STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA POLICE BENEVOLENT )

ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1048

) PERC NO. 8H-RC-756-2142

ESCAMBIA COUNTY SHERIFF'S )

DEPARTMENT, ET AL, )

)

Respondent. )

)

RECOMMENDED ORDER

Hearings were held pursuant to notice in the Escambia County Courthouse, September 30, 1975 and May 11, 1975 in the above referenced cause before Stephen

1. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   This matter arose upon the RC Petition filed by Florida Police Benevolent Association, Inc. herein after referred to as Florida PBA, with the Public Employees Relations Commission, herein after referred to as PERC. This matter was referred by PERC to the Department of Administrative Hearings to hold public hearings on said RC Petition and to prepare a Hearing Officer's Report in the following issues:

   
   

   1. Whether the Respondent is a public employer within the meaning of Florida Statutes, Chapter 447.

      
      

   2. Whether the Petitioner is an employee organization within the meaning of Florida Statutes, Chapter 447.

      
      

   3. Whether there is a sufficient showing of interest as required for the filing of a Representation Election Petition under Florida Statutes, Chapter 447.

      
      

   4. Whether the employee organization is a properly registered organization with the Public Employees Relations Commission

      
      

   5. What is the appropriate unit of public employees in the cause before the Public Employees Relations Commission.

The first hearing was concluded at which the Petitioner moved for a continuance to amend the RC Petition to include as possible employees the County of Escambia and the Escambia County Civil Service Board in addition to the Escambia County Sheriff's Department. Said RC Petition was amended, and the second hearing was held on the Amended Petition.

APPEARANCES

For Petitioner: Larry Hill, Esquire

Sherrill and Moore Post Office Box 1792 Pensacola, Florida

Hobart O. Worley, Jr., Esquire Suite 302, Brent Building Pensacola, Florida 32501

For Respondent

(Escambia County): Jack H. Greenhut, Esquire

County Courthouse Pensacola, Florida

For Respondent

(Public Employer): Richard H. Merritt, Esquire

Lawyers Building Pensacola, Florida

PRELIMINARY MATTERS

Prior to the amendment of the RC Petition at the first hearing, a motion to cancel, dismiss or abate the proceedings was made by the Sheriff's Department on the following grounds:

1. The Petitioner had not requested recognition.

   
   

2. The Petitioner did not present signature cards to the to the employer substantiating a 30 percent showing of interest.

   
   

3. The Sheriff did not, as an interested and effected person, receive notice of the adoption of PERC's rules.

   
   

4. The Petition is in the name of the Florida PBA, but the individuals petitioning are members of Escambia County PBA.

The Hearing Officer denied said motion, finding that the grounds asserted in paragraphs 1, 2, and 3 above were without merit, and holding with regard to paragraph 4 that the Petition reflects that the Florida PBA is the Petitioner and that the requisite showing of 30 percent in behalf of said Petitioner has been made as determined by PERC.

At the second hearing the following motions were made by the party indicated:

1. The County moved to strike the Notice to the County on the grounds that the Notice was styled in "Florida Police Benevolent Association, Petitioner, and Escambia County Sheriff's Department, Public Employer" and therefore did not give adequate notice of the proceedings and that because the first issue, "Whether the Respondent is a public employer within the meaning of Florida Statutes, Chapter 447," was in the singular it did not fairly apprise the County of the issues involved. The Hearing Officer denied said motion.

   
   

2. The County and subsequently the Sheriff's Department moved for a determination of which of the Respondents was a Public Employer or to Dismiss

   the Movant as a Party. The Hearing Officer reserved ruling on this motion because it is one of the substantive issues which must be determined by PERC and not being procedural is beyond the scope of the Hearing Officer to determine.

   
   

3. The Civil Service Board moved the Hearing Officer to officially notice Chapter 75-369, Laws of Florida, as amended, which is the Escambia County Civil Service Board Act. The Hearing Officer granted this motion.

   
   

4. The Petitioner filed a request for the Hearing Officer to officially notice enumerated Florida Statutes. The Hearing Officer will note said statutes.

