STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF PANAMA CITY, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1369RX
) PUBLIC EMPLOYEES RELATIONS, )
)
Respondent. )
)
FINAL ORDER
No final hearing was held in this cause. By joint stipulation of the parties this cause was submitted to the Hearing Officer upon stipulated facts and written memoranda. By their joint stipulation entitled Request to Dispense with Formal Hearing and for a Decision upon Written Pleadings the parties have been presumed to stipulate to the facts alleged in the Petition for Administrative Determination of the Invalidity of Florida Administrative Code Rule 39D-23.01.
FINDINGS OF FACT
The matters of fact being stipulated to by the parties are as follows:
The City of Panama City has enacted a "local option" ordinance pursuant to Section 447.603, Florida Statutes. The City Ordinance No. 933 created the Panama City Public Employees Relations Commission ("PC-PERC") to exercise jurisdiction over labor relations matters arising between public employers and public employees of the City of Panama City in lieu of the State Public Employees Relations Commission ("PERC"). This ordinance was approved by the State of Florida Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes following an order of the First District Court of Appeal in City of Panama City v. Florida Public Employees Relations Commission,
364 So.2d 109 (Fla. 1st DCA 1978) directing PERC to do so.
On June 6, 1979 PERC issued an order to PC-PERC pursuant to Florida Administrative Code Rule 38D-23.01(2), the subject of this proceeding. The order relies on language in the Rule in question, which provides that "upon failure of the local commission . . . to timely submit such modifications, the commission shall revoke approval of the local commission and shall assume jurisdiction over all matters in dispute pending before the local commission". Thus, whereas the order is directed to the local commission, the penalty for failure to comply with the order is revocation of approval of the City's local option ordinance itself.
Ordinance No. 933 gives the PC-PERC the sole power to adopt rules. Section 1.004(1) provides that the Commission "shall adopt, promulgate, amend or rescind such rules and regulations as it deems necessary and administratively feasible to carry out the provisions of this ordinance "
Ordinance No. 933 further makes the local commission an independent body, providing at Section 1.003(1) that "the Commission in the performance of its duties and powers under this ordinance shall not be subject to the control, supervision or direction by the City Manager or City Commission."
The City has no control whatsoever over whether, or to what extent, the Panama City Public Employees Relations Commission complies with PERC's order of June 6, 1979. That order, which is pursuant to Rule 38D-23.01, purports to provide for the revocation of approval of the local commission created by the City's ordinance within ninety (90) days unless PC-PERC complies with it.
By request dated August 17, 1979, the Petitioner filed a Request to Take Official Notice of certain orders of the Public Employees Relations Commission and of certain sections of Panama City Ordinance No. 933. Respondent having been noticed of that request and entering no opposition thereto and, further, Respondent having referred in its brief herein to certain of the orders for which official notice was requested (PERC Order dated July 23, 1979, Page 1 of Respondent's brief) the Request to Take Official Notice is granted, and those items 1-11 in that request are admitted into evidence and made a part of the record of this proceeding.
By order of the Public Employees Relations Commission dated July 23, 1979, the order of that same Commission dated June 6, 1979, and referred to in paragraph 1(b) above was vacated to allow the City of Panama City to make certain alleged necessary amendments to its local option ordinance and for such amendments to be approved by the Public Employees Relations Commission. By order dated July 19, 1979, the Public Employees Relations Commission notified the City of Panama City that Chapter 447, Park II, Florida Statutes had been substantially amended and that the City's local option ordinance must be amended and submitted to PERC for review and approval within ninety (90) days. The order further noted that "[f]ailure by the City to timely submit modifications for review and approval by the Commission may subject the local option to revocation of approval and jurisdiction." Finally, the order recited Florida Administrative Code Rule 38D-23.01(2) as the authority for the foregoing requirement. That is the same rule being challenged in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of this cause.
