117-1999 LTC
CITY OF
MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139
OFFICE OF THE CITY MANAGER
TELEPHONE: (305) 673-7010
FAX: (305) 673-7782
LETTER TO COMMISSION
*CONFIDENTIAL
L.T.C. No.
117-1999
SUBJECT:
Honorable Mayor and City Commissioners
Sergio Rodriguez xf.-.-:.-
City Manager p
PolicelFire Pension Plan Issues
DATE: May 21,1999
TO:
FROM:
Attached are a memorandum and other background material which will provide you with a basic
understanding ofthe issues involved with the disagreement between the Administration and the
IAFF/FOP/Pension Board attorney, relative to the Police/Fire Pension Plan merger and
implementation of the DROP,
The unions have requested certain additional concessions that are outlined in Firefighter
Richardson's attached letter to me. Granting the pension buyback demand and their proposed
modifications to the previously agreed-upon DROP plan require bargaining.
Pursuant to F.S. 447, Part II, the City Commission may meet with me in a closed Executive
Session to discuss our response to these bargaining demands. I have requested that such a
session be held on May 26.
Attachments
F.I$CMBILABORRELIAMHIL TC\P&FPEN. WPD
cc: Murray Dubbin, City Attorney
Richard W. Bender, Executive Assistant to City Manager/Labor Relations
*CONFIDENTIAL-- THIS DOCUMENT IS A COLLECTIVE BARGAINING WORK
PRODUCT AND IS EXEMPT FROM THE PROVISIONS OF FLORIDA'S PUBLIC
RECORDS LAW, PLEASE SAFEGUARD ITS CONFIDENTIALITY AND REFRAIN FROM
DISSEMINATING OR DISCUSSING ITS CONTENTS EXCEPT WITH THE CITY
MANAGER.
CITY OF MIAMI BEACH
MEMORANDUM
FROM:
Sergio Rodriguez
City Manager
Richard W. Bender ~S
Executive Assistant tb-elty Manager/Labor Relations
TO:
DATE:
May 21,1999
RE:
PolicelFire Pension Plan Issues
******************************************************************************
Changes to Police and Fire Pension Plan
The Police and Fire Pension Plan is presently governed by two legislative constructs, the Base
Plan, which was created many years ago as a Special Act by the Legislature, and the
Supplemental Plan, which was created by City Ordinance in 1989. The Supplemental Plan was
created because the Unions and the City believed it to be a means of effectuating pension plan
changes that were agreed upon at that time without going to a referendum to modify the Base
Plan, which was then seen as the necessary alternative.
The process of effectuating two new proposed changes to this pension program has created a
difference of opinion between the Unions/Pension Board attorney and the City Administration as
to what methodology is necessary for their implementation.
One change involves merging the Base and Supplemental Plans into a unified Plan. All parties
agree that this is a worthy change in that it will facilitate Plan administration and result in an
estimated savings to the City of $3,666,634 for Fiscal Year 1999/2000 through reduced funding
requirements.
The second change is also one to which all have mutually agreed. It involves implementation of
the DROP Plan that was collectively bargained between the City and the FOP/IAFF Unions. We
are advised that implementation ofthe DROP Plan does not add to the City's Plan funding
obligations.
The dispute that exists concerns what implementation methodology is necessary to make these
common goals a reality,
continued., .
PolicelFire Pension Plan Issues
page 2
Union Position
The Pension Board's attorney and the current FOP and IAFF leadership argue that enactment of
the DROP requires that both the Base and Supplemental Plans be amended. We agree with that;
however, they maintain that Florida's Home Rule Statute (F.S. 166) requires that, while the
Supplemental Plan can be amended by ordinance, a Special Act, such as the Base Plan, can only
be amended by referendum if the changes affect the rights of employees.
