STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OSCEOLA COUNTY POLICE )

BENEVOLENT ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-302

) PERC CASE NO. 8H-RC756-2111

SHERIFF OF OSCEOLA COUNTY, )

)

Respondent. )

)

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 on July 7 and 8, 1975 at Kissimmee, Florida.

APPEARANCES

For Petitioner: Dale E. Anstine, Esquire

Post Office Box 2547 Orlando, Florida

For Respondent: Norman J. Smith, Esquire

Post Office Drawer 1549 Kissimmee, Florida

For Osceola: Murray Overstreet County Post Office Box 760

Commission Kissimmee, Florida SUMMARY OF THE PROCEEDINGS

By this petition, as amended, the Osceola County Police Benevolent Association, Inc. (PBA or Petitioner) seeks a certificate of representative as the exclusive bargaining agent for certified sworn deputy sheriffs of Osceola County, up through the grade of captain. The petitions filed in this cause varied with respect to the designation of the public employer. In the final amendment dated July 2, 1975. The petitioner designated the public employer as either the Sheriff or the county commission of Osceola County.

On June 27, 1975, a motion was received by the Hearing Officer designated Motion to Dismiss Amended Petition for Certification, By Special Appearance Only, and for Continuance. In this motion, Respondent contended that the amended petition, which then named the public employer as the Osceola County Sheriff's Department, was defective and that a special hearing was required to ascertain the proper public employer, if one existed. By order entered July 1, 1975, the Hearing Officer denied this motion and advised both the Sheriff and the County of Seminole that testimony would be taken at the scheduled representative hearing on the question of who is the public employer of the

deputy sheriffs of Osceola County and that both should be prepared to present evidence on this issue.

At the hearing the Sheriff submitted three additional motions which were marked as Exhibits "A", "B", and "C". The Motion for Continuance (Exhibit A) was denied and on the Objections to Amended Petition (Exhibit B) and Motion to Dismiss Ascended Petition (Exhibit C) the Hearing Officer reserved ruling. Both of these motions are hereby denied.

With respect to the public employer issue, the Petitioner simply contended that it had to be either the Sheriff or the county, or that they were joint public employers. The evidence submitted shows that the Sheriff has absolute power to appoint and remove deputies, to establish pay schedules for his deputies, to direct their activities, to establish leave and benefits policies, and to perform those functions normally associated with an employer. The county has no authority to affect or modify those prerogatives. The county must approve the budget for the Sheriff, and in so doing can approve a budget below that requested by the Sheriff for general classifications only, but cannot modify a specific line item. The Sheriff has the right to appeal to the Cabinet when the County Commissioners fail to approve the budget Submitted by the Sheriff. Upon appeal the Cabinet can direct the county to restore the funds, or a portion thereof, removed from the Sheriff's budget.

The Sheriff agreed that the county had little control over the activities of the office of the Sheriff. He contended, however, that he was a constitutional officer; that deputies were appointed and not hired; that the authority of the deputy is derived solely from that of the Sheriff; that the Sheriff was not a legal entity as defined by s. 447.002(2) Florida Statutes; and that, therefore, he could not be a public employer. The Sheriff further contended that since the deputies acted as alter egos of the Sheriff and were appointed, they could not be public employees. The funds with which the deputies and the Sheriff are paid are public funds, principally derived from the taxing authority of the county. The county forwards one twelfth of the Sheriff's annual budget to the Sheriff each month, and the Sheriff disburses the funds to the deputies that they receive as salary.

From the foregoing, the Hearing Officer concludes that there is adequate evidence from which the commission can determine the Sheriff has sufficient legal distinctiveness to properly carry out the functions of a public employer.

Exhibit 1, Amended Petition; Exhibit 1A, Amendment to Petition dated July 2, 1975; Exhibit 2, Affidavit of Compliance for Registration; and Exhibit 3, Affidavit of Compliance for Required Showing of Interest were admitted into evidence. Respondent's objection to Exhibits 2 and 3, on the ground that these affidavits constituted pleadings which were not served upon the parties, was overruled.

