Deputy Court clerks can now collectively bargain: who's next?
In answering the certified question in the affirmative, the court appears to have ignited a union brushfire that is spreading throughout Florida. This article will address the Florida Supreme Court's holding in Service Employees International and discuss its potential ramifications for thousands of appointees and employees of constitutional officers in Florida, including deputy sheriffs.
Murphy v. Mack and its Prodigy
In Murphy v. Mack, 358 So. 2d 822 (Fla. 1978), the Florida Supreme Court was confronted for the first time with the question of whether appointees of a constitutional officer possessed collective bargaining rights under F.S. Ch. 447, part II ("the act"). In Murphy, the Florida State Lodge, Fraternal Order of Police filed an amended petition for certification with the Public Employees Relations Commission seeking to represent certain deputy sheriffs of the Palm Beach County Sheriffs Office for purposes of collective bargaining. The Osceola County Police Benevolent Association also filed a petition for certification seeking to represent all deputy sheriffs of Osceola County Sheriff Ernest Murphy as their exclusive bargaining agent.
Both Sheriff Heidtmen, Palm Beach County, and Sheriff Murphy, Osceola County, filed motions to dismiss alleging, inter alia, that a sheriff is not a public employer and the deputy sheriffs are not public employees under the act. The motions were subsequently denied. On appeal, the First District Court of Appeal held that the sheriff is a public employer within the definition set forth in [sections] 447.203(2), and further determined that although deputy sheriffs are officers, they are also public employees within the definition of F.S. [sections] 447.203(3) (1975).
On appeal, the Florida Supreme Court in Murphy agreed with the lower court that sheriffs are "public employers." More significantly, for purposes of this article, the court opined that deputy sheriffs are not "public employees" within the meaning of F.S. Ch. 447.203(3), in view of the fact that deputy sheriffs hold office by appointment rather than employment and are vested with the same sovereign power as the sheriff, who is the chief law enforcement officer of the county. Additionally, the court noted in its analysis that deputy sheriffs have never been identified as public employees by state courts in the past. Because of their unique common law historical background, the court noted that there was only one way to change their status: "In the absence of language including deputy sheriffs within the definition set forth in Chapter 447, Florida Statutes (1975), we find that they are not encompassed by the act."
Thus it was up to the legislature to specifically grant deputy sheriffs' collective bargaining rights.
The following year, in Ison v. Zimmerman, 372 So. 2d 431 (Fla. 1979), the Florida Supreme Court once again held that deputy sheriffs are not "public employees" within the contemplation of Ch. 447, noting that deputy sheriffs were distinguished from other employees of the sheriffs, such as secretaries.
PERC followed the holdings in Murphy and Ison in Brevard County PBA v. Brevard County Sheriff's Department, 7 FPER [paragraph] 12347 (PERC 1981), in which the commission voided a certification covering Brevard County Sheriff's Office deputies that had been issued prior to the decisions in Murphy and Ison. The commission held that these two Florida Supreme Court rulings were dispositive of the public employee status of deputy sheriffs. The First District Court of Appeal affirmed the commission's decision explaining that the determination in Murphy was not based simply on statutory construction, but also on interpretation of common law. In so ruling, the district court stated the deputies' status, having arisen out of common law, could be changed only by legislative action via state statute or appropriate local government law.
Not content with the Florida Supreme Court's determination regarding their lack of collective bargaining rights, certain Florida deputy sheriffs sought class action relief in federal court. In Sikes v. Boone, 562 F. Supp. 74 (N.D. Fla. 1983), aff'd mem, 723 F.2d 918 (11th Cir. 1983), the deputy sheriffs claimed that the Florida Supreme Court's holding in Murphy violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution in that similarly situated law enforcement officers are permitted to bargain collectively while deputies are not. They further alleged that the court's interpretation of the act in Murphy violated their right to collective bargaining guaranteed them by Fla. Const. Art. I, [sections] 6. Rejecting both contentions, the federal district court noted that the Florida Supreme Court did not arrive at its determination in Murphy in an arbitrary fashion. Rather, as the court explained, "the court examined the unique historical status of deputy sheriffs and concluded that they were not employees within the meaning of section 447.203, Florida Statutes. Deputy sheriffs are treated no differently than other appointees, that is, they do not have the right to engage in collective bargaining." For similar reasons the court rejected the deputies' claims under the Florida Constitution.