They propose that an initiative be placed on the November 2, 1999 ballot that would merge the
two Plans and also require that, while future amendments to the Plan could be implemented by
ordinance rather than referendum, no such ordinance could be adopted unless it was approved by
both a super maiority of the City Commission and a simple maiority of Plan members. They also
propose that the Commission amend the Supplemental Plan by ordinance to include the DROP,
They prefer this two-step approach so that the voters are not asked to vote on the DROP. After
passage of the ballot initiative, the Supplemental Plan, including DROP, would be part ofthe
merged Plan,
In support of their position that a referendum is required to implement a collectively-bargained
provision that conflicts with a Special Act, they point to AGO 98-56, which was opined in
response to a question posed relative to this issue by Daytona Beach (see Attachment A).
Our Administration asked the Florida Public Employees Relations Commission (PERC) for a
declaratory statement on the same point of law in 1997. PERC, which is the agency of oversight
for Florida's collective bargaining law (F,S. 447, Part II), ruled that a referendum was not a
necessary precursor to implementation of a collectively-bargained matter that conflicted with a
Special Act (see Attachment B).
Simply, the Attorney General and PERC opined opposite views on this point.
Administration Position
The Administration has consulted extensively with its legal representatives and believes that
PERC's holding is correct We believe that enactment of both the Plan merger and adoption of
DROP could be done by City Ordinance alone.
The dispute that exists locally is more than academic. Indeed, there are significant, practical
consequences attached to what view ultimately prevails.
Under Florida's collective bargaining statute, F.S. 447, if the parties cannot agree on certain
issues, the law provides that the dispute go through an impasse procedure. The final step of that
procedure involves both the Administration and the Union arguing their positions before the City
Commission, which is then empowered to "impose" on the parties its "will" as the final
continued...
PoliceIFire Pension Plan Issues
page 3
resolution. And therein lies the rub of the dispute.
The Unions' concern is that some future City Commission might "impose" on them a pension
benefit change that is not to their liking. Hence, the Unions offer a construct that would dilute
the City Commission's authority under F.S. 447 by essentially giving Plan members the right to
block implementation of a benefit reduction or other plan change by having a simple majority of
them vote against it.
While the Administration has no current plans to seek benefit reductions. we believe it is
imperative to preserve the right of future City Commissions to exercise their undiluted will under
F,S, 447, Indeed. we believe it would be irresponsible for us to recommend an approach to
managing an expensive benefit program that essentially subordinates the interests of our citizens
and the Commission's powers to the self-interest ofthe Plan's beneficiaries.
In addition to our belief that the Union proposal is bad public policy, we also question the ability
of the Unions' proposed construct to meet a legal challenge in that it abrogates the City
Commission's authority under F.S. 447, Part II.
It should be noted, too, that a similar situation presented itself a few years ago when the City
implemented by ordinance certain collectively-bargained changes to the General Employees
Pension Plan despite conflicting language in a Special Act. One of the changes involved an
increase in the employee Plan contribution from 8% to 10% in 1993. If we now give the Special
Act relating to the PolicelFire Plan deference over the collective bargaining agreement as the
Unions urge, the City's legal position could be disadvantaged in potential ensuing challenges
from the General employees that claim their 2% contribution increase was not properly
implemented and should be overturned. The additional 2% contribution since inception totals
over $2.5 million to date.
Lest anyone take that threat lightly, it should be noted that the Police and Fire Pension Board
attorney also serves the General Employees Plan and provides all with the same legal and
philosophical perspectives.
The following courses of action were reviewed by the Administration:
Option 1
As previously stated, we believe that the Plan merger and adoption ofthe DROP could be
achieved by simply adopting an ordinance. It is our understanding, however, that the Police and
Fire Pension Board's counsel will advise the Board to refuse to implement such an ordinance. He
would advise that the ordinance is unlawful because a referendum did not occur and tell the
Trustees that they would violate their fiduciary duty by implementing it. We requested a "straw
continued...
PolicelFire Pension Plan Issues
page 4
vote" of the Board on this issue, but they declined to provide it to us.
If the ordinance were adopted and the Board declined to implement, litigation would be a likely
result (as would prolonged delay) in the adoption of DROP and the realization of savings from
the Plan merger.