Subsection 120.56(1), Florida Statutes (1979) provides that any person "substantially affected" by a rule may seek an administrative determination of its invalidity. Thus the threshold of standing is that the Petitioner must be "substantially affected" by the challenged rule. As discussed by the First District Court of Appeal in Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978), the concept of standing in an administrative proceeding includes the notion that Petitioner has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged rule, that Petitioner must show an injury which is accompanied by continuing present adverse effects, and by the notion that the substantial effect must be of sufficient immediacy and reality and not illusory speculation. In this cause Petitioner argues that the June 6, 1979 order of Respondent directed to the local commission (PC-PERC) which order is based on the rule challenged herein, substantially affects the City of Panama City because failure of the local commission to comply with the order could result in revocation of approval of
the City's local option ordinance itself. Although Respondent argues that such a possibility does not substantially affect the city's interest, Petitioner's argument is well founded except for one flaw. That flaw, as pointed out by Respondent in its brief, is that the June 6, 1979 order from PERC directed to the local commission has been vacated. Thus the penalty for failure to comply with the order, revocation of the city's local option ordinance, does not, as a result of the June 6, 1979 order, threaten Petitioner with continuing, present adverse affects of sufficient immediacy and realty to confer standing. However, the question of standing is not thus so simply resolved.
The order of the Public Employees Relations Commission dated July 23, 1979, vacating the June 6, 1979 order directed to the local commission was entered as the result of a third order by the Public Employees Relations Commission pertinent to this proceeding. The third order, dated July 19, 1979, notes that Chapter 447, Part II, Florida Statutes was substantially amended, notifies the City of Panama City that its local option ordinance must be amended within ninety (90) days and further notes that failure by the city to timely submit modifications for review and approval by the Commission may subject the local option ordinance to revocation by the Commission. The order cites Florida Administrative Code Rule 38D-23.01(2) as its authority. The record reflects unequivocally that based upon the rule challenged in this proceeding, the Public Employees Relations Commission has entered an order requiring certain actions of Petitioner, and threatening revocation of approval of Petitioner's local option ordinance upon the failure of Petitioner to comply with the order. Respondent's order is immediate and real and has continuing present adverse effects upon Petitioner as a result of its threat to revoke approval of the local option ordinance should Petitioner fail to comply with the order. The authority cited by PERC for its order being the rule challenged herein, Petitioner is substantially affected by the challenged rule and has standing to pursue this action.
The first ground alleged by Petitioner for the invalidity of the subject rule is that PERC has the authority only to review and approve local ordinances prior to becoming law. Petitioner argues that PERC has not been granted any authority or jurisdiction to review local provisions subsequent to initial approval. That question has been resolved by the courts. In City of Pensacola v. Florida Public Employees Relations Commission, 358 So.2d 589, 590 (Fla. 1st DCA 1978), the court stated that PERC has the authority to order a city to amend its local option ordinance to bring the provisions and procedures of that ordinance into substantial compliance with Chapter 447. See also City of Panama City v. Florida Public Employees Relations Commission, 364 So.2d 107 (Fla. 1st DCA 1978).
The second ground alleged by Petitioner for the invalidity of the subject rule argues that only public employers are required by Section 447.603, Florida Statutes, to apply to PERC for review and approval of their provisions and procedures. Petitioner argues that local commissions are not required to apply for review or approval of their rules to PERC. The court in City of Panama City v. Florida Public Employees Relations Commission, supra, at lll has disposed of this issue. In that case the court, commenting on deficiencies in a local option ordinance, noted that the ordinance was deficient in part because it contained" . . . a clause providing that all rules of the local commission became effective upon City Commission approval, without providing for Commission approval as required by Section 447.603 of the Act and Fla. Adm. Code Rule 8H- 7.08... ." The statute and rule cited in the preceding quotation are sufficiently similar to the statute and rule presently in force and being challenged herein. In City of Panama City the court upheld the notion that the
local commission must, pursuant to Section 447.603, Florida Statutes, submit its rules to PERC for approval. Rule 38B-23.01 requires that a local commission submit its rules to PERC for review and approval upon their adoption or modification. Such a requirement has already been upheld by the court.
