AMENDED JURISDICTIONAL BRIEF OF APPELLANT BOB WHITE, SHERIFF OF PASCO COUNTY

IN THE SUPREME COURT OF FLORIDA BOB WHITE, SHERIFF OF PASCO COUNTY, Appellant, Case No.: SC11-445 vs. L.T. No.: 1D09-3106 (First DCA) FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Appellee. / ON APPEAL FROM A FINAL ORDER OF THE DISTRICT COURT OF APPEAL OF FLORIDA, FIRST DISTRICT AMENDED JURISDICTIONAL BRIEF OF APPELLANT BOB WHITE, SHERIFF OF PASCO COUNTY Wayne L. Helsby R.W. Evans Mark E. Levitt ALLEN, NORTON & BLUE, P.A. Bona M. Kim 906 North Monroe Street ALLEN, NORTON & BLUE, P.A. Tallahassee, FL 32303 1477 West Fairbanks Avenue Suite 100 Winter Park, FL 32789 Attorneys for Appellant, Bob White, Sheriff of Pasco County

TABLE OF CONTENTS Page TABLE OF CONTENTS... TABLE OF CITATIONS... ii iii STATEMENT OF THE CASE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT. 4 I. The Supreme Court should exercise its discretionary jurisdiction in this case, because it affects a class of constitutional officers. 4 CONCLUSION.... 10 CERTIFICATE OF SERVICE... 12 CERTIFICATE OF COMPLIANCE... 13 ii

TABLE OF CITATIONS FEDERAL CASES Hufford v. Rodgers, 912 F. 2d 1338 (11th Cir. 1990)... 8, 9 STATE CASES Beard v. Hambrick, 396 So. 2d 708 (Fla. 1971)... 8 Demings v. Orange County Citizens Review Board, 16 So. 3d 604 (Fla. 5th DCA 2009)... 5 In re Advisory Op. to the Governor, 213 So. 2d 746, 748 (Fla. 1968).. 9 Weitzenfeld v. Dierks, 312 So. 2d 194 (Fla. 1975)... 5 FLORIDA CONSTITUTION Florida Constitution, Article V, 3(b)(3)... 4 Florida Constitution, Article VIII, 1(d)... 4, 5 FLORIDA STATUTES Fla. Stat. 30.53... 5, 6, 8 Fla. Stat. 447.203... 7 Fla. Stat. 447.203(2)... 6 iii

Fla. Stat. 447.203(9)... 7 Fla. Stat. 447.203(10)... 1, 4, 9 Fla. Stat. 447.309(1)... 7 Fla. Stat. 951.061... 8 OTHER AUTHORITIES Florida Rule of Appellate Procedure 9.030(2)(A)... 2 Florida Rule of Appellate Procedure 9.030(2)(A)(iii) 4 Florida Rule of Appellate Procedure 9.100(l). 12 Florida Rule of Appellate Procedure 9.120(d) 1 iv

STATEMENT OF THE CASE This is an appeal of the First District Court of Appeal s ( First DCA ) December 14, 2010, Order which affirmed, per curiam, the Public Employees Relations Commission s ( PERC ) finding that the Board of County Commissioners for Pasco County ( County Commission ) is the appropriate legislative body for purposes of resolving issues at impasse stemming from collective bargaining between Appellant BOB WHITE, SHERIFF OF PASCO COUNTY (the Sheriff ) and Appellee FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC. ( FOP ). (See generally App x. 1 ) This case involves the construction of the term legislative body as defined by section 447.203(10), Florida Statutes. 2 Following an impasse in collective bargaining between the Sheriff and the FOP, the Sheriff asserted that he was the legislative body for the Pasco County Sheriff s Office ( PCSO ), and therefore, had the authority to resolve the collective bargaining issues at impasse. Id. at 2. The FOP disagreed, and based on its contention that the 1 Pursuant to Rule 9.120(d), Florida Rules of Appellate Procedure, the decision of the First District Court of Appeal is submitted herewith in the Appendix ( App x ). 2 Section 447.203(10), Florida Statutes, defines legislative body as: The State Legislature, the board of county commissioners, the district school board, the governing body of a municipality, or the governing body of an instrumentality or unit of government having authority to appropriate funds and establish policy governing the terms and conditions of employment and which, as the case may be, is the appropriate legislative body for the bargaining unit. 1

