IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA

CASE NO.: 16-2013-CA-5799 DIVISION: CV-H

FRANK DENTON,

Plaintiff, vs.

MAYOR ALVIN BROWN, in his official capacity; THE CITY OF JACKSONVILLE; and THE JACKSONVILLE POLICE AND FIRE PENSION FUND BOARD OF TRUSTEES,

Defendants.

I

SUMMARY FINAL JUDGMENT IN FAVOR OF PLAINTIFF AS TO COUNT II

This action is before the Court on: (1) Plaintiffs Motion for Summary Judgment;

(2) Defendants Mayor Alvin Brown and the City of Jacksonville's Cross Motion for Summary

Judgment; and (3) Defendant Jacksonville Police and Fire Pension Fund Board of Trustees'

Cross Motion for Summary Judgment. By stipulation of counsel, the hearing on October 11,

2013, was limited to Count II of the Verified Amended Complaint. In Count II of his Verified

Amended Complaint, Plaintiff Denton seeks declaratory and injunctive relief, based on a finding

that the City and Pension Board violated provisions of Florida's Sunshine Law, section 286.011,

Florida Statutes, by engaging in confidential, non-public collective bargaining negotiations, in

which the Pension Board acted as a representative of the bargaining units representing the City's

police, firefighter and rescue personnel. The alleged collective bargaining activity took place in

the context of a mediation process ordered in a federal court civil action filed against the City by

an employee of the Firefighters' Union.

In opposition to the Plaintiffs Motion, Defendants argue that the federal court mediation

process did not entail collective bargaining and was therefore not subject to the Sunshine Law.

In support, Defendants contend that: 1) the Pension Board is not a bargaining unit or agent of the

police or firefighter and rescue employee unions; and 2) as a result of the agreement between the

City and the Pension Board, the unions waived their right to collective bargaining in favor of the

pension benefits granted to the employees under the Agreement. The Court has jurisdiction over

both the parties and subject matter of this action and makes the following findings of fact and

conclusions of law:

I. Standard of Review

Pursuant to Florida Rule of Civil Procedure 1.510(c), summary judgment shall be granted

if "the pleadings and summary judgment evidence on file show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law."

"Summary judgment evidence" consists of "affidavits, answers to interrogatories, admissions,

depositions, and other materials as would be admissible in evidence...." Fla. R. Civ. P.

1.510(c). The moving party carries the burden of proving that "no genuine issue of material fact

exists." Dade Cntv. Sch. Bd .v. Radio Station WOBA. 731 So. 2d 638,643 (Fla. 1999) (citations

omitted). Summary judgment should be exercised with restraint, and any doubts arc to be

resolved in favor of the nonmoving party. Clay Elec. Co-op.. Inc. v. Johnson. 873 So. 2d 1182,

1185 (Fla. 2003).

II. Undisnutcd Facts

The following facts are established without dispute in the record:

1, Plaintiff, Frank Denton, is a Florida citizen and is Editor of The Florida Times-Union, a

daily newspaper in Jacksonville, Florida.

2. The City of Jacksonville is the public employer of the city's police and firefighter force.

3. Mayor Alvin Brown ("Mayor Brown") is the mayor of the City of Jacksonville.

4. Mayor Brown is the cliief executive officer of the City of Jacksonville, a public

employer.

5. The Jacksonville Police and Fire Pension Fund Board of Trustees (the "Pension Fund

Board") is an independent agency of the City of Jacksonville that administers a defined

benefit retirement plan benefiting police officer and firefighter employees of the City of

Jacksonville, and is subject to section 286.011, Florida Statutes.

6. The Jacksonville Association of Fire Fighters, Local 122, IAFF (the "Fire Union" or

"IAFF") is an employee organization that represents some of the firefighters employed by

the City of Jacksonville.

7. Randy Wyse is the President and Chief Negotiator of the IAFF, and Paul Donnelly is its

counsel.

8. The Fraternal Order of Police Lodge 5-30 (the "Police Union" or "FOP") is an employee

organization that represents some of the police officers employed by the City of

Jacksonville.

9. Collectively, both the Fire and Police Unions are referred to as the "Unions."

10. In 1992, the Pension Fund Board sued the City for failing to make mandatory

contributions and misusing state premium tax revenues.

11. To settle the dispute, the parties entered into a written, bilateral contract, known as the

"Settlement Agreement," setting forth the respective duties, powers, and obligations of

the parties.

12. The Settlement Agreement and the enabling legislation were drafted and approved by the

Office of the General Counsel, adopted by the City Council and executed by then Mayor

Edward Austin.

13. The Settlement Agreement was amended on three occasions by Ordinances 93-229-329,

93-1983-1407, 97-1103-E. In each instance, the amended Settlement Agreement was

approved by the Office of the General Counsel, adopted by the City Council, and

executed by the Mayor.

