                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

MAYOR ALVIN BROWN AND               NOT FINAL UNTIL TIME EXPIRES TO
THE CITY OF JACKSONVILLE            FILE MOTION FOR REHEARING AND
AND THE JACKSONVILLE                DISPOSITION THEREOF IF FILED
POLICE AND FIRE PENSION
FUND BOARD OF TRUSTEES,

      Appellants,

v.                                  CASE NOS. 1D14-0443 & 1D14-0444

FRANK DENTON,

      Appellee.

_____________________________/

Opinion filed October 21, 2014.

An appeal from the Circuit Court for Duval County.
Waddell A. Wallace, Judge.

Craig D. Feiser and David J. D'Agata, Assistant General Counsels, Jacksonville,
for Appellants Mayor Alvin Brown and the City of Jacksonville.

Robert D. Klausner, Stuart A. Kaufman, and Paul A. Daragjati of Klausner,
Kaufman, Jensen & Levinson, Plantation, for Appellant Jacksonville Police and
Fire Pension Fund Board of Trustees.

George D. Gabel, Jr., Timothy J. Conner, and Jennifer Mansfield of Holland &
Knight, Jacksonville, for Appellee.
ROBERTS, J.,

      In this consolidated appeal, the appellants, Mayor Alvin Brown (the Mayor),

the City of Jacksonville (the City), and the Jacksonville Police and Fire Pension

Fund Board of Trustees (the Board), appeal an order granting summary final

judgment in favor of the appellee, Frank Denton (Denton). Finding no grounds for

reversible error, we affirm.

      In February 2013, Randall Wyse, who was employed as the fire district chief

and who also served as the Chief Negotiator for the Firefighters’ Union – the

Jacksonville Association of Fire Fighters Local 122, IAFF (JAFF) – along with

several other plaintiffs, filed suit against the City and the Board in the United

States District Court for the Middle District of Florida. In March 2013, the City,

the Board, and the plaintiffs voluntarily sought mediation in the federal case. For

the next few months, several closed-door mediation sessions were held at a

stipulated mediator’s office in Gainesville, Florida. Although not parties to the

federal litigation, the JAFF and the Fraternal Order of Police Lodge 5-30 (FOP

and, collectively with JAFF, the Unions) attended the mediation sessions. No

party informed the federal court that the negotiations would entail collective

bargaining or that the provisions of the Florida Statutes and Constitution may

require such collective bargaining to be conducted in public. There was no public

notice of the mediation sessions nor was any transcript made of the proceedings.

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      The end result of the private mediation sessions was a Mediation Settlement

Agreement (MSA), which, on its face, changed the specific, defined pension

benefits of City employees in the Unions. The signatories to the MSA included:

the Mayor’s Chief of Staff, General Counsel for the City, Wyse (who signed

“individually” and also as the President/Chief Negotiator of JAFF), the Executive

Director of the Pension Fund, legal counsel for the Pension Fund, legal counsel for

the Unions, and the President/Chief Negotiator of FOP as well as the remaining

federal plaintiffs. The parties were to use their best efforts to obtain approval from

their respected officials necessary for implementation of the MSA. It was also

undisputed that the parties intended to seek further mediation if the MSA were not

adopted.

      In May 2013, the Mayor held a press conference announcing an agreement

on retirement reform with the Unions. An ordinance was subsequently introduced

to the City Council seeking approval of the MSA. In July 2013, the City Council

voted down the proposed ordinance and, therefore, decided not to adopt the MSA.

      In August 2013, Denton, an editor of the Florida Times-Union newspaper in

Jacksonville, filed a verified amended complaint for declaratory and injunctive

relief in circuit court against the Mayor, in his official capacity, the City, and the

Board. The complaint alleged that the closed-door mediation sessions constituted

collective bargaining negotiations that, under section 447.605(2), Florida Statutes

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(2013), were conducted in violation of Florida’s Sunshine Law as codified in

section 286.011, Florida Statutes (2013). The complaint sought a declaration that

the MSA was void ab initio and that a Sunshine Law violation occurred and would

continue to occur were the mediation sessions allowed to continue. Finally, the

complaint sought an injunction prohibiting the defendants from adopting,

performing, or implementing the MSA and from engaging in future mediation.

      Following motions for summary judgment on the issues, on December 31,

2013, the circuit court entered an order granting summary final judgment in favor

of Denton. The circuit court found that it had jurisdiction to determine whether

collective bargaining had been held in compliance with the Sunshine Law and to

enjoin further violations. The circuit court found that in negotiating the MSA, the

City and the Board made changes to the terms of the employee pension benefits,

which were a mandatory subject of collective bargaining, and, absent a clear

waiver, were required to be conducted in the sunshine. The circuit court found that

the Board acted as the Unions’ representative and bargaining agent in the

negotiations or the Unions themselves participated to some degree in negotiating

the MSA. As such, the circuit court held that the federal mediation sessions

violated the Sunshine Law, voided the MSA ab initio, and enjoined “the parties

from conducting further proceedings entailing collective bargaining of the police




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officer and firefighter pension funds in private outside of the sunshine.” The

circuit court further held,

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


      The appellants then individually initiated appeals, between them challenging

the circuit court’s jurisdiction, its determination that collective bargaining

occurred, its determination that the entities present at the mediation sessions had

the ability to collectively bargain pension benefits, and its determination that the

Board acted as the Unions’ bargaining agent. They also argued that the circuit

court’s order violated the rule of confidentiality of mediation sessions, principles

of comity, and the Supremacy Clause. We are not persuaded that any of these

issues require reversing Judge Wallace’s well-reasoned and sound order.