The Parties entered into the following stipulations:

1. The record of the first proceeding would be received as part of the record pertaining to the Amended Petition.

   
   

2. The employees of the solid waste department and convict guards at the County Road Camp are not employees of the Sheriff's Department and are not sought for inclusion in the unit sought by Petitioner.

ISSUE

The issues presented at the Hearing on the Amended Petition were the same presented in the original RC Petition, as stated above.

Who is the public employer?

1. This issue has been raised by Motion as indicated above. The Sheriff's Department argues that the Sheriff is not the Public Employer because his power to hire, fire, discipline and promote employees is subject to the provisions of the Escambia County Civil Service Board which was established by law. Section 3 of Chapter 75-369, Laws of Florida, clearly places all employers of the Sheriff's Department with the exception of the Sheriff, Secretary to the Sheriff, and Chief Deputy Sheriff within the classified service of Escambia County. Further, the Sheriff's Department argues that it does not have any control over its budget because the County Commissioners approve the Sheriff's budget. See Section 30.49, et seq., Florida Statutes.

   
   

2. The County Commission argues that although it appropriates the money for operation of the Sheriff's Department, that once appropriated the County Commission cannot control its expenditure. See Weitzenfeld v. Dierks, 312 So 2d 194.

   
   

3. The Civil Service Board argues that it is not the employer but a statutory creature established for the protection of employee rights. See Section 4, et seq., Chapter 75-369, Laws of Florida.

   
   

4. This issue as raised by the various motions mentioned above is presented for consideration by the Public Employees Relation Commission. Is the Petitioner an employee organization within the meaning of Florida Statutes, Chapter 447 and is there a sufficient showing of interest as required by Florida Statutes, Chapter 447?

   
   

5. The Sheriff's Department questioned whether the Petitioner in this cause was the Florida PBA or Escambia County PBA. The Hearing officer ruled that the RC Petition was filed by Florida PBA. Subsequently, the Sheriff's

   Department developed testimony that indicates that although the employees questioned executed signature cards, they could not recall at the time of the hearing whether they had designated Florida PBA or Escambia County PBA as their Agent for Collective Bargaining. It was clear that the employees questioned knew when they signed the cards which of the organizations they were designating, and that they considered the two organizations to be as one; Escambia County PBA being a chapter of the statewide organization to which they belonged. This issue is one which must be resolved by examination of the signature cards to determine whether Florida PBA has presented the requisite showing of interest.

   
   

6. As it might relate to the issue of who the public employer is, the employees questioned could not clearly recall who was designated the Public Employee on the signature cards.

   
   

   Is the Employee Organization properly registered with PERC?

   
   

7. Clearly the record indicates that Florida PBA is duly registered with PERC; however, there is no evidence to substantiate that Escambia County PBA is registered with PERC as that issue might relate to the issue of which organization provided the requisite showing of interest.

   
   

   What is the appropriate unit of public employees in this cause?

   
   

   ORGANIZATIONAL STRUCTURE

   
   

8. The Sheriff's Department of Escambia County has 240 employees to include the Chief Deputy, Lieutenants, Sergeants, Investigators, Law Enforcement Officers I's and II's, I.D. Technicians, Jailers, Mechanics, Secretaries and Support Personnel. The RC Petition, as amended, seeks to include all full-time Sheriff's Deputies of the rank or classification of Sergeant, I.D. Technician, Investigator, LEO II, and LEO I. Petitioner would seek exclusion of all unsworn employees of the Sheriff's Department, Lieutenants and the Chief Deputy (or Captain).

   
   

9. Within the Department, according to EXHIBIT 3 and EXHIBIT 2, there are

   167 sworn officers. There are 52 LEO I's, 63 LEO II's, 17 Sergeants, 5 I.D. Technicians, 1 I.D. Officer, 1 Chief I.D. Officer, 6 Lieutenants 1/ , 1 Captain, 4 Motorcycle Officers, 5 Task Force Officers, and 14 Investigators.

   
   

10. These personnel are organized with eight sub-areas some of which are combined, and make up the six Divisions within the Sheriff's Department: Administration, Investigation, Uniform/Traffic, Jail, Identification/Communications and Special Services. Each of these Divisions is commanded by a Lieutenant.