Option 2
An alternative approach provides for the City Commission to pass an ordinance merging the
Plans and adopting the DROP, and to coincide its effective date with the adoption of a ballot
initiative that abolishes the Special Act. This would result in a single pension plan that would
clearly be subject to modification at the will of some future Commission, as is the case
contemplated for all cities by F.S. 447. This initiative would be recommended to the public on
the basis of anticipated cost savings. Assuming passage of the ballot initiative, we believe this
approach circumvents the F.S. 166 vs. F.S. 447 dispute. However, once past that hurdle, we are
also aware of theorizing at Pension Board meetings where it was argued that the merging of the
Plans must be collectively-bargained for it to be lawfully adopted.
F .S. 447 requires that we bargain over the terms and conditions of employment of employees in
certified bargaining units. We do not believe that simply merging the Plans, while leaving the
current benefits intact, creates an obligation to bargain. Indeed, we find such an argument to be
specious. That said, it might still be used as a ploy to defer the merger.
Last year, the FOP, the IAFF, and the Pension Board employed a strategy whereby the Board
declined to adopt a cost-saving "Fresh Start" valuation program until the City agreed to the Rule
of70 and DROP. Now, they are mapping a similar strategy to win new benefits and
improvements to the DROP not previously agreed upon and to abrogate the City Commission's
authority to exercise its powers under F.S. 447.
The realization of $3.6 million in savings through a Plan merger is an important goal and a
significant enhancement to the Fiscal Year 1999/2000 budget. However, we submit that
allowing the FOP and IAFF to hold City taxpayers hostage again will leave a legacy to future
City Commissions relative to this Pension Plan that is, at best, bad public policy. It will also
send an encouraging signal to other Unions regarding their Pension Plans.
In an effort to bridge the gulf between us, we offered to recommend to the Commission the
adoption of a time buyback provision sought by the Unions that would cost over $200,000 and
enhancements to the DROP plan of indeterminate, but modest cost. In exchange, we asked that
they support either our "pure ordinance" approach or our "ballot approach." That offer was
rejected.
continued.. .
PolicelFire Pension Plan Issues
page 5
Option 3
We can capitulate to the Union demand of placing a ballot initiative before the voters that would
result in both plans being in a Special Act format and an embrace of the concept that a simple
majority of the Pension Plan members can overrule the will of a future City Commission and the
interests of those they represent. Additionally, we would have to concede to the demands
outlined in the attached letter from Firefighter Richardson (see Attachment C). The positive side
of this approach is the windfall of$3.6 million for the FY99-00 budget provided the ballot
question was approved. If this approach is desired, the City Commission must approve the ballot
question at one of its July meetings.
Option 4
The last alternative involves going to the courts for a declaratory judgment on the disputed points
of law. We anticipate that either side would appeal unsatisfactory court decisions, and this will
result in forgoing the $3.6 million windfall until some future point in time and delay the
implementation of DROP.
Recommendation
As suggested above, we believe that the importance of the governance issue is of far greater
significance over the long term than the budget windfall. Of the alternatives discussed above, we
favor asking the City Commission to adopt Option 1.
cc: Murray Dubbin, City Attorney
V~, , . --- . . - - - - - -
- ~ -
1\TT1\\...nlVlL:.ol'll J. rt
Advisory Legal Opinion
Number: AGO 98-56
Date: September 16, 1998
Subject: Municipal charter amendment, referendum requirement
Mr. Frank B. Gummey, III
Daytona Beach City Attorney
Post Office Box 2451
Daytona Beach, Florida 32115-2451
RE: COLLECTIVE BARGAINING--RETlREMENT--MUNICIPALITIES--CHARTER
AMENDMENTS--ability of city to amend charter provisions governing
retir~~ent 5ystem without referendum approval. 5S. 166.021(4} and
447.403, Fla. Stat.
Dear Mr. Gummey:
You ask substantially the following question:
Does an amendment to city charter pension provisions for city
a~ployees in a collective bargaining unit require a referendum?