14. In 2001, the Pension Fund Board and the City entered into a Restated Settlement

Agreement ("Restated Agreement"). The Restated Agreement was approved by the

Office of the General Counsel, adopted by the City Council, and executed by the Mayor.

15. The Restated Agreement has been amended three times, hi each instance, the Ordinances

were approved by the Office of the General Counsel, adopted by the City Council, and

executed by the Mayor. Those amendments were adopted by Ordinances 2003-303-E,

2003-1338-E, and 2006-508-E.

16. The Restated Agreement provides for pension benefits for police and firefighters.

17. The Restated Agreement is in effect for a definite duration, through September 30,2030.

18. The Restated Agreement states, "the parties agree that terms and conditions of the

[Pension] Plan [for police and firefighters ]are governed by state and local law, and the

terms of this agreement."

19. In 2009, the City demanded that the Unions collectively bargain pension benefits.

20. The IAFF disputed the City's ability to force it to negotiate pension benefits, because of

the existence of a 30-year agreement between the City and the Pension Fund Board.

According to the IAFF, the 30-year term of that agreement foreclosed the City from

demanding the Unions negotiate a level of pension benefits less than that set out in the

Restated Agreement between the City and the Pension Fund Board.

21. On January 29, 2010, the Fire Union and its President, Randall Wyse, filed suit in the

Circuit Court, Fourth Judicial Circuit, against the City and Pension Fund Board, seeking a

declaratory judgment regarding the parties' rights under the 30-year Restated Agreement.

(See State Court Complaint, Case Number 16-2010-CA-1494-XXXX-MA, attached as

Exhibit E to the Deposition of Cindy Laquidara taken 7/29/13. See also Answer and

Affirmative Defenses of the City of Jacksonville at ^ 12; Pension Fund Board's Answer

and Affirmative Defenses at f 12,)

22. In October 2012, at a publicly noticed meeting, the City and the Police Union engaged in

discussions on the subject of retirement benefits.

23. On November 19, 2012, the City declared an impasse in writing to the Police Union and

to the Public Employees Relations Commission ("PERC"), and requested that the PERC

appoint a Special Magistrate pursuant to Section 447.403, Florida Statutes.

24. On February 4,2013, the Fire Union voluntarily dismissed its state court civil action.

25. On February 4, 2013, the same day that the state court action was dismissed, Randall

Wyse, one of the plaintiffs in the state court action, filed suit against the City and the

Pension Fund Board in the United States District Court for the Middle District of Florida,

Jacksonville Division.

26. The federal court complaint alleged that the City's declaration of impasse was a

governmental taking and an impairment of contract (the 30-year Restated Agreement),

and that the City could not force the Unions to collectively bargain retirement benefits.

27. Notwithstanding the City's assertion that the federal court lacked any subject matter

jurisdiction over the case, on March 22, 2013, the City, Pension Fund Board, and the

Plaintiffs voluntarily and proactively sought mediation in the federal case, and filed a

Joint Motion for Stipulation of Mediator. No party informed the federal court that the

negotiations would entail collective bargaining or that the Florida Statutes or Constitution

may require that such collective bargaining be conducted in public. The federal court

issued a form order used for referring parties to mediation in routine cases.

28. Chris Hand and Cindy A. Laquidara acted as Mayor Brown's representatives at the

mediation. Mike Grogan, who was hired to represent the City of Jacksonville for

collective bargaining matters, also attended the mediation. (Video of Cindy Laquidara

appearing before the City Council Finance Committee on 3-5-2012, attached as Ex. H-l

to the Deposition of Cindy Laquidara; Deposition of Chris Hand at 21; Deposition of

Cindy Laquidara at 49.)

29. John Keane and Robert Klausner attended the mediation, and signed the Mediation

Settlement Agreement on behalf of the Pension Fund Board.

30. Although not parties to the federal court mediation, both the Police and Fire Unions

attended and participated in the mediation sessions. (See Mediation Settlement

Agreement at 2,4,11, Ex. P to the Deposition of Cindy Laquidara, at 2,10-11.)

31. Randall Wyse attended the mediation and signed the Mediation Settlement Agreement in

his capacity as president of the Fire Union.

32. The Fire Union is the certified bargaining agent for firefighters employed by the City of

Jacksonville.

33. Part of Randall Wyse's responsibilities as President of the local Fire Union is to execute

all contracts into which the Fire Union may enter, including labor contracts and

negotiations thereof. (Affidavit of Randall W. Wyse at ̂ 2.)

34. Steve Amos attended the mediation in his capacity as a representative of the Police

Union. (Affidavit of Steven J. Amos at % 15-16.)

35. Steve Amos signed the Mediation Settlement Agreement in his capacity as President and

Chief Negotiator of the Police Union. (Answer and Affirmative Defenses of the City of

Jacksonville at 129; Pension Fund Board's Answer and Affirmative Defenses at f 29.)

36. Paul Daragjati and Phil Vogelsang, legal counsel for the Police Union, also attended the

mediation; Paul Daragjati signed the Mediation Settlement Agreement on behalf of the

Police Union.