Application to Other Constitutional Officers
PERC, as well as Florida courts, had little difficulty in extending Murphy's holding and rationale to the deputies of other constitutional officers. In Federation of Public Employees v. Public Employees Relations Commissions, 478 So.2d 117 (Fla. 4th DCA 1985), PERC and the Fourth District Court of Appeal determined that deputy clerks of the 17th Judicial Circuit of Broward County were not public employees insofar as they were appointees pursuant to statutory authority. Similarly, the rationale of Murphy was found applicable to appointed deputies of property appraisers in Florida Public Employees Counsel 79, AFSCME v. Martin County Property Appraisers, 521 So.2d 243 (Fla. 1st DCA 1985). Finally, although not directly interpreting the act, the 11th Circuit in Beauregard v. Olsen, 84 F.3d 1402 (11th Cir. 1996), noted the significance of the appointee status of deputy tax collectors under Florida law.
So What Happened?
On April 1,1997, Patricia O'Brian was fired from her job as a clerk VI by the clerk of the circuit court in Orange County. O'Brian claimed that she had accumulated a good work record and was fired because she had met with a union official, signed a card supporting the union, and talked favorably about the union in the lunchroom with fellow workers. The clerk claimed that O'Brian had falsified time records. On Ms. O'Brian's behalf, the Service Employees Internal Union filed an unfair labor practice charge with PERC pursuant to the act, which protects a public employee's right to engage in collective bargaining activities. PERC summarily dismissed the charge, concluding that under existing case law deputy clerks are not considered "public employees" within the purview of the act.
On appeal, the Fifth District Court of Appeal recognized the holding in Murphy that deputy sheriffs are not "public employees," but questioned the wisdom of extending that holding to court clerks. The district court observed that employees of the clerk's office, unlike deputy sheriffs, do not tote guns and their work is routine and involves little discretion. The court opined, "We recognize the logical extension of Murphy (from deputy sheriff to deputy clerk) made by the Federation court based on its interpretation of the Murphy holding." For this reason, the court affirmed. However, the court suggested that the Supreme Court might wish to consider the certified question as one of great public importance.
Supreme Court Weighs in
Are deputy clerks, unlike deputy sheriffs, public employees within the contemplation of F.S. [sections] 447.203(3)? The Florida Supreme Court unequivocally answered the certified question in the affirmative.
In Service Employees International, the court determined that when collective bargaining rights of public employees are at issue, the plain language of the act controls and applies across the board to all public workers, regardless of their job title. The court noted that "deputy" is not included in the list of statutory exemptions from the definition of public employee. The court further expressed that the "public employee/managerial employee" dichotomy set forth in [sections] 447.203 is the bright line for determining coverage under part II. Accordingly, if an individual works as an employee in the ordinary sense of the word under the criteria set forth in [sections] 447.203(3), he or she is entitled to the protections of part II. If an individual works as a managerial level employee under the criteria set forth in [sections] 447.203(4) or falls within any of the other exceptions listed in [sections] 447.203(3), the protections of part II are inapplicable.
Not content with its refusal to extend Murphy's holding to deputy clerks of court, the court criticized Murphy's rationale. The court sent signals such as: "a deputy in days of yore was an appointed official who could stand in the place of a principle for most purposes"; "times have changed"; "the court in Murphy appears to have exhalted form over substance in contravention of the plain language and broad purpose of the act"; and "[t]he fact that deputy sheriffs are said to be `appointed' rather than `employed' is of little import under Chapter 447--the definition of `public employee' and section 447.203 draws no such distinction." Despite the above criticism, the court did not overrule Murphy, but refused to extend that holding to deputy clerks.
Law Enforcement Unions React
Before the ink in Service Employees International was dry, three law enforcement unions filed a total of seven representation certification petitions against the sheriffs for Flagler, Brevard, Palm Beach, and Pasco counties seeking to represent for purposes of collective bargaining various ranks of deputy sheriffs.
PERC found each of the petitions sufficient based on its conclusion that:
The Florida Supreme Court's recent opinion in Service Employees International Union, Local 16AFL-CIO v. Public Employees Relations Commission, et al., No. SC. 99427 (Fla. January 13, 2000) "casts doubt" as to the validity of its prior decision in Murphy v. Mack, 358 So. 2d 822 (Fla. 1978), holding that deputy sheriffs are not public employees. Therefore, we find this petition to represent deputy sheriffs for the purpose of collective bargaining sufficient in order to develop a record as to the deputies' duties and responsibilities vis-a-vis the sheriff himself.
Is Murphy v. Mack Still Good Law?
On March 6, 2000, the sheriff of Brevard County filed a petition for a writ of prohibition or, in the alternative, a petition for review of nonfinal agency action in the Fifth District Court of Appeal. The petition alleges that PERC has improperly asserted jurisdiction over the sheriff's appointed deputies, contrary to Murphy's holding, and that there is no other adequate remedy at law. On March 7, 2000, the Fifth District Court of Appeal entered an order directing the respondent, Coastal Florida PBA, to show cause why the petition should not be granted. PERC sua sponte filed a response to the show cause order suggesting that it is entitled to hold a hearing to determine its jurisdiction in light of the Supreme Court's decision in Service Employees International. The Florida Coastal PBA took a more direct approach in its response to the order to show cause by contending that the Supreme Court's decision in Service Employees International did in fact overrule Murphy. The Coastal Florida PBA further argued, inter alia, that a hearing is necessary for PERC to take evidence to determine whether the deputies in question "work as employees in the ordinary sense of the word."