In sum:
Section 166.021(4), Florida Statutes, requires referend~~ approval
for any changes in a municipal charter affecting the rights of
municipal employees.
You state that the City of Daytona Beach has a defined benefits
pension plan for certified police officers and firefighters. Plan
members include employees outside and within collective bargaining
units. The city has a local law plan under sections 175.351 and
185.35, Florida Statutes. Originally enacted by Chapter 65-1443,
Laws of Florida, which became subpart 0 of the City Charter, the
plan has been amended several times by referendum.
Section 447.309(1), Florida statutes, recognizes that agents for a
certified employee organization and the chief executive officer of
a public employer may bargain collectively to determine wages,
hours, and terms and conditions of employment of the public
employees within the bargaining unit. Any collective bargaining
agreement reached by the negotiators must be reduced to writing and
signed by the chief executive officer and the bargaining agent. The
signed agreement, however, is not binding on the public employer
until it has been ratified by the public employer and by the public
employees who are members of the bargaining unit. Subsection (3) of
Friday, September 18, 1998
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VI I I , ___ . . - - - - -
section 447.309, Florida Statutes, places a further restriction on
collective bargaining agreements, stating:
"If any provision of a collective bargaining agreement is in
conflict with any law, ordinance, rule, or requ~ation over which
the chief executive officer has no amendatory power, the chief
executive officer sha~l submit to the appropriate governmenta~ body
having amendatory power a proposed amendment to such law,
ordinance, rule, or regulation. Unless and until such amendment is
enacted or adopted and becomes effective, the conflicting provision
of the collective bargaining agreement shall not become effective."
In ~llsborough County Governmental Employees Association v.
~llsborough County Aviation Aut.~ority, [1] the Supreme Court of
Florida considered whether a civi~ service board's refusal to amend
its rules in order to comply with a collective bargaining agreement
would unconstitutionally abridge employees' rights to collectively
bargain. The court concluded that section 447.309(3), Florida
statutes, would violate Article I, section 6 of the Florida
Constitution guaranteeing the right to collective bargaining for
public employees, if it were interpreted to allow a civil service
board to veto conflicting collective bargaining agreement
provisions that have been negotiated by the public employer and the
certified employee organization. The Court, however, noted
specifically that its holding did not apply "to conflicts arising
between collective bargaining agreements and statutes or
ordinances. "[2] This office has not found, nor have you provided, a
subsequent court case in which this conclusion has been altered.
Citing Attorney General Opinions 73-49, 73-427 and 75-136, you note
that this office has previously concluded that a referendum is
required for amendments to a municipal charter affecting pension
rights of municipal employees. An apparent contrary conclusion has
been reached by the Public Employees Relations Commission (PERC) in
In re The Pet.it.ion for Declarat.ory St.at.ement. of t:l1e Cit.y of ~.iami
Beach, [3] stating that amendments to pension benefits provisions
for collective bargaining unit employees contained in a city
charter are not subject to referendum approval.
In reaching this conclusion, PERC attempts to reconcile
Hillsborough Count.y Aviat.ion Authorit.y and a previous PERC opinion
In re Lake Worth Utilit.ies Authorit.y. [4] The commission in Lake
Worth Ut.ilit.ies Authority addressed whether referendum approval was
necessary for changes to employee rights contained in a city's
charter. Noting that the Legislature, by enactment of Part II,
Chapter 447, Florida Statutes, had granted the authority to make
such changes through collective bargaining by the elected or
appointed representative of the public and the public employees,
PERC concluded that referendum approval was not necessary for
changes in wages, hours, and terms and conditions of employment for
public employees. Moreover, PERC noted that Chapter 447, Florida
Friday, September 18, 1998
6:49PM
V..,. I I I ""'-- . . - - - - -
statutes, does not contain a requirement that such changes be
submitted to a public referendum.