37. The Police Union is the certified bargaining agent for police and correctional officers

employed by the City of Jacksonville.

38. Neither the City nor the Pension Fund Board gave public notice of the mediation

conferences; moreover, the public was not permitted to attend, nor was any transcript

made of the proceedings.

39. The Mediation Settlement Agreement provides that the Unions would be added as parties

to the federal litigation for purposes of the settlement, under Rule 19, Federal Rules of

Civil Procedure, governing necessary parties.

40. There is not currently a federal court mediation order in effect. The Mediation

Settlement Agreement described above provides that, should the City, Unions, and the

Pension Fund Board be unable to obtain a judgment ratifying the Mediation Settlement

Agreement, they would jointly move the federal court to order further mediation.

41. The Mediation Settlement Agreement states that "this agreement, including all clauses

and recitals herein stated, will remain in effect and bind all Parties, including Rule 19

Defendants [the Unions], through September 30,2030."1

42. On May 8, 2013, Mayor Brown held a press conference announcing an agreement on

retirement reform with the Police and Fire Unions.

43. On May 28, 2013, Ordinance 2013-366 was introduced to the Jacksonville City Council

at the request of Mayor Brown, in order to comply with the City's obligations under the

Mediation Settlement Agreement to have it approved in its totality.

44. On July 23, 2013, the Jacksonville City Council voted down proposed Ordinance 2013-

366 and, therefore, decided not to adopt the Mediation Settlement Agreement.

III. Conclusions of Law

A. History

1. In 1937, the Jacksonville Police and Fire Pension Fund ("the Pension Fund") was created

under Chapter 18615, Special Acts of Florida, and codified in sections 121.101-.401 of the

City Ordinance.

2. The Pension Fund is a local-law defined-benefit pension plan governed by Article X, § 14,

Florida Constitution, and Chapters 112, 175, and 185, Florida Statutes. See Jacksonville

Charter § 22.08.

3. When the City of Jacksonville consolidated with Duval County in 1968, the Pension Fund

was continued, without interruption. See Jacksonville Charter § 18.04.

1 However, a motion to add the Unions as Rule 19 parties was not filed until after the Mediation Settlement Agreement was reached. The Unions have still not been added as parties to the federal lawsuit.

4. In 1992, the legislature readopted the entire City Charter of Jacksonville by chapter 92-341,

Laws of Florida. See Evans v. Bell. 651 So. 2d 162, 166 (Fla. 1st DCA 1995).

5. Under section 121.101, Jacksonville Ordinance Code, the control and administration of the

Pension Fund shall be exercised by the Board of Trustees, as "created and authorized by F.S.

Ch. 175 and F.S. Ch. 185, and Article 22.01 of the City Charter . . . . "

6. Article 22 of the City Charter, which created the Jacksonville Police and Fire Pension Board

of Trustees ("the Pension Fund Board") by Special Act, established a "body politic and

corporate" to administer the [Pension] Fund, and vested with the [Pension Fund] Board the

authority to invest and reinvest the assets of the [Pension] Fund. § 22.02 and § 22.04,

Charter of the City of Jacksonville.

7. Chapters 175 and 185, Florida Statutes, created a board of trustees responsible for

administering the municipal police and fire retirement plans, effective October 1986. See

§§ 185.05 and 175.071, Fla. Stat.

8. "In each municipality and in each special fire control district there is hereby created a board

of trustees of the firefighters' pension trust fund, which shall be solely responsible for

administering the trust fund." § 175.061, Fla. Stat. (2013). Florida Statutes establish an

identical foundation pertaining to the police officers' retirement fund. § 185.05, Fla. Stat.

(2013).

9. "All administrative bodies created by the Legislature are not constitutional bodies, but,

rather, simply mere creatures of statute.., [a]s such.. . [its] powers, duties and authority are

those and only those that are conferred expressly or impliedly by statute of the State . . . .

[a]ny reasonable doubt as to the lawful existence of a particular power that is being exercised

. . . must be resolved against the exercise thereof." City of Cape Coral v. GAC Utilities, Inc.,

of Fla.. 281 So. 2d 493,495-96 (Fla. 1973).

B. Collective Bargaining

10. The Jacksonville City Charter defines Collective Bargaining as:

"Collective Bargaining" means the performance of the mutual obligations of the public employer and the bargaining agent of the employee organization to meet at reasonable times and places to confer and negotiate in good faith, and to reduce to writing and to execute any written agreement with respect to collective negotiations concerning the wages, rates of pay, hours, working conditions, and all other terms and conditions of employment.

§ 19.101(i), Charter of the City of Jacksonville (emphasis added).

11. Pursuant to the collective bargaining provisions of the Charter of the City of Jacksonville,

[Pjublic employees shall have the right to be represented by an employee organization of their own choosing, to negotiate collectively through a certified bargaining agent with their public employer in the determination of the wages, rates of pay, hours, and all other terms and conditions of their employment, and to be represented in the determination of grievances arising thereunder.