County Commission was the appropriate legislative body for the PCSO, filed an Unfair Labor Practice ( ULP ) claim against the Sheriff with PERC. Id. In resolving the dispute, PERC concluded that an entity may be considered a legislative body if it: 1) has the authority to appropriate funds; 2) has the authority to establish policy governing the terms and conditions of employment; and 3) as the case may be, is the appropriate legislative body for the bargaining unit. Using this threeprong test, PERC ultimately found that the County Commission, and not the Sheriff, was the appropriate legislative body for the PCSO. Id. at 2-3. In its affirmance, the First DCA held that the County Commission has the authority to enact disciplinary processes and procedures to which the Sheriff must adhere, thereby satisfying the second prong. Id. at 3-4. As for the first prong, the Court held that the [County Commission] appropriates the funds for the Sheriff s Office, and that as a constitutional officer within the executive branch, a sheriff has no such authority. Id. at 4. (emphasis supplied). The Sheriff moved the First DCA for a rehearing en banc of the panel s decision or to certify the legislative body issue to this Court as a matter of great public importance. The First DCA denied the motion and this appeal timely followed. SUMMARY OF THE ARGUMENT This Court has discretionary jurisdiction to review the decision of the First DCA. Fla.R.App.P. 9.030(2). The First DCA s ruling that a County Commission is 2

the legislative body for purposes of resolving an impasse between a sheriff and a union during the collective bargaining process expressly affects a class of constitutional officers: all similarly situated sheriffs in the State of Florida. By deciding that the County Commission is the legislative body for the Sheriff, the First DCA necessarily, and improperly, determined that the County Commission is the governing body of the Sheriff. As a result, the Court s opinion relegates the Sheriff to the status of a subservient county administrator, requiring him to represent the County Commission s views during the collective bargaining process. The First DCA s decision significantly undermines a sheriff s independent authority as a constitutional officer to govern the internal operations of his or her agency. As a result of the opinion of the First DCA, county commissions may dictate how sheriffs are to negotiate with unions during the bargaining process, because county commissions will ultimately resolve issues brought to impasse. This new authority will directly and negatively affect the ability of sheriffs to manage their agencies. The opinion also affects sheriffs with respect to their status as state or county officials, an issue critical to Eleventh Amendment immunity protection. Sheriffs have been previously recognized as county rather than state officials, such that Eleventh Amendment immunity does not apply. By characterizing sheriffs as constitutional officers within the executive branch of state government, the First DCA s opinion calls 3

into question the status of sheriffs within the constitutional framework of state and local government, and whether Eleventh Amendment immunity is now applicable. This Court should therefore exercise jurisdiction to entertain this appeal and resolve these issues. ARGUMENT I. The Supreme Court should exercise its discretionary jurisdiction in this case, because it affects a class of constitutional officers. The Supreme Court may review any decision of a district court of appeal that expressly affects a class of constitutional or state officers. Art. V, 3(b)(3), Fla. Const.; see also Fla.R.App.P. 9.030(2)(A)(iii). The First DCA s decision to affirm PERC s interpretation of the legislative body definition under section 447.203(10), Florida Statutes, will profoundly affect a class of constitutional officers, namely all similarly situated sheriffs within the State of Florida. In finding that the County Commission is the appropriate legislative body for the PCSO, the First DCA necessarily also found that the County Commission is the governing body of the PCSO. See 447.203(10), Fla. Stat. (a legislative body is the governing body of an instrumentality or unit of government ) (emphasis added). Such a finding significantly affects sheriffs as a class of constitutional officers because it is in direct conflict with their statutory mandate as defined by decisions of the appellate courts of this state, including this Court. See e.g. 30.53, Fla. Stat. The Sheriff is a locally elected constitutional officer in the State of Florida. 4