    
    

11. Uniform and Traffic Divisions, as indicated on EXHIBIT 2, are both under the supervision and direction of Lt. Ward, and for all intents and purposes are considered as one Division. Within Uniform Division, there are four shifts, A, B, C, & D, each commanded by a uniformed Sergeant.

    
    

12. Investigations Division has five Sergeants assigned and the 14 Investigators in the Department are assigned in this Division. These Investigators are primarily located in the crimes against property and crimes against persons Sections. There are five officers currently assigned to the Task Force according to EXHIBIT 3.

13. Administration Division has within it Civil Process Section which is charged with serving legal pleadings and processes within Escambia County. Several LEO I's and LEO II's are assigned these duties under the direction of Sgt. Dean who is the assistant to Lt. Penton, the Division Chief.

    
    

14. Jail Division is responsible for guarding the prisoners at the County Jail. The jailers are not sworn officers, however, there are sworn officers assigned to the jail. According to the testimony, new deputies are initially assigned to the jail prior to being placed on one of the uniformed shifts. The Petitioner does not seek to represent the unsworn jail personnel.

    
    

15. Identification Division primarily consists of those personnel who investigate crime scenes. This function is under the direct supervision of the Chief I.D. Officer, who has the same rank as a Lieutenant. However, the Chief

    I.D. Officer is subordinate to the Lieutenant in charge of the Division. There is also an I.D. Officer assigned who has less authority than a Sergeant, but more than an I.D. Technician. There are five I.D. Technicians assigned. The

    I.D. Officer is the most senior and most experienced of the I.D. personnel and is available to assist the I.D. Technicians with technical problems.

    
    

16. Beyond the sworn officers mentioned above, the only personnel assigned to Jail, Communications, and Special Services Divisions are the Lieutenants and Sergeants indicated on EXHIBIT 3 who perform basically administrative duties.

    
    

    DUTIES AND FUNCTIONS OF DEPARTMENT PERSONNEL

    
    

17. The Chief Deputy as the name implies is the chief assistant to the Sheriff. The position is at the grade of Captain, and while it is currently a civil service job, subsequent to the retirement of the incumbent, it will be reclassified to unclassified status. The position and relationship with the Sheriff was described by the the Sheriff as being the "Co-Sheriff."

    
    

18. Lieutenants are essentially administrative officers and do not generally engage actively in law enforcement duties and exercise line authority over deputies. Testimony was not presented regarding each Lieutenant's duties. They generally are charged with administration of their Division. They do provide input, and through their advice to the Sheriff participate to some extent in establishing Departmental policy. This is done through frequent but unscheduled conferences with the Sheriff. They were excluded from the unit for which Petitioner has petitioned.

    
    

19. Sergeants are assigned in all Divisions of the Department. Their duties and functions vary dependent upon their specific assignments. Sergeants in the Uniform Division are shift commanders. These are four shifts within this Division, each shift composed of 15 - 18 Deputies. Two to three deputies are assigned out from under the control of the Shift Sergeant and patrol outlying areas of the County. Therefore, the shift is generally composed of 14 Deputies who are directly supervised by a Shift Sergeant.

    
    

20. The duties and authority of the Shift Sergeant include assigning patrol areas, discipline of the shift, preparation of shift reports, approval of vacations and time off, and granting compensatory time and overtime. His authority is limited, as is the Sheriff's, regarding discipline; however, a Shift Sergeant may suspend personnel pending reinstatement or formal action by the Sheriff. The Shift Sergeant would approve or disapprove requests for transfers; however, the Sheriff or Captain would be the final decision maker. The Shift Sergeants spend 20-25 percent of their time preparing reports and

    attending to similar administrative duties. For this purpose, they use the Shift Sergeant's office. They spend the remainder of their time in the field. There they attempt to cover all the patrol area checking on the activities of their shift. They spend approximately 40 percent of their time in this function. The remaining time they spend on actual patrol, or backing up and providing assistance to their shift's deputies involved in a major law enforcement activity. Over 50 percent of the Shift Sergeant's total time is spent in administration or shift supervision.

    
    

21. Shift Sergeants go directly to the Chief Deputy (Captain) to seek guidance or report matters of importance, by-passing the Lieutenant in charge of Uniform Division. This Lieutenant works from 8:00 a.m. to 5:00 p.m., five days per week and spends his time basically on administration of the Uniform/Traffic Division.