§ 19.202, Charter of the City of Jacksonville.

12. Public employees shall have the right to refram from exercising the right to be represented.

§ 19.202, Charter of the City of Jacksonville.

13. The employee organization may certify a bargaining agent to engage in collective bargaining

with the employer. § 19.206(a), § 19.207, Charter of the City of Jacksonville.

14. Any collective bargaining agreement shall be reduced to writing and such agreement shall be

"signed by the negotiators for the public employer and the bargaining agent." § 19.208,

Charter of the City of Jacksonville.

15. Any collective bargaining agreement shall not exceed a term of more than three years.

§ 19.208, Charter of the City of Jacksonville.

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16. In 1986, the Florida legislature revised substantial portions of Chapters 175 and 185, Florida

Statutes, which are the general state laws governing municipal police and fire retirement

plans.

17. In 1969, the Supreme Court of Florida held that, with the exception of the right to strike,

public employees have the same rights of collective bargaining as are granted private

employees. Dade Cntv. Classroom Teachers' Ass'n v. Ryan, 225 So. 2d 903, 905 (Fla.

1969).

18. The Florida Legislature enacted Chapter 447, Part II, of the Florida Statutes, titled the Florida

Public Employees Relations Act ("PERA").

19. PERA embodies the right of full-time public employees to collectively bargain, articulating

who qualifies as a public employee, as a public employer, and the process for bargaining.

See §§ 447.203(2), 447.309, Fla. Stat.2

20. Section 447.01(2), Florida Statutes, states that "[i]t is here now declared to be the policy of

the state, in the exercise of its sovereign constitutional police power, to regulate the activities

and affairs of labor unions, their officers, agents, organizers and other representatives, in the

manner, and to the extent hereafter set forth."

21. Florida Statutes defines Collective Bargaining as:

"Collective Bargaining" means the performance of the mutual obligations of the public employer ami the bargainine agent of the employee organization to meet at reasonable times, to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employment...."

§ 447.203(14), Fla. Stat, (emphasis added).

2 PERA also created the Public Employee Relations Commission ("PERC") to handle disputes that arise between public employees and their employers. §§ 447.201,447.205,447.207, Fla. Stat.

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22. Moreover, Florida law dictates that any collective bargaining agreement shall not provide for

a term of existence of more than 3 years. § 447.309(5), Fla. Stat.

23. The right of public employees to collective bargaining "is a constitutionally protected right

which may be enforced by the courts, if not protected by other agencies of govermnent."

United Teachers of Dade. FEA/United AFT. Local 1974. AFL-CIQ v. Dade Cntv. Sch. Bd.,

500 So. 2d 508,510 (Fla. 1986) (citation omitted).

24. As a term or condition of employment, pension benefits are retirement benefits that are a

mandatory subject of collective bargaining. Scott v. Williams. 107 So. 3d 379, 396 (Fla.

2013); see Citv of Tallahassee v. PERC. 410 So. 2d 487, 491 (Fla. 1981); see generally

United Teachers of Dade, 500 So. 2d at 515 (Boyd, J., dissenting) ("the subject of rights and

benefits under retirement pension plans [canjnot be legislatively removed from the field of

collective bargaining.")

25. The Pension Fund Board and the City both argue that the negotiations leading to the

Mediation Agreement could not have been collective bargaining because the Unions, not the

Board, were the "bargaining units" certified by PERC. However, Florida law provides a

broader definition of a "bargaining agent" as compared to a "bargaining unit." A "bargaining

agent" means not only the employee organization certified by PERC but also its

representative. See § 447.203(12), Fla. Stat. Under Section 447.605(2), Florida Statutes, the

"collective bargaining negotiations between a chief executive officer, or his or her

representative, and a bargaining agent shall be in compliance with the provisions of Section

286.011 [the Sunshine Law]." The Pension Fund Board was undoubtedly acting as a

representative of the Unions in the negotiations over pension benefits. Accordingly, Florida

Statutes governing collective bargaining and the Sunshine Law required that the negotiations

12

leading to the Mediation Agreement be conducted in public, absent some controlling contrary

authority such as the City Charter or other special laws applying to the City.

26. Generally, a special law controls over a general law. Town of Palm Beach v. Palm Beach

Local 1866. 275 So. 2d 247, 249 (Fla. 1973). When two statutes conflict, however, courts

have the responsibility to harmonize and reconcile the statutes to find a reasonable balance.

Floyd v. Bentlev. 496 So. 2d 862, 864 (Fla. 2d DCA 1986). "It is a well-settled rule of

statutory construction that a special statute covering a particular subject matter is controlling

over a general statutory provision covering the same and other subjects in more general

terms; in such a situation the more narrowly-drawn statute operates as an exception to or

qualification of the general terms of the more comprehensive statute." IcL If the two statutes

cannot co-exist, the latest expression of legislative intent shall prevail. Id. This principle,

however, does not apply where the general statute shows a clear intention to repeal or

supersede all earlier local or special laws. Palm Beach Local 1866. 275 So. 2d at 249; see

Alvarez v. Board of Trustees. 580 So. 2d 151,153 (Fla. 1991).