The lack of a requirement for referendum approval in Chapter 447,
Florida statutes, however, does not alter the mandate for such
approval under section 166.021, Florida statutes, when changes to
the city's charter affect employee rights. Section 166.021(4),
Florida Statutes, recognizes the broad home rule powers of
municipalities, but specifically limits any changes in special laws
or municipal charters that affect the rights of municipal employees
to those that are approved by referendum. In this instance, ~~e
pension plan's provisions are contained in the municipality's
charter and any change in such provisions would require referendum
approval, absent a judicial determination otherwise. [5]
Accordingly, it is my opinion that unless judicially determined
otherwise, any amendments to provisions in a city charter that
affect the rights of a public employee must be approved by
referendum.
Sincerely,
Robert A. Butte~~crth
Attorney Gene=al
RAB/tgk
----------------------------------------------------------------
[1] 522 So. 2d 358 (Fla. 1988).
[2 ] 522 So. 2d at: 362.
[3] Case No. 05-97-001, July 25, 1997, Public Employees Relations
Commission.
[4] 9 FPER Paragraph 14178(1983).
[5] Cr., Op. Att'y Gen. Fla. 83-87 (1983) (municipal ordinance
establishing retirement fund or system may be amended wi~~out
approval by referendum); and Op. Att'y Gen. Fla. 84-67 (1984)
(provisions of special act establishing a civil service system may
be amended by ordinance passed by the city council and approved by
a majority of the classified employees of the city as method
provided in the special act takes precedence over s. 166.021(4),
Fla. Stat., which was enacted before the special act).
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'1128229
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ATTACHMENT B
'128230
CITY OF MIAMI BEACH
Aorida Public Employees Relations Commission
In re the Petition for Declaratory Statement of the City of
Miami Beach.
Docket No. DS-97-001; Order No. 97DS-190; Declaratory L-
Statement
July 25, 1997
Before Mahon, Jr., Chairman; Gooding and Gertz, Commissioners
360
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I.....,...,....
Collective Bargaining - Pension - Referendum - 01.12,
03.35, 03.341, 07.4. 43.136
State collective-bargaining legislation preempts any requirement that
city submit negotiated pension plan for approval by referendum, Thus.
city need not amend municipal charter in order to implement revised
pension rights,
APPEARANCES:
James C. Crosland. Miami. attorney for petitioner,
Jeremia Hayes. Orlando. representative for CW A,
Declaratory Statement
On April 24. 1997. the City of Miami Beach filed a petition
pursuant to Aorida Administrative Code Rule 38D-22.002 and Section
447,207(7). Aorida Statutes, requesting that the Commission issue a
declaratory statement. Notice of the petition was published in the
Florida Administrative Weekly on May 16. Pursuant to Florida Admin-
istrative Code Rule 38D-22.002(4), a copy of the petition was served
by the Commission upon the Communication Workers of America,
Local 3178 (CW A). because it was named in the petition. No response
to the petition has been filed by the CW A or any other party,
The facts as alleged !n the petition are as follows. In 1991. the
City established a review committee for the purpose of recommending
changes to the City's three pension systems. In 1992. the review
committee issued its fmal report and recommendation. The review
committee recommended that certain changes from the current regular
and disability retirement pension benefits be made for prospective
employees, Provisions of the existing pension benefits for all Citv
employees are incorporated into the City Code (Code). .
The City and the CW A negotiated a collective bargaining
agreement for the years 1994 through 1997. which incorporated the
changes to pension benetits recommended by the review committee,
The City and the CW A have agreed to maintain these same pension
provisions in a successor collective bargaining agreement.
Chapter 166, Florida Statutes. establishes the home rule powers
for municipalities. such as the City, See also Art. vm, ~ 2(b), Fla.
Canst Section 166,021(4). Florida Statutes, states. inter alia. that no
change in a municipal charter (Le,. the City Code) affecting the rights
of municipal employees is permitted without approval of the change
by referendum of the municipality's electors, The changes to the
pension benefits recommended by the review committee, and incorpo-
rated into collective bargaining agreements between the City and the
CW A. are changes to the "rights" of municipal employees which have
not been approved by a referendum vote of the CitY's electors,