      The Sunshine Law provides a right of access to government. See Art. 1, §

24, Fla. Const.; § 286.011, Fla. Stat. (2013). It was enacted in the public interest to

protect the public from “closed door” politics. See Pinellas Cnty. Sch. Bd. v.
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Suncam, Inc., 829 So. 2d 989, 990 (Fla. 2d DCA 2002) (citing Wood v. Marston,

442 So. 2d 934, 938 (Fla. 1983)). The Sunshine Law is to be liberally construed to

give effect to its public purpose, and exemptions should be narrowly construed.

See Bd. of Pub. Instruction of Broward Cnty. v. Doran, 224 So. 2d 693, 699 (Fla.

1969). In addition, it should be construed so as to frustrate all evasive devices.

See City of Miami Beach v. Berns, 245 So. 2d 38, 41 (Fla. 1971).

      Chapter 447, Part II, Florida Statutes (PERA), governs collective bargaining

of public employees. Section 447.605(2), Florida Statutes (2013), 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.

      Thus, once the collective bargaining process begins, whenever one side or

any of its representatives at any time meets with the other side or any of its

representatives to discuss anything relevant to the terms and conditions of the

employer-employee relationship, such a meeting is subject to the Sunshine Law.

City of Fort Myers v. News-Press Publ’g Co., Inc., 514 So. 2d 408, 412 (Fla. 2d

DCA 1987).

      The matters here were presented to the circuit court in the context of

violations of the Sunshine Law.      Considering and determining Sunshine Law

violations are within the circuit court’s purview. See § 286.011(2), Fla. Stat.

(2013) (vesting jurisdiction to enforce the public meeting requirements in the

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circuit courts).   While the circuit court made some determinations regarding

collective bargaining, those determinations were not dispositive of any issues

particularly relating to the collective bargaining process itself so as to fall under

PERC’s exclusive jurisdiction.      Rather, they constituted necessary threshold

determinations in the context of whether the mediation sessions triggered

application of the Sunshine Law. Cf. Miami Ass’n of Firefighters Local 587 v.

City of Miami, 87 So. 3d 93 (Fla. 3d DCA 2012) (finding that the union was

required to exhaust its administrative remedies with PERC before seeking relief in

circuit court where the claims against the City raised violations of both chapter

447, Florida Statutes, and the Sunshine Law).

      The circuit court found that the Board acted as the Unions’ bargaining agent

in the mediation sessions, which, in the context of the Sunshine Law, was a proper

finding. The circuit court focused on the fact that section 447.605(2) requires

collective bargaining to be conducted in the sunshine when negotiations involve a

“bargaining agent.” Considering the definition of bargaining agent in section

447.203(12), Florida Statutes (2013), the circuit court found that it included more

than just PERC-certified bargaining agents as it also included the certified entities’

“representative.” Thus, the fact that the Board had not been formally designated as

the Unions’ bargaining agent did not necessarily mean that it did not function as a




                                          7
representative of the Unions so as to qualify as a “bargaining agent” for purposes

of Sunshine Law application.

      With regard to whether collective bargaining occurred during the mediation

sessions, the circuit court found that the parties negotiated pension benefits, an

undisputed mandatory subject of collective bargaining.          The circuit court

appropriately considered the parties that went in to the closed-door mediation

sessions and the end product, which by its terms made changes to employee

pension benefits. As further evidence of the changes made by the MSA, the circuit

court recognized that the Mayor held a press conference announcing an agreement

on retirement reform with the Unions. The fact that the MSA was tentative and

conditioned upon further approval does not cure any prior Sunshine Law violation

as the purpose of the Sunshine Law is to “prevent at nonpublic meetings the

crystallization of secret decisions to a point just short of ceremonial acceptance.”

Zorc v. City of Vero Beach, 722 So. 2d 891, 896 (Fla. 4th DCA 1998) (citing

Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974)). The circuit

court’s findings with regard to the parties as well as the nature of the mediation

sessions were supported by the record such that they should not be disturbed on

appeal.

      With regard to the remedy ordered, the circuit court took appropriate care in

recognizing the federal court’s supremacy and the limited scope of the Sunshine

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Law issue before it. The circuit court narrowly crafted its remedy to respect the

interplay between Sunshine Law principals and federal mediation.

      We affirm the order on appeal under the broad public policy of Florida’s

Sunshine Law. We cannot condone hiding behind federal mediation, whether

intentionally or unintentionally, in an effort to thwart the requirements of the

Sunshine Law. Caution should be taken to comply with the Sunshine Law, and

compliance should be the default rather than the exception. See Gradison, 296 So.

2d at 477 (“The principle to be followed is very simple: When in doubt, the

members of any board, agency, authority or commission should follow the open-

meeting policy of the State.”). By holding closed-door negotiations that resulted in

changes to public employee’s pension benefits, the appellants ignored an important

party who also had the right to be in the room – the public.

      AFFIRMED.

MARSTILLER and SWANSON, JJ., CONCUR.




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