STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE LODGE F.O.P., )

)

Petitioner, )

)

and ) CASE NO. 75-238

) PERC CASE NO. 8H-RC-756-2018 PALM BEACH COUNTY (Sheriff's )

Office), )

)

Public Employer. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause in West Palm Beach, Florida on July 9, 1975.

APPEARANCES

For Petitioner: Irving Weinsoff, Esquire

Suite 804 Roberts Building

28 West Flagler Street Miami, Florida 33130

For Sheriff Frank J. McKeown, Jr., Esquire Heidtman: Cone, Wagner, Nugent

Johnson & McKeown, P. A.

507 North Olive Avenue

West Palm Beach, Florida 33402

Walter O. Lambeth, Jr. 2000 Gas Light Tower

235 Peachtree Street Northeast Atlanta, Georgia 30303

Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida

For Palm Beach Warren Dill, Assistant County Attorney County: Palm Beach County Courthouse

West Palm Beach, Florida

By this petition, as amended, the Florida State Lodge, Fraternal Order of Police (hereinafter referred to as Petitioner or Union) seeks a certificate of representation as the exclusive bargaining agent for all sworn personnel of the Palm Beach County Sheriff's Department, up to and including lieutenants. By their petition they would exclude civil deputies, bailiffs, captains and above.

Prior to the hearing several motions were filed by the respondent, including an Objection to Notice of Representation Hearing and Stay of Proceedings. By order dated June 24, 1975 the hearing officer denied the Stay of Proceedings and advised the Palm Beach County Sheriff's Department and Palm Beach County that the issue of who is the Public Employer would be considered at the hearing and all parties would be expected to present evidence on this issue. Copies of all motions filed are attached with the transcript and exhibits. At the hearing respondent's Objection to Notice of Representation Hearing and Stay of Proceedings was offered and accepted into evidence as Exhibit A.

William R. Heidtman, Sheriff of Palm Beach County, testified with respect to the duties, responsibilities, and authority of the sheriff. The sheriff is a constitutional officer in the State of Florida. He is responsible for the preparation of his budget, and hires and fires his deputies. The county appropriates money for the sheriff's budget, and must approve the budget initially; however, the County Commissioners can cut the budget in a major classification, but cannot change line items on the budget. Each month the commissioner hand over to the Sheriff one-twelfth of the annual budget that has been approved. In the event the commissioners approve less than the Sheriff feels he needs to properly run his department he may appeal to the State. All deputies exercise their authority through the authority of the Sheriff. The Sheriff has the sole determination with respect to wages, fringe benefits, leave, sick leave, and other personnel matters involving the deputies in the Sheriff's Department. The Board of County Commissioners has no authority to employ or to fire any deputy, or to discharge the Sheriff. Salaries of deputies are disbursed by the Sheriff.

The respondent generally contended that there was no public employer for the deputy sheriffs of Palm Beach County. He contended that the county was certainly not the public employer, but would not stipulate that if the deputy sheriffs were held to be public employees the Sheriff would be the proper public employer.

Exhibit 1, the Amended Petition; Exhibit 2, the Affidavit of Compliance for Registration of Employee Organization, and Exhibit 3, Affidavit of Compliance for Required Showing of Interest, were offered into evidence by the hearing officer. The respondent's objection to Exhibit 1 on the ground that it was not sworn to, and to Exhibits 2 and 3 on the grounds that they constitute hearsay, was overruled, and Exhibits 1, 2, and 3 were admitted into evidence. The parties stipulated that Petitioner is an employee organization as defined in Chapter 447, Florida Statutes.

The parties stipulated to the inclusion of all sworn personnel below the grade of lieutenant except the Harbor Patrol Sergeant, the Airport Patrol Sergeant, the sergeant in charge of school guards, the sergeant in charge of the range, and certain personnel designated as confidential or managerial. The parties stipulated that captains and above would be excluded from the proposed bargaining unit. They further stipulated that the patrolman who is the administrative assistant to the captain in charge of the Patrol Division be excluded from the proposed bargaining unit. The union did not stipulate to the exclusion of the various sergeants listed above. The parties further stipulated that the initial request from Lodge #50 for recognition occurred on May 14, 1975, and recognition was refused on June 2, 1975.

Accordingly, the positions in dispute involve basically the lieutenants and those sergeants in charge of the Harbor Patrol, the Airport Patrol, the School Guards, and the Range.

