented to the circuit court in the context of
violations of the Sunshine Law. Considering and determining Sunshine Law
violations are within the circuit court’s purview. See § 286.011(2), Fla. Stat.
(2013) (vesting jurisdiction to enforce the public meeting requirements in the
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circuit courts). While the circuit court made some determinations regarding
collective bargaining, those determinations were not dispositive of any issues
particularly relating to the collective bargaining process itself so as to fall under
PERC’s exclusive jurisdiction. Rather, they constituted necessary threshold
determinations in the context of whether the mediation sessions triggered
application of the Sunshine Law. Cf. Miami Ass’n of Firefighters Local 587 v.
City of Miami, 87 So. 3d 93 (Fla. 3d DCA 2012) (finding that the union was
required to exhaust its administrative remedies with PERC before seeking relief in
circuit court where the claims against the City raised violations of both chapter
447, Florida Statutes, and the Sunshine Law).
The circuit court found that the Board acted as the Unions’ bargaining agent
in the mediation sessions, which, in the context of the Sunshine Law, was a proper
finding. The circuit court focused on the fact that section 447.605(2) requires
collective bargaining to be conducted in the sunshine when negotiations involve a
“bargaining agent.” Considering the definition of bargaining agent in section
447.203(12), Florida Statutes (2013), the circuit court found that it included more
than just PERC-certified bargaining agents as it also included the certified entities’
“representative.” Thus, the fact that the Board had not been formally designated as
the Unions’ bargaining agent did not necessarily mean that it did not function as a
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representative of the Unions so as to qualify as a “bargaining agent” for purposes
of Sunshine Law application.
With regard to whether collective bargaining occurred during the mediation
sessions, the circuit court found that the parties negotiated pension benefits, an
undisputed mandatory subject of collective bargaining. The circuit court
appropriately considered the parties that went in to the closed-door mediation
sessions and the end product, which by its terms made changes to employee
pension benefits. As further evidence of the changes made by the MSA, the circuit
court recognized that the Mayor held a press conference announcing an agreement
on retirement reform with the Unions. The fact that the MSA was tentative and
conditioned upon further approval does not cure any prior Sunshine Law violation
as the purpose of the Sunshine Law is to “prevent at nonpublic meetings the
crystallization of secret decisions to a point just short of ceremonial acceptance.”
Zorc v. City of Vero Beach, 722 So. 2d 891, 896 (Fla. 4th DCA 1998) (citing
Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)). The circuit
court’s findings with regard to the parties as well as the nature of the mediation
sessions were supported by the record such that they should not be disturbed on
appeal.
With regard to the remedy ordered, the circuit court took appropriate care in
recognizing the federal court’s supremacy and the limited scope of the Sunshine
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Law issue before it. The circuit court narrowly crafted its remedy to respect the
interplay between Sunshine Law principals and federal mediation.
We affirm the order on appeal under the broad public policy of Florida’s
Sunshine Law. We cannot condone hiding behind federal mediation, whether
intentionally or unintentionally, in an effort to thwart the requirements of the
Sunshine Law. Caution should be taken to comply with the Sunshine Law, and
compliance should be the default rather than the exception. See Gradison, 296 So.
2d at 477 (“The principle to be followed is very simple: When in doubt, the
members of any board, agency, authority or commission should follow the open-
meeting policy of the State.”). By holding closed-door negotiations that resulted in
changes to public employee’s pension benefits, the appellants ignored an important
party who also had the right to be in the room – the public.
AFFIRMED.
MARSTILLER and SWANSON, JJ., CONCUR.
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