27. Nothing in the City Charter overrides general laws related to collective bargaining. The

relevant City Charter provisions are consistent with general law regulating collective

bargaining. Accordingly, the City and unions remain subject to Florida Statutes governing

collective bargaining. Governing statutes material to Plaintiffs Sunshine Act claim include

the following: 1) the provision that pension benefits are employee rights subject to

mandatory collective bargaining. See, e.g.. Scott v. Williams, 107 So. 3d 379, 396 (Fla.

2013); 2) the definition of collective bargaining includes the negotiation of pension benefits,

not only by an appointed bargaining agent, but also by a union's "representative." See

13

§ 447.203(12), Fla. Stat.; and 3) collective bargaining agreements are limited to three-year

terms. See § 447.309(5), Fla. Stat.

28. Applying general law to the undisputed facts yields the conclusion that, in negotiating the

Mediation Agreement, the City and Pension Board were engaging in collective bargaining.

The City and Pension Board were negotiating pension benefits that were required by law to

be done through the process of collective bargaining. The Restated Agreement purported to

bind the City to provide defined pension benefits to the Police and Fire Union employees for

a fixed term of years. The Pension Board and the City were defendants in the federal court

action, and thus were principal parties to the Mediation Agreement, hi reaching the

Mediation Agreement, it is obvious that the Pension Board and the City necessarily

negotiated the terms of the Mediation Agreement that changed the specific, defined pension

benefits to be provided City employees in the Police and Fire Unions. In so negotiating, the

Pension Board was necessarily acting as a representative of the unions, and thus acted as a

"bargaining agent." Moreover, the Police and Fire Unions were present throughout the

mediation negotiations, or were signatories to the Mediated Settlement Agreement and, if the

Mediation Agreement had been adopted by the City Council, the unions were to be joined as

additional parties to the federal action for the purpose of carrying out the Mediation

Agreement. Accordingly, the undisputed evidence is that either the Pension Board acted as a

representative and bargaining agent of the unions, or the unions participated at least to some

degree on their own behalf, in negotiating the Mediation Agreement.

29. An important part of the Mediation Agreement was the making of significant changes to the

financial terms of the pension benefits to be provided the Police and Fire Union employees.

The police and fire union representatives stated that they did no actual negotiations. Viewing

14

the record in the light most favorable to Defendants, it is apparent then that the Pension

Board representatives must have negotiated such changes to the employee pensions on behalf

of the employee unions. Accordingly, the Pension Board necessarily acted as the employees'

representative. It therefore follows that the negotiations for the changes in the pension

benefits were negotiations over the terms of employee benefits that were required to be the

subject of mandatory collective bargaining. Consequently, absent a clear and unmistakable

waiver or exception, such negotiations were also subject to the requirement that they be

conducted in the sunshine. See § 447.605, Fla. Stat.

30. The Pension Fund Board and the City argue that the Restated Agreement, and subsequently

the Mediation Agreement, both represent a waiver by the employee unions of their right to

compel compulsory collective bargaining. These Defendants essentially argue that once the

City and Pension Fund Board entered into an agreement fixing pension benefits for the next

thirty years, employees were satisfied with the pension benefits set by the Agreement and

thus agreed to forgo their right to bargain collectively on pensions for the time period

covered by the Agreement. It is, after all, the employees or their union representatives who

have the right to insist on collective bargaining. In fact, the claim asserted by Wyse in the

federal court action is that union members are third-party beneficiaries of the Restated

Agreement, and any attempt by the Pension Fund Board and the City to reduce the pension

benefits in the Restated Agreement would amount to an unconstitutional impairment of a

contractual obligation.

31. Defendants' argument, however, misapprehends the nature of a waiver of the right to

collective bargaining. A waiver typically occurs when the parties collectively bargain certain

terms of employment, and in consideration of such an agreement, expressly agree that certain

15

other terms of employment would remain subject to change at the discretion of the employer;

moreover, such waiver must be clear and unmistakable. See Commc'ns Workers of Am., et

al.v. Citv of Gainesville. 65 So. 3d 1070 (Fla. 1st DCA 2011); Fla. Police Benevolent Ass'n.

Inc. v. Sheriff of Orange Cntv.. 67 So. 3d 400 (Fla. 1st DCA 2011); Citv of Winter Springs v.