Captain Schultz, Director of Personnel and Training Division of the Palm Beach County Sheriff's Department, testified with respect to the duties and authorities of the various categories of personnel in the Sheriff's Department. All captains and above are staff officers. Some lieutenants who are in charge of divisions are also staff officers, and attend the staff meetings. In addition, during the absence of the captain of the Division, the lieutenant next in charge would attend staff meetings. At the staff meetings policy is developed, wages and benefits are discussed, the budget is discussed, as is all other matters affecting the Sheriff's Department. Each division is required to prepare its own budget for submission to the Sheriff. Although the Palm Beach County Sheriff's Department has never been involved in collective bargaining, or in a collective bargaining agreement, they would expect that each and every one on the staff would be involved in either collective bargaining or in carrying out the collective bargaining agreement. All division heads, including those who are headed by lieutenants, have the authority to suspend a patrolman for a maximum of 3 days. All supervisors have the authority to suspend a subordinate on an emergency basis when the conditions so warrant. However, this suspension is not considered to be punitive.

The sergeant in charge of the Harbor Patrol has four patrolmen under his supervision. He reports to the captain of the Patrol Division. The boats which he operates are located some twelve to fifteen miles from the captain's office. Accordingly, he is required to make day-to-day decisions in the operation of his unit without recourse to a higher authority.

The sergeant in charge of the Airport Unit has 5 corporals and 29 patrolmen under his command. He assigns his people their duties and has authority to suspend in an emergency situation, and he has the effective powers of recommendation for promotion and disciplinary action. His superior is located approximately one mile from the airport.

The sergeant in charge of the school crossing guards has 36 unsworn part time employees under his command. He assigns these school crossing guards to their stations and spends most of his time supervising their performance. His recommendations for disciplinary action are usually followed.

The sergeant in charge of the range has responsibility for the safety and maintenance of the range. He is in charge of all firing occurring on the range. He would have no direct authority over personnel using the range other than as it affects the safety of the personnel.

Exhibit 4, the organizational chart for the Sheriff of Palm Beach County, was admitted into evidence. Certain corrections were made thereon and certain names were written in by the hearing officer for clarification as the testimony developed with respect to this chart.

The Services Division and the Records Division are both headed by lieutenants. These lieutenants exercise the authority of division heads who are normally captains in other divisions. They have the authority to make effective recommendations regarding promotion and disciplinary matters, as well as authority to suspend a patrolman for up to 3 days. The Special Service Division is in charge of the Motor Pool, the Crime Lab, the Airport detachment, etc.

Another lieutenant in the Special Services Division acts as administrative aid to the officer in charge, and acts in his place during the latter's absence.

While so acting he has the authority of the division commander.

The Corrections Division has joint responsibility for administration and security at the jail. There are 41 sworn correctional officers, and two of these are lieutenants. A captain is in charge of the division.

In the Uniform Division Road Patrol, in addition to the captain in charge of the division, there are 5 lieutenants, 73 road Patrolmen, and 11 sergeants.

The Belle Glades substation has a captain in charge, with a complement of one lieutenant and 35 patrolmen. In the absence of the captain, a lieutenant is the officer in charge and exercises the authority of the division commander.

The Delray substation has a captain in charge and 6 sworn officers.

The Detective Division has a captain in charge, 4 lieutenants, and 22 detective sergeants.

The Communication Division is also headed by a lieutenant. It contains complaint writers who are civilians, 5 supervisors who are civilians, 1 sergeant, and 15 communications officers, primarily dispatchers who are not sworn. There is one lieutenant and 4 sergeants in this division who are sworn; the remainder of the personnel assigned are not sworn.

Exhibit 5, the Palm Beach Sheriff's Office Classification and Salary Schedule was received into evidence. On the classification sheet all those items indicated by a check mark in ink are sworn personnel, others are unsworn personnel. The bailiffs are sworn personnel. They have the power to arrest throughout the courthouse and exercise the general functions of peace officers. They carry weapons, and meet the requirements for the police standards board.

The civil deputies serve the processes of the court; they are also sworn personnel, and on occasions make civil arrests. Civil deputies and bailiffs were on the petition for exclusion by the union. When courts are not in session, bailiffs perform other functions relating to the Sheriff's Department, but do not engage in patrol. Over the past years there has been interchange between divisions in the Sheriff's Department, including those moving from civil division, or civil deputies, into various other sworn personnel functions. They move from bailiffs to Special Services, and from various divisions to civil deputies. All sworn personnel have the same benefits, such as vacation, sick leave, retirement, etc. All sworn personnel are on the high hazard program for retirement. This is a state operated program wherein persons in high hazard categories are entitled to earlier retirement.