In his reply to the PERC and Coastal Florida PBA responses, the Brevard County sheriff asserted that both PERC and the union ignored the import of the Murphy mandate: only the legislature can change the status of deputy sheriffs. The sheriff further pointed out that not only has the legislature revisited Ch. 447.203 11 times since the Murphy decision, it has on two occasions expressly refused to grant collective bargaining rights to this unique law enforcement position.
In 1993, the Florida Legislature amended the Police Officer Bill of Rights to include deputy sheriffs by name after the statute had been construed to exclude them. In enacting 1993 Fla. Laws Ch. 19, the legislature, however, added a provision that stated the law would not be construed to grant collective bargaining rights to deputy sheriffs. Similarly, in 1994 the legislature enacted F.S. [sections] 30.071, providing certain appeal rights to deputy sheriffs who allege political or discriminatory discharge. The act specifically provided that it did not grant to deputy sheriffs the right to collectively bargain.
While the initial order to show cause has temporarily stayed the proceedings involving the Brevard County Sheriff's Office, PERC has since entered orders staying the Palm Beach Sheriff's Office and Pasco County Sheriffs Office proceedings pending the resolution by the Fifth District Court of Appeal.(22)
The Supreme Court's refusal to extend the Murphy rationale to deputy clerks has touched off a flurry of union activity. The final chapter in this saga has yet to be written. What can be said at this point is the following: Deputy court clerks now possess the right to collectively bargain under the act. Furthermore, it is a safe bet that deputies for all other constitutional officers except deputy sheriffs will also have the right to bargain collectively. Yet to be decided is whether the Florida Supreme Court will overturn Murphy and give collective bargaining rights to deputy sheriffs without action by the legislature. This issue may be resolved by an appeal of the Fifth District Court of Appeal's decision on the petition for writ of prohibition or an appeal of PERC's final order on the merits of the pending representation petitions.
 FLA. STAT. ch. 447, part II implements the rights of public employees to collectively bargain under FLA. CONST. art. 1, [sections] 6 as construed in Dade County Classroom Teachers' Ass'n Inc. v. Ryan, 225 So. 2d 903 (Fla. 1969). FLA. CONST. art. 1, [sections] 6 provides as follows: "[sections] 6. Right to work. The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike."
 FLA. STAT. [sections] 447.203(2) (1975) defines a public employer as follows: "`Public employer' or `employer' means the state or any county, municipality, or special district or any subdivision or agency thereof which the commission determines has sufficient legal distinctiveness properly to carry out the functions of a public employer...."
 The term "public employee" is defined in FLA. STAT. [sections] 447.230(3) (1975) as: "`Public Employee' means any person, employed by a public employer except:
(a) Those persons appointed by the governor or elected by the people, agency heads, members of boards and commissions,
(b) Those persons holding positions by appointment or employment in the organized militia,
(c) Those individuals acting as negotiating representatives for employer authorities,
(d) Those persons who are designated as managerial or confidential employees."
 Murphy, 358 So. 2d at 857.
 Southern Freightways v. Reed, 416 So. 2d 26 (Fla. 1st D.C.A. 1982).
 Sikes, 562 F. Supp. at 81.
 Service Employees International Union v. PERC, 720 So. 2d 290 (Fla. 5th D.C.A. 1998).
 Id. at 291.
 Service Employees International Union v. PERC, 25 Fla. L. Weekly 534 (Fla. Jan. 13, 2000).
 FLA. STAT. [sections] 447.203(3) (1999) provides: "`Public employee' means any person employed by a public employer except:
(a) Those persons appointed by the Governor or elected by the people, agency heads, and members of boards and commissions,
(b) Those persons holding positions by appointment or employment in the organized militia,
(c) Those individuals acting as negotiating representatives for employer authorities,
(d) Those persons who are designated by the commission as managerial or confidential employees pursuant to criteria contained herein,
(e) Those persons holding positions of employment with the Florida Legislature,
(f) Those persons who have been convicted of a crime and are inmates confined to institutions within the state.
(g) Those persons appointed to inspection positions in federal/state fruit and vegetable inspection service whose conditions of appointment are affected by the following:
1. Federal license requirement.
2. Federal autonomy regarding investigation and disciplining of appointees.
3. Frequent transfers due to harvesting conditions,
(h) Those persons employed by the Public Employees Relations Commission,
(i) Those persons enrolled as graduate students in the State University System who are employed as graduate assistants, graduate teaching assistants, graduate teaching associates, graduate research assistants, or graduate research associates and those persons enrolled as undergraduate students in the State University System who perform part-time work for the State University System.