Winter Springs Professional. 885 So. 2d 494 (Fla. 1st DCA 2004); Citv of St. Petersburg

Beach. 10 FPER If 15211,1984 WL 968558 (1984). The Restated Agreement and Mediation

Agreement are the antithesis of a waiver. Instead, these agreements lock the City into very

specific and defined pension benefits for a term of years. The negotiations leading to such

agreements were the opposite of a waiver and amount to collective bargaining through non-

traditional means. The fact that the Pension Fund Board was not a registered bargaining

agent does not change the outcome. It is apparent that, if the unions insist they did not

participate in the bargaining leading to the Mediation Agreement, then the Pension Fund

Board was acting as the Unions' "representative." Moreover, if the Pension Fund Board

should have been registered as an official bargaining agent, such failure to do so may perhaps

be grounds for regulatory action by PERC. Such action, however, would not change the

essential nature of the activity, as least for the purposes of applying the Sunshine Act that

mandates that collective bargaining activity be conducted in public. Otherwise, parties could

simply negotiate pension benefits using representatives other than their statutorily-designated

bargaining agents and call such negotiations and any resulting agreement the result of a

waiver of the union's right to collective bargaining. To allow such activity to be conducted

in private would violate the principle that evasive devices to circumvent the Sunshine Law

cannot be upheld. See Sch. Bd. of Duval Cntv. v. Fla. Publ'g Co.. 670 So. 2d 99, 101 (Fla.

1st DCA 1996).

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32. In short, the record shows that the Pension Fund Board engaged in collective bargaining with

the City, on behalf of the Unions, as their bargaining agent, when it negotiated pension

benefits in the 1991 Settlement Agreement and the 2001 Restated Agreement.

33. Because the pending federal case in Wyse includes an issue with the 30-year contract set

forth in the Restated Agreement, which encompasses the previously negotiated pension

benefits, the federal mediation sessions amounted to collective bargaining between the City

and the Pension Fund Board, acting as a representative of the Unions. Thus, the mediations

and negotiations therein were subject to notice and the procedures set forth in

Section 286.011, Florida Statutes.

34. Local government ordinances yield to inconsistent general law. Rinzler v. Carson, 262

So. 2d 661, 668 (Fla. 1972) (finding "an ordinance must not conflict with any controlling

provision of a state statute, and if any doubt exists as to the extent of a power attempted to be

exercised which may affect the operation of a state statute, the doubt is to be resolved against

the ordinance and in favor of the statute"). Moreover, there exists no ordinance or special

law that gives the City and the Pension Fund Board the power to collectively bargain. As

such, Florida's collective bargaining statutes and applicable case law are controlling in the

instant case.

C. Sunshine Law

35. The Sunshine Law is a codification of the long-standing principle of open government in

Florida, which was elevated to a constitutional right. The Sunshine Law provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action

17

shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

§ 286.011(1), Fla. Stat.; Art. I. § 24(b), Fla. Const.

36. The purpose of the Sunshine Law includes the protection of "the public's right to be present

and to be heard during all phases of enactments by governmental boards and commissions,"

and the principle that "the act should be accorded a liberal construction to give effect to the

public purpose and to frustrate evasive devices." Sch. Bd. of Duval Cntv. v. Florida Publ'g

Co.. 670 So. 2d 99, 101 (Fla. 1st DCA 1996) (emphasis added); see Zorc v. Citv of Vero

Beach. 722 So. 2d 891, 896 (Fla. 4th DCA 1998) rev, denied, 735 So. 2d 1284 (Fla.1999)

("The purpose of the Sunshine Law is 'to prevent at non-public meetings the crystallization

of secret decisions to a point just short of ceremonial acceptance.'") (citation omitted).

37. "In construing the statute, it is well settled that the Sunshine Law, enacted for the public

benefit, should be liberally constmed to give effect to its public purpose while exemptions

should be narrowly construed." Zorc, 722 So. 2d at 897.

38. Section 447.605, Florida Statutes is a provision within Florida's collective bargaining laws

for public employees that specifically provides: "The collective bargaining negotiations

between a chief executive officer, or his or her representative, and a bargaining agent shall

be in compliance with the provisions of s. 286.011." §447.605(2), Fla. Stat, (emphasis

added); see also Answer and Affirmative Defenses of the City of Jacksonville at %% 54-55

(admitting that "Mayor Brown is the chief executive officer of the City of Jacksonville, a

public employer" and "Chris Hand and Cindy A. Laquidara acted as Mayor Brown's

representatives at the private mediation.").

39. Because tlie collective bargaining statue incorporates the provisions of the Sunshine Law, the

Court has jurisdiction to determine whether collective bargaining has been held in the

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Sunshine in compliance with Section 286.011. See, e.g., Citv of Fort Myers v. News-Press

Publ'g Co.. 514 So. 2d 408, 411 (Fla. 2d DCA 1987) (determining whether collective

bargaining violated Sunshine Act). To hold otherwise would leave a violation of section

447.605(2) without redress.