In addition to those sergeants named in charge of independent units, the respondent further indicated that certain sergeants and other assistants were of a confidential nature and should be excluded for that reason. Included in this category was Sergeant Wambach, who is the administrative assistant to the chief of the Bureau of Law Enforcement. As such, he handles administrative matters that include confidential information crossing the desk of the chief of the division. The Bureau of Law Enforcement is headed by one of the two chief deputies of Palm Beach County. In addition to having authority on disciplinary matters, the Director of the Bureau of Law Enforcement would most certainly be involved in all matters pertaining to collective bargaining and carrying out collective bargaining agreements. The administrative assistant would therefore appear to have access to confidential matters. Sergeant Johnson is administrative sergeant to the captain in charge of the Patrol Division. This is the largest group of law enforcement personnel, and, as administrative sergeant to the captain in this division, Sergeant Johnson would have access to

all matters pertaining to discipline as well as carrying out any collective bargaining agreements. Sergeant Lisk is the Detective Sergeant assigned to the Personnel Division. He conducts background investigations on applicants involved in the hiring process. As assistant to the chief of the Personnel and Training Division he would have access to material concerning collective bargaining and negotiations.

During cross examination of Captain Schultz it was developed that Exhibit 4 was prepared recently and principally for the purpose of being introduced at this hearing. Changes in regulations are promulgated by the Sheriff.

Lieutenants do not have authority to hire or fire, nor do captains. On occasion lieutenants have prepared information which resulted in policy changes. In view of the military nature of the Sheriff's organization, a lieutenant would take over in the absence of the captain, and the sergeant would take over if the lieutenant was absent. Lieutenants would have some role in collective bargaining, and with carrying out collective bargaining agreements. The frequency of staff meetings vary; however, lieutenants and captains attend staff meetings. The lieutenants in charge of divisions and those acting in behalf of the captains who are absent attend staff meetings. Patrol supervisors are in command of the personnel within their patrol. Generally the senior man in the patrol is the one in charge. On occasion a patrolman would be acting in charge, and in so doing would be acting as a supervisor. By the nature of their work, all policemen and deputy sheriffs are called upon to make independent judgments; however, lieutenants' decisions would be considered more significant than the sergeants in this regard. Disciplinary matters involving a patrolman would be reported by a sergeant to the lieutenant. If beyond the capability of the lieutenant to properly administer the correction deemed necessary he would refer it to the captain.

Detective Lieutenant James Kersey was called as a witness by the Petitioner. He has been a member of the Palm Beach County Sheriff's Department for 9 years, starting as a patrolman. He was promoted to sergeant in 1968, when all detectives were promoted to sergeant. He attends staff meetings in the absence of his division commander. He has submitted recommendations involving tactical operations, and also in administration which has affected policy throughout the Department. He has been asked for input on wages and entered suggestions as to how salaries should be determined. He considers himself capable of serving as a lieutenant in any department of the Sheriff's Office.

The fundamentals are the same for all peace officer, and he would expect it to be a rather simple matter for all sworn personnel to transfer from one division to another. He considers himself a managerial type because he manages people. He feels his supervision of 8 to 24 people to be a significant role in personnel administration. He supervises their reports, investigations, checks on their presentations at the state attorney's office, etc. He makes out time schedules, submits reports, submits requests for training for these people, and he makes out yearly evaluations on them. He considers his main function to be that of a supervisor and rarely does he get involved in the duties of sergeants or below.

In accordance with 447.009(3)(a) Florida Statutes no recommendations are submitted.

ENTERED this 30th day of December, 1975 in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida

COPIES FURNISHED:

Irving Weinsoff, Esquire Suite 804 Roberts Building

28 W. Flagler Street Miami, Florida 33130

Frank J. McKeown, Jr., Esquire Cone, Wagner, Nugent, Johnson & McKeown, P.A.

507 North Olive Avenue West Palm Beach, Florida

Walter O. Lambeth, Jr., Esquire 2000 Gas Light Tower

235 Peachtree Street N. E. Atlanta, Georgia 30303

Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida

Warren Dill, Esquire Assistant County Attorney Palm Beach County Courthouse West Palm Beach, Florida

Docket for Case No: 75-000238

Orders for Case No: 75-000238