The third ground alleged for the invalidity of the challenged rule by Petitioner is that in Paragraphs 2 and 3 of the challenged rule it requires not only that the provisions and procedures of the public employer and local commission be substantially equivalent to Chapter 447, Part II Florida Statutes, but also requires that they be substantially equivalent to the rules of the Public Employees Relations Commission. Section 447.603, Florida Statutes, (1979) provides that the provisions and procedures adopted by a city in the creation of a local Public Employees Relations Commission must "... effectively secure to public employees substantially equivalent rights and procedures as set forth in this part." The reference in the foregoing language is to Chapter 447, Part II, Florida Statutes. Nowhere does the statute give PERC the authority to require that the subject provisions and procedures be substantially equivalent to PERC's rules. Rather, the statutory requirement is that the provisions and procedures be substantially equivalent to Chapter 447, Part II, Florida Statutes. Thus, to the extent that Rule 38D-23.01 requires that the provisions and procedures adopted by a local government must be substantially equivalent to the rules of the Public Employees Relations Commission, the rule is an invalid exercise of delegated legislative authority.
The fourth and final ground alleged by Petitioner for the invalidity of the subject rule is that there is no statutory authority for the provision in the challenged rule that failure to submit the subject provisions and procedures to PERC for approval may result in revocation of approval of PERC of the entire ordinance and assumption of jurisdiction by PERC over all matters and disputes pending before the local commission. It is true that the statute, Section 447.603, Florida Statutes, does not specifically spell out the authority in PERC to revoke approval of the local commission and assume jurisdiction over all matters then pending before the local commission. However, that authority can properly be inferred from the language of the statute.
The statute says that "[p]rior to such provisions and procedures becoming law, the public employer shall apply to the commission for review and approval as to whether local provisions or procedures, or both, are substantially equivalent... ." Section 447.603, Florida Statutes, (1979). Thus the statute, in effect, gives to PERC the authority to create, or at least approve the creation of, the local commission and its provisions and procedures.
The Second District Court of Appeal in Public Employees Relations Commission v. The City of Naples 327 So.2d 41 (Fla. 2nd DCA 1976) confirms that PERC's approval of the provisions and procedures established by a city's ordinance is required before that city is entitled to assume jurisdiction of the Public Employees bargaining procedure. Thus PERC's approval is a condition precedent to the effectiveness of any ordinance. The First District Court of Appeal in State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979) in dealing with the revocation of a teacher's certificate held by an instructor in a community college, found that the power of the State Board of Education to issue a certificate for community college teachers necessarily and by fair implication included authority to specify conditions under with such certificates would be held and revoked. The logic which prevailed in that case must prevail here.
It would be illogical to provide from PERC has the responsibility of breathing life into the local commissions by its approval of their provisions and procedures and the continuing responsibility of making certain those provisions and procedures remain substantially equivalent without giving PERC the means by which to ensure compliance with the law. Thus, as the statute provides for PERC to give life to the local commissions and the local ordinances, the fair implications of that statute includes the authority to specify the conditions under which that life may be taken away.
Having established that PERC may revoke its approval of the local commission and the law abhorring a vacuum, it is further a fair implication of the statute that upon abolishment of the local commission PERC would assume jurisdiction over all matters and disputes then pending before the local commission. Thus, the challenged rule, to the extent that it provides for the revocation or approval of the local commission and the assumption of jurisdiction by PERC over all matters and disputes then pending before the local commission is not an invalid exercise of delegated legislative authority.
ORDER
Therefore, based upon the foregoing it is hereby ORDERED:
To the extent that Rule 38D-23.01 requires that a local option ordinance or rules of a local commission be substantially equivalent to the rules of the Florida Public Employees Relations Commission, the challenged rule is an invalid exercise of delegated legislative authority.
Except as provided in Paragraph 1 above, Rule 38-D-23.01 is a valid exercise of delegated legislative authority.
DONE and ORDERED this 25th day of August, 1980, in Tallahassee, Florida
CHRIS H. BENTLEY
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
904/488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1980.
COPIES FURNISHED:
Thomas W. Brooks General Counsel
Public Employees Relations Commission
2600 Blair Stone Road Suite 300
Tallahassee, Florida 32301
John-Edward Alley, Esquire Alley and Alley, Chartered
205 Brush Street
P.O. Box 1427
Tampa, Florida 33601
Rowlett W. Bryant
Sale, Bryant, Daniel, Thompson & Kurvin
P.O. Box 426
Panama City, Florida 32401
Carroll Webb
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud Department of State Room 1802, The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 25, 1980 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 25, 1980 | DOAH Final Order | Challenged rule is invalid in requiring local option ordinances be equivalent to rules of PERC--otherwise, it is a valid rule. |