40. Once a plaintiff establishes a Sunshine Law violation, the Court has the authority to enjoin

violations similar to those already committed, if there is a danger such violations may be

repeated. Bd. of Public Instruction of Broward Cntv. v. Doran. 224 So. 2d 693, 669-700

(Fla. 1969); Times Publ'g Co. v. Williams. 222 So. 2d 470, 476-77 (Fla. 2d DCA 1969)

(holding that upon violation irreparable injury is presumed and, upon a real and imminent

threat to repeat the violation, the agency may be enjoined, "since there obviously is no

adequate remedy at law"), rev'd in part on other grounds. Neu v. Miami Herald Publ'g Co.,

462 So. 2d 821 (Fla. 1985); Town of Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974)

(holding that irreparable injury is presumed upon a violation of the Sunshine Law).

41. Upon a showing that the Sunshine Law was violated, a court may enjoin a future violation

that bears some resemblance to the past violations, as long as the enjoined conduct is

"specified, with such reasonable definiteness and certainty that the defendant could readily

know that [which] it must refrain from doing without speculation and conjuncture." Port

Everglades Auth. v. Int'l Longshoremen's Ass'n. Local 1922-1. 652 So. 2d 1169, 1173 (Fla.

4th DCA 1995), quoting Doran, 224 So. 2d at 699.

42. During the multiple mediation conferences that occurred between March 26 and May 23,

2013, the City, the Pension Fund Board, and the Unions met in private meetings, either

directly or through an intermediary, out of the sunshine to bargain collectively over

retirement benefits. The mediation sessions were not open to the public, reasonable notice of

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the meetings was not given, and minutes of the meetings were not taken. The results of

those negotiations are set forth in the Mediation Settlement Agreement, which represents a

significant change in pension benefits. The contents of the Mediation Settlement Agreement

reflect the nature of the non-public negotiations held during the mediation conferences as

dealing with retirement benefits.

43. Defendants assert that Florida's mediation laws, codified in Chapter 44, Florida Statutes,

provide an exemption from the Sunshine Law, citing News-Press Publ'g Co. v. Lee County.

570 So. 2d 1325 (Fla. 2d DCA 1990). However, the Court previously rejected this argument

for the reasons stated in its Order Denying Motions to Dismiss.

44. Although the Pension Fund Board alleges that it is not a recognized bargaining agent and,

therefore, could not have engaged in collective bargaining during the mediation sessions, the

evidence demonstrates that the Pension Fund Board has a history of negotiating pension

benefits with the City on behalf of the Unions.

45. The evidence establishes that the Pension Fund Board, by participating in the negotiations for

pension benefits, became an agency subject to the Sunshine Law.

46. Evasive devices used to circumvent the dictates of the Sunshine Law are condemned and

cannot be upheld. Thus, the Court finds that the federal mediation sessions were in violation

of the Sunshine Law because they included negotiations over pension benefits contained in

the Restated Agreement. As bodies subject to the Sunshine Law, the Pension Fund Board

and City were required to conduct their negotiations in the public realm.

3 Town of Palm Beach v. Gradison. 296 So. 2d 473,477 (Fla. 1974) (summarizing Sunshine Law requirements).

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D. Delegation Doctrine

47. "The Sunshine Law does not provide for any 'government by delegation' exception; a public

body cannot escape the application of the sunshine law by undertaking to delegate the

conduct of public business through an alter ego." IDA Properties, Inc. v. Town of Palm

Beach. 279 So. 2d 353, 359 (Fla. 4th DCA 1973) affd., 296 So. 2d 473 (Fla. 1974); see also

News-Press Publ'g Co.. Inc. v. Carlson. 410 So. 2d 546, 547-548 (Fla. 2d DCA 1982).

48. If a board member has been delegated authority to reject certain options from further

consideration by the entire board, the board member is performing a decision-making

function that must be conducted in the sunshine. Op. Att'y Gen. Fla. 95-06 (1995) and 93-78

(1993).

49. The Sunshine Law is applicable to meetings between a board member and an individual who

is not a board member when that individual is being used as a liaison between, or to conduct

a de facto meeting of, board members. See Op. Att'y Gen. Fla. 74-47 (1974).

50. The argument that the City representatives were present at the mediation by delegation and,

therefore, were non-sunshine individuals, does not remove their conversations from the

Sunshine Law requirements.

E. Federal Court Jurisdiction

51. During a deposition taken in this case on July 29, 2013, Cindy Laquidara, General Counsel

for the City of Jacksonville, testified that the City intended to resume mediation sessions.

Legal counsel for the City also stated on the record during that deposition that mediation

discussions were ongoing.

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52. According to the Local Rules for the Middle District of Florida, "[a]ll proceedings of the

mediation conference, including statements made by any party, attorney, or other participant,

are privileged in all respects." M.D. Fla. Loc. R. 9.07,

53. "[A] district court has discretion to waive or excuse noncompliance with its local rules."

Fluor Intercontinental. Inc. v. IAP Worldwide Servs.. Inc., 12-10793, 2013 WL 4081317, *8

n.35(ilthCir. Aug. 14,2013).

