Judges: Robert A. Butterworth Attorney General
Filed Date: 7/8/1999
Status: Precedential
Modified Date: 7/5/2016
Mr. Paul Rowell General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Mr. John Slye General Counsel Department of Children and Families 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Dear Mr. Rowell and Mr. Slye:
You have asked for my opinion on substantially the following question:
Does an employee's contractual right to have a union representative accompany the employee to an "investigatory interview" include the right to have a union representative present during a segment of the interview requiring a discussion of information taken from a child abuse investigation that is confidential under section
In sum:
A union representative may not attend that portion of an investigatory interview between the agency inspector general and an employee requiring discussion of information taken from a child abuse investigation that is confidential under section
According to your letter, the Inspector General of the Department of Children and Family Services held a series of investigatory interviews regarding a breach of confidentiality at the Florida Abuse Hotline. The interviews required the presentation of documents and discussion of information deemed confidential pursuant to section
As requested by the employee, the Inspector General allowed union representatives to be present at the interview until such time as information deemed confidential by statute was discussed. During the interviews one employee requested the presence of a union representative when confidential information would be presented and discussed. The employee believed that information gained by the agency in the interview could be used in a disciplinary action against her. Based on the statutory prohibition on the release of confidential information, the Inspector General refused to allow the union representative to attend.
The employee filed a grievance under the collective bargaining agreement between the State and the American Federation of State, County and Municipal Employees. The grievance was appealed to the Department of Management Services, which sustained the grievance based on the employee's right to union representation under the collective bargaining agreement.
The Florida Constitution contains a right to work provision. Article I, section 6, provides:
"The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike."
This constitutional right includes the right to collectively bargain. Although they do not have the right to strike, public employees have the same right to collectively bargain as private employees.1
In implementing the provisions of Article
Thus, public employees have a contractual right to have a union representative present during a disciplinary investigation meeting if the employee is being questioned about his or her own alleged misconduct. The statutory provisions from which this right is derived, however, do not purport to limit specific rights created by other statutes.
Section
"In order to protect the rights of the child and the child's parents or other persons responsible for the child's welfare, all records held by the department concerning reports of child abuse or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s.
Certain exceptions are specifically set forth in the statute. Subsection (2) provides that access to these records, after the name of the reporter of the abuse has been removed, may be given only to designated persons, officials, and agencies. These include the Division of Administrative Hearings for purposes of any administrative challenge and the Public Employees Relations Commission for the purpose of obtaining evidence for appeals filed under section
No exception from confidentiality is contained in section
The confidentiality provisions of section
"The incidence of known child abuse, abandonment, and neglect has increased rapidly over the past 5 years. The impact that abuse, abandonment, or neglect has on the victimized child, siblings, family structure, and inevitably on all citizens of the state has caused the Legislature to determine that the prevention of child abuse, abandonment, and neglect shall be a priority of this state. To further this end, it is the intent of the Legislature that a comprehensive approach for the prevention of abuse, abandonment, and neglect of children be developed for the state and that this planned, comprehensive approach be used as a basis for funding."
The central abuse hotline created pursuant to section
Based on the interests of those involved, the authority upon which these claims are made, the involvement of children in this process and the nature of the information subject to disclosure, it is my opinion that the exemption from the Public Records Law expressed in section
Thus, it is my opinion that a union representative may not be present during that portion of an investigatory interview between the agency inspector general and an employee requiring discussion of child abuse investigation information that is confidential under section
Sincerely,
Robert A. Butterworth Attorney General
RAB/tgh
City of Tallahassee v. Pub. Emp. Rel. Com. , 410 So. 2d 487 ( 1981 )
Chaffee v. Miami Transfer Company, Inc. , 288 So. 2d 209 ( 1974 )
Tribune Co. v. Public Records , 493 So. 2d 480 ( 1986 )
DADE COUNTY CLASSROOM TEACHERS'ASS'N, INC. v. Ryan , 225 So. 2d 903 ( 1969 )
SEAG, FPD, NUHHCE, AFSCME v. State , 653 So. 2d 487 ( 1995 )