Art. VIII, 1(d), Fla. Const. As the chief law enforcement officer in the county, his independence in managing the internal operations of his agency is assured by Florida law. See Weitzenfeld v. Dierks, 312 So. 2d 194, 196 (Fla. 1975); 30.53, Fla. Stat. (providing that [t]he independence of the sheriffs shall be preserved concerning the purchase of supplies and equipment, selection of personnel, and the hiring, firing and setting of salaries of such personnel ). Moreover, as an independent constitutional officer, the Sheriff does not derive his authority from county commissioners, and is neither generally accountable to them for his conduct in office nor subject to their direction in the fulfillment of his duties. Demings v. Orange County Citizens Review Bd., 15 So. 3d 604, 610-11 (Fla. 5th DCA 2009). The Sheriff governs his own office, subject not to the county board, but to the county residents who vote him into office. See Art. VIII, 1(d), Fla. Const; Demings, 15 So. 3d at 610-11. The Sheriff also exercises considerable authority over the PCSO s finances and budget. See e.g., 30.53, Fla. Stat. (recognizing a sheriff s independence in selecting supplies and equipment). Indeed, this Court has recognized that a sheriff s authority to manage his or her agency s funding is a critical component of holding the office. See Weitzenfeld, 312 So.2d at 196. In Weitzenfeld, this Court acknowledged the sheriff s independence from interference by the county commission, holding that the internal operations of the 5

sheriff s office and the allocation of appropriated funds is a function which belongs uniquely to the sheriff. Id. A contrary ruling, held the Court, would do irreparable harm to the integrity of a constitutionally created office as well as violate the precept established by F.S. Section 30.53 and, in practical effect, gain nothing for the county. Id. Given the foregoing, it is clear that the Sheriff is in fact the governing body of his agency, and just as clear that the County Commission has no authority, statutory or otherwise, which would allow it to act as such a body for the PCSO. The First DCA s affirmance essentially disregards the Sheriff s independent authority to govern his office and permits the County Commission to dictate to a sheriff, through the collective bargaining process, policy decisions that are unique to the Sheriff and his expertise. Thus, in rebuffing the traditionally independent role that the Sheriff plays in running his own agency, the First DCA s holding affects all similarly situated sheriffs. Further, it is apparent from the First DCA s ruling that sheriffs will be affected during the bargaining process, because they will be required to represent a county commission s positions regarding terms and conditions of employment. Historically, a union has bargained with a sheriff as a public employer or his representatives regarding terms and conditions of employment. See 447.203(2), Fla. Stat. (defining public employer ). During the collective bargaining process, a sheriff, as the public employer, presents proposals to the union on matters such as leave accrual, take home 6

vehicles, off duty employment, and other terms and conditions of employment. The First DCA s opinion essentially (and improperly) interjects county commissions into this process, thereby reducing a sheriff s role during bargaining to that of a county manager rather than a public employer. Pursuant to section 447.203, Florida Statutes, the public employees bargaining agent (i.e., union), primarily interacts with the public employer s chief executive officer during the bargaining process. See 447.309(1), Fla. Stat.; see also 447.203(9), Fla. Stat. (defining chief executive officer as the person, whether elected or appointed, who is responsible to the legislative body of the public employer for the administration of the governmental affairs of the public employer ) (emphasis added). In bargaining, the chief executive officer is to consult with, and attempt to represent the views of, the legislative body of the public employer. 447.309(1), Fla. Stat. (emphasis added). In finding that the County Commission is the legislative body for the PCSO, the First DCA has effectively diminished the status of the Sheriff to the position of chief executive officer for purposes of bargaining. In order to satisfy his obligations under section 447.309(1), Florida Statutes, the Sheriff must now consult with the County Commission throughout the bargaining process in order to represent its views. Id. The First DCA s affirmance therefore impacts sheriffs as a whole by undermining their long-established independence with regard to setting the terms and conditions of 7

employment for their employees. Finally, in affirming PERC s Final Order, the First DCA stated its view that the Sheriff, as a constitutional officer within the executive branch, had no authority to appropriate funds. (See App x, 4.) (emphasis added) (internal citations omitted). The First DCA s designation of the Sheriff as a member of the state s executive branch, based primarily on a dated opinion, 3 ignores this Court s precedent which provides that the Sheriff is a county, not a state, official. The question of whether a sheriff is a state or a local official is hardly academic. Rather, it impacts the sheriffs as a class of constitutional officers regarding their immunity from suit in federal court. In Hufford v. Rodgers, 912 F.2d 1338 (11th Cir. 1990), the designation of a sheriff s standing as a county rather than a state official played the determining factor in the Eleventh Circuit s decision denying Eleventh Amendment immunity with respect to federal claims. Relying in part on this Court s decision in Beard v. Hambrick, 396 So. 2d 708 (Fla. 1976), the Eleventh Circuit found that sheriffs were county officials who were statutorily permitted to control the day-to-day operations of their office. Id. at 1341 (citing 30.53, Fla. Stat. (1987); 951.061, Fla. Stat. (1987) (county may designate the sheriff as the chief correctional officer)). The Eleventh Circuit discerned no intent for state officials to control or supervise the sheriff. Id. at 8