54. Having found a violation of Sections 447.605(2) and 286.011, Florida Statutes, the Court

finds it appropriate to enjoin the parties from conducting further proceedings entailing

collective bargaining of the police officer and firefighter pension funds in private outside of

tlie Sunshine.

55. The Local Rules for the Middle District of Florida require that mediations be privileged.

Given tlie parameters of the Sunshine Law and its place within the Florida Constitution,

however, it is appropriate that the parties be ordered to inform a federal court that they are

obligated to comply with Florida's Sunshine Law requirements and further ordered to take all

reasonable steps to seek a waiver of the local federal rules in order to comply with this

Court's judgment, the Constitution of the State of Florida, and applicable Florida laws

mandating Government in the Sunshine. If, after fully complying with this Court's judgment,

the parties nevertheless are ordered by the federal court to conduct mediations in private, the

Supremacy Clause of the United States Constitution requires that the parties comply with the

federal court's order.

Accordingly, for the reasons stated, the Court ORDERS AND ADJUDGES:

1. The Motion for Summary Judgment filed by Plaintiff, Frank Denton, is

GRANTED as to Count II of Plaintiff s Verified Amended Complaint.

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2. The Cross-Motion for Summary Judgment filed by Defendants Mayor Alvin

Brown and the City of Jacksonville is DENIED as to Count II of Plaintiffs Verified Amended

Complaint.

3. The Cross-Motion for Summary Judgment filed by Defendant Tlie Jacksonville

Police and Fire Pension Fund Board of Trustees is DENIED as to Count II of Plaintiff s Verified

Amended Complaint.

4. The Mediation Settlement Agreement is void ab initio.

5. Defendants, The City of Jacksonville and the Jacksonville Police and Fire Pension

Board of Trustees, are enjoined from meeting with representatives of the Police or Fire Unions,

their agents, or representatives such as the Pension Fund Board, representatives, or counsel, to

negotiate pension benefits, witiiout reasonable notice to the public, the taking of minutes of such

meeting, opening such meeting to the public, and otherwise complying with Sections 447.605(2)

and 286,011, Florida Statutes. The scope of this injunction includes, witiiout limitation, the

negotiating of any such pension benefits during any future mediation conferences held in the

federal court civil action, case number 3:13-cv-121-MMH-MCR, or in any civil action

subsequently filed.

6. Defendants shall not be in violation of this judgment of injunction if they are

ordered by a federal court, based on federal law, to conduct mediation negotiations in private;

provided that the parties have previously informed the federal court that they are subject to this

injunction, and have taken all reasonable steps to seek a waiver of the local rales for the federal

district to allow the mediation to be conducted in public for the purpose of carrying out the

mandates in the constitution and statutes of the State of Florida that collective bargaining with

governmental units be conducted in public.

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7. The Court reserves jui'isdiction to determine motions for attorney's fees or costs.

DONE AND ORDERED in chambers at Jacksonville, Duval County, Florida, this

3\/[ day of December, 2013.

Waddell A. Wallace IIW v * Circuit Judge

Copies to:

George D. Gabel Jr. george.gabel@hklaw.com Secondary:lynette.mattison@hklaw.com Timothy J, Conner timothy.conner@hklaw.coin Secondary: lynette.mattison@hklaw.com Jennifer A. Mansfield jennifer.mansfield@hklaw.com Secondary: dawn.hewett.@hklaw.com 50 North Laura Street, Suite 3900 Jacksonville, Florida 32202 Counsel for Plaintiff

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Office of General Counsel Carol Mirando, Esq. Assistant General Counsel Florida Bar No. 069019 Primary E-mail: CMirando@coi.net Secondary E-mail: JeanH@coi.net

David J. D'Agata, Esq. Assistant General Counsel Florida Bar No. 663891 Primary E-mail: Dagata@coi.net Secondary E-mail: Garelick@coj .net

Craig D. Feiser, Esq. Assistant General Counsel Florida Bar No. 164593 Primary E-mail: CFeiser@coj.net Secondary E-mail: LCcnac@coi.net 117 West Duval Street, Suite 480 Jacksonville, Florida 32202 Telephone (904) 630-1837 Facsimile (904) 630-1316 Counsel for Defendants, Mayor Alvin Brown and the City of Jacksonville

Michael K. Grogan, Esq. Florida Bar No. 0218928 mgrogan@anblaw.com Tracey Kort Parde, Esq. Florida Bar No. 0022834 kparde@aiiblaw.coni Allen, Norton & Blue, P.A. 421 West Church Street, Suite 430 Jacksonville, Florida 32202 Counsel for Defendants, Mayor Alvin Brown and the City of Jacksonville and Police and Fire Pension Fund

Robert Klausner, Esq. Klausner, Kaufman, Jensen & Levinson 10059 Northwest First Court Plantation, FL 33324 Primary E-Mail: bob@robertdklausner.com Secondary E-Mail: lorna@robertdklausner.com kkjllaw@gmail.com Counsel for Police and Fire Pension Fund Board of Trustees

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