(j) Those persons who by virtue of their positions of employment are regulated by the Florida Supreme Court pursuant to s. 15, Art. V of the State Constitution."
 FLA. STAT. [sections] 440.203(4) (1999) provides: "`Managerial employees' are those employees who:
(a) Perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment in the performance of such jobs and to whom one or more of the following applies:
1. They formulate or assist in formulating policies which are applicable to bargaining unit employees.
2. They may reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations.
3. They have a role in the administration of agreements resulting from collective bargaining negotiations.
4. They have a significant role in personnel administration.
5. They have a significant role in employee relations.
6. They are included in the definition of administrative personnel contained in s. 228.041 (10).
7. They have a significant role in the preparation or administration of budgets for any public agency or institution or subdivision thereof.
(b) Serve as police chiefs, fire chiefs, or directors of public safety of any police, fire, or public safety department. Other police officers, as defined in s. 943.10 (1), and firefighters, as defined in s. 663.30(1), may be determined by the commission to be managerial employees of such departments. In making such determinations, the commission shall consider, in addition to the criteria established in paragraph (a), the paramilitary organizational structure of the department involved. However, in determining whether an individual is a managerial employee pursuant to either paragraph (a) or paragraph (b), above, the commission may consider historic relationships of the employee to the public employer and to coemployees."
 Service Employees International, 25 Fla. L. Weekly at S35.
 Coastal Florida Benevolent Association, Inc. v. Flagler County Sheriff's Office (deputies) RC-2000-002; Coastal Florida Benevolent Association, Inc. v. Flagler County Sheriffs Office (corporal/ sergeant) RC-2000-003; Coastal Florida Police Benevolent Association, Inc. v. Brevard County Sheriff's Office (deputy/ field training office/corporal and sergeant) RC-2000-13; Palm Beach County Police Benevolent Association, Inc. v. Palm Beach County Sheriff's Office (lieutenant) RC-2000-10; Palm Beach County Police Benevolent Association, Inc. v. Palm Beach County Sheriff's Office (deputy sheriff/corporal/sergeant) RC-2000-15; Florida State Lodge Fraternal Order of Police, Inc. v. Pasco County Sheriff's Office (corporal/detectives/ deputies/correctional corporal and correctional deputies) RC-2000-17; Florida State Lodge Fraternal Order of Police, Inc. v. Pasco County Sheriffs Office (sergeants/lieutenants/correctional sergeant/correctional lieutenant) RC-2000-18. Additionally, a support staff representation petition was also filed by the FOP with PERC. Florida State Lodge Fraternal Order of Police, Inc. v. Pasco County Sheriffs Office RC-2000-19. (secretary/clerk/switchboard operator/accountant II/computer programmer/dispatcher/mechanics/dispatcher supervisor/printer/crime scene technicians/protective investigators).
 Identical Notice of Sufficiencies were issued by PERC in RC-2000-002, RC-2000-003, RC-2000-013, RC-2000-10, RC-2000-15, RC-2000-17, RC-2000-18.
 Phillip B. (Phil) Williams, Etc. v. Coastal Florida Police Benevolent, Etc., Case No. 5D00-618.
 Respondent's Response to Order to Show Cause (March 20, 2000), Case No. 5D00-618.
 Id. at 8.
 Petitioner's Reply to Response from Respondent and Public Employees Relations Commission (March 28, 2000), Case No. 5D00-618.
 FLA. STAT. [sections] 112.535 (1995).
 FLA. STAT. [sections] 30.071(3) (1995).
 Florida State Lodge FOP, Inc. v. Pasco County Sheriff's Office, RC-2000-017 and RC-2000-018 (PERC March 28, 2000); Palm Beach PBA, Inc. v. Palm Beach County Sheriff's Office, RC-2000-010 and RC-2000-15 (PERC March 23, 2000); Coastal Florida PBA, Inc. v. Brevard County Sheriffs Office, RC-2000-013 (PERC March 10, 2000).
Leonard J. Dietzen III received his B.A. from the University of Central Florida in 1986 and a J.D. from the Florida State University College of Law, with honors, in 1989. He is a member of the Labor and Employment Section and the Florida Association of Police Attorneys. Mr. Dietzen has concentrated his area of practice exclusively to representing management in all areas of labor and civil rights liability matters. A considerable portion of his practice is representation of Florida sheriffs. He is with the firm of Powers, Quaschnick, Tischler, Evans & Dietzen, Tallahassee.
This column is submitted on behalf of the Labor and Employment Law Section, Robert J. Sniffen, chair, and F. Damon Kitchen, editor.