1341-42. Accordingly, the sheriff was wholly independent from the state with regard to federal claims, and was not entitled to Eleventh Amendment protection. Id. at 1342. The First DCA s affirmance casts doubt on the official status of Florida sheriffs. If sheriffs are considered to be part of the executive branch of state government, then Eleventh Amendment immunity protection under federal law should be afforded. Such an outcome would be contrary to the holding in Hufford. Thus, the designation of a sheriff s official status in state or local government affects a class of constitutional officers with respect to the issue of agency liability and whether Eleventh Amendment immunity applies. Given the foregoing, it is clear that the First DCA s affirmance of PERC s Final Order profoundly affects a class of constitutional officers, i.e., every Florida sheriff who must engage in collective bargaining. The First DCA s interpretation of the legislative body definition under section 447.203(10), Florida Statutes; its finding that the County Commission is the governing body of the PCSO; and its designation of the Sheriff as a part of the executive branch of the state significantly impact the longstanding interrelationship between a sheriff and a county commission. Further, as previously argued, this case drastically alters the nature of the office of sheriff, an office that has, until now, been considered to be independent with regard to its internal operations. (See App x, 3.) Given the effect of the First DCA s Order 3 In re Advisory Op. to the Governor, 213 So. 2d 746, 748 (Fla. 1968). 9

on similarly situated sheriffs, the Sheriff respectfully submits that the Supreme Court should exercise its discretionary jurisdiction over this case. CONCLUSION The decision of the First DCA expressly affects Florida sheriffs as a class of constitutional officers. This Court should therefore exercise its discretionary jurisdiction and entertain an appeal on the merits of the issues in this case. 10

Respectfully submitted this 28th day of March, 2011. /s/ R.W. Evans /s/ Wayne L. Helsby R.W. Evans Wayne L. Helsby Florida Bar No.: 198862 Florida Bar No.: 362492 revans@anblaw.com whelsby@anblaw.com ALLEN, NORTON & BLUE, P.A. Mark E. Levitt 906 North Monroe Street Florida Bar No.: 193190 Tallahassee, FL 32303 mlevitt@anblaw.com (850) 561-3503 Bona M. Kim (850) 561-0332 Facsimile Florida Bar No.: 0017354 bkim@anblaw.com ALLEN, NORTON & BLUE, P.A. 1477 West Fairbanks Avenue Suite 100 Winter Park, FL 32789 (407) 571-2152 (407) 571-1496 Facsimile Attorneys for Appellant Bob White, Sheriff of Pasco County 11

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing AMENDED JURISDICTIONAL BRIEF was furnished to the individuals at the addresses below via U.S. MAIL this 28th day of March, 2011. /s/ R.W. Evans R.W. Evans Attorney for Appellant Bob White, Sheriff of Pasco County Counsel for Pasco County Board of County Commissioners: Jeffrey N. Steinsnyder, Esquire jsteinsnyder@pascocountyfl.net County Attorney 7530 Little Road, Suite 340 New Port Richey, FL 34654 Counsel for Appellee Florida State Lodge, Fraternal Order of Police: T. A. Delegal, III, Esquire tad@delegal.net 424 East Monroe Street Jacksonville, FL 32203 Staff Attorneys for Florida Public Employees Relations Commission: William D. Salmon, Esquire bill.salmon@perc.myflorida.com Florida Public Employees Relations Commission 4050 Esplanade Way Tallahassee, FL 32399-0950 12

CERTIFICATE OF COMPLIANCE I certify that this brief conforms to the font requirements of Rule 9.100(l), Florida Rules of Appellate Procedure. /s/ R.W. Evans R.W. Evans Attorney for Appellant Bob White, Sheriff of Pasco County 13