With respect to the appropriate bargaining unit, Petitioner modified its position that only those personnel named in the petition should be included in the appropriate unit, viz. road deputies, sergeants, lieutenants, and captains. During the course of the hearing the parties stipulated that all deputies, below the rank of sergeant, who have full power of arrest and are certified by the state, except those in the Corrections Section and Communications Section, would be included in an appropriate bargaining unit. The Petitioner contended that sergeants, lieutenants, and captains should be included in the appropriate bargaining unit. The Respondent initially took alternative positions that the appropriate unit would be comprised of patrolmen only, or that patrolmen should

be in one unit and higher grades in different units. However, under direct examination, Sheriff Murphy stated he would agree that sergeants could be included in an appropriate bargaining unit with patrolmen. Ten witnesses including the Respondent, were called by the Petitioner and one witness was called by the Respondent. Various exhibits relating to the Sheriff's Department were received into evidence. After considering all the evidence presented, I make the following findings of fact.

Technically, all deputies have arrest powers; however, the Sheriff's secretary has been a deputy sheriff for 14-16 years, and has not complied with the minimum training requirements of the Florida Police Standards Board which are required for peace officers to have full arrest powers. Deputies in the Corrections Section and Communications Section are not issued side arms and are not certified.

Each division is commanded by a captain or lieutenant and there are transfers between divisions.

The largest division is the Uniform Division, which provides the backbone of law enforcement in Osceola County. This Division provides around-the-clock patrols which cover the county. The Division is headed by a captain who runs the Division under general policy guidelines established by the Sheriff. Day to day operations are planned and carried out by the captain and his lieutenant without reference to the Sheriff. The Division is divided into four squads, each headed by a sergeant. The sergeant assigns zones to the four to six patrolmen in his squad. The sergeant supervises these patrols by maintaining a roving patrol himself throughout the county. He shifts these patrolmen to provide backup to another patrolman as the need arises. If one of his patrolmen violates rules and regulations he reports the offense to his lieutenant or captain.

Lieutenants and above have authority to suspend a deputy of lower rank from duty if the situation warrants. A sergeant can suspend one of his patrolmen if he reports for duty intoxicated. Both supervise the activities of deputies under them and make effective recommendations for disciplinary actions beyond which they have authority to take.

Article XIII of the existing bylaws of Osceola County PBA provides for grievance procedures whereby if one member of the PBA criticizes another member, without first reporting the incident giving rise to the criticism to the Board of Directors of the union, the member criticized may himself bring the criticizing member before the board and the board may expel him from the union. Those witnesses who appeared clearly indicated they would enforce the regulations of the department despite Article XIII. Petitioner offered to submit as a late filed exhibit a change to Article XIII of the bylaws which would modify this provision. This was accepted by the Hearing Officer as late filed Exhibit 8, was subsequently filed, and has been made part of this record. However, the president of the Petitioner testified that the grievance procedure would still apply if one member of the bargain unit took unjust disciplinary action against another member. Apparently the determination of the justness of the disciplinary action would remain with the PBA.

Salary schedules presently vary with the physical risk involved in the assigned duties, rank, longevity, and training required for the assignment. As a result, patrolmen and bailiffs with the same rank and longevity receive different compensation. All are covered by the same fringe benefits such as

annual or sick leave, and merit raises; however, those engaged in high risk duties may qualify for retirement sooner than those not so engaged.

All sworn deputies, except the Sheriff's secretary, have a community of interest which would indicate they could form an appropriate bargaining unit. Those of the rank of lieutenant and above have disciplinary and supervisory powers over those under them that militate against their being in the same bargaining unit with those deputies of the rank of sergeant and below.

Witnesses testified that they could not foresee any conflict if sergeants, lieutenants, and captains are included in the same unit with rank and file members. These same witnesses stated that they would uphold the law and carry out the rules and regulations of the Sheriff's Department. Most felt their primary duty was to the sheriff in matters involving the Department.

Absent any history of collective bargaining, no evidence was available regarding who would represent the public employer when bargaining is commenced. However, the Sheriff would be expected to obtain input, if not direct participation in carrying out these negotiations from any officer of the rank of lieutenant and above. These officers would be in a position to make recommendations with respect to matters of employment, upon which the employee may desire to negotiate.

Insufficient evidence was submitted from which to make a finding with respect to the managerial status of lieutenants and Captains in the Osceola County Sheriff's office.

In accordance with s. 447.009(3)(8) no recommendations are submitted. ENTERED this 7th day of November, 1975, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-000302

Orders for Case No: 75-000302