    
    

22. Sergeants in the other Divisions do not exercise the same degree of supervision that Shift Sergeants do because their personnel are generally more experienced, have been with the department a longer period of time and do not need the same degree of supervision. Further, the work performed by the other Divisions does not lend itself to close supervision. The testimony revealed, for example, that the Sergeant in Crimes Against Persons was presently assigned to a special task force which worked primarily at night. Therefore, his ability to supervise the activity of this Section which works basically during the day was severely limited. The investigators in this Division conduct their follow- up investigations on the Uniformed Deputies' field reports in a largely unsupervised fashion, completing their activities without further reports to or direction from the Sergeant in charge. The Sergeants in investigations perform investigative activity and also administer their particular Section.

    
    

23. As stated above, the Sergeants assigned to the Jail and Communications Division perform primarily administrative duties. The Sergeant at the Jail commands one shift of jail personnel. The other shifts are commanded by the Senior LEO I or LEO II assigned.

    
    

24. The grade of investigator is between LEO II and Sergeant. These are generally experienced deputies with some years on the Department. Their duties, as mentioned above, are to conduct investigation into crimes reported by Uniformed Deputies. This would include interviewing victim, witnesses, and suspects and preparing investigative reports. An Investigator would present his findings to the prosecuting authority and testify before petit and grand juries. The testimony indicates that because of the nature of the work and the experience of the personnel involved there is little supervision by the Sergeants. This is also the situation in the Civil Process Section of the Administrative Division.

    
    

    LEO I and LEO II

    
    

25. The duties and responsibilities of these two positions are basically the same. Personnel in both classifications are assigned to several of the Department's Divisions but primarily they are found in the Uniform Division. Some LEO II's are assigned to Civil Process in Administrative Division and occasionally to the Jail Division. The LEO I position is the entry level position for sworn officers. After a year a LEO I is eligible for promotion to LEO II if there are vacancies. Both grades are primarily charged with enforcement of county ordinances and state laws. LEO I's and II's together with all the sworn officers mentioned above have arrest powers and carry badges and firearms.

    OTHER FACTORS

    
    

26. Leave, insurance, and retirement benefits are the same for all sworn personnel. Because of the hazards of the work, these benefits differ from unsworn employees of the Sheriff's Department. The salaries of Department Personnel are based upon a pay classification system prepared and controlled by the Civil Service Board. The Civil Service Board also prepares the list of five most eligible officers for promotion based on resumes prepared by Department personnel. From these lists, the Sheriff selects the personnel to be promoted. All Deputies must pass the Civil Service entry examinations, and become Civil Service employees. As Civil Service employees, they have the right to make grievances to the Board and to appeal disciplinary action taken against them by the Sheriff.

    
    

27. The Sheriff prepares the budget for the Department in conjunction with the Chief Deputy (Captain). Input is provided primarily by the Lieutenants.

    The budget is submitted to the County Commission who must approve the budget by category. The County Commission cannot, however, direct the Sheriff how to spend his appropriations after the budget is approved. On the other hand, the Sheriff cannot shift funds from one category of appropriation to another. One specific budget category deals with salary and personnel expense.

    
    

28. All sworn officers by virtue of their sworn duty to enforce the law, are engaged in duties which are more hazardous than other non-sworn personnel employed by the Department or other Civil Service employees. This additional hazard is reflected in their retirement, insurance and similar benefits.

This report respectfully submitted this 8th day of June, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ EXHIBIT 2 indicated 6 Lts. While EXHIBIT 3 indicates 4. Testimony was received regarding all the Lts. listed in EXHIBIT 2. Because of this discrepancy, the Hearing Officer assumes that one of these is designated "Finance Office."

COPIES FURNISHED:

Larry Hill, Esquire Sherrill and Moore Post Office Box 1792 Pensacola, Florida

Hobart O. Worley, Jr., Esquire Suite 302, Brent Building Pensacola, Florida 32501

Jack H. Greenhut, Esquire County Courthouse Pensacola, Florida

Richard H. Merritt, Esquire Lawyers Building

Pensacola, Florida

Docket for Case No: 75-001048

Orders for Case No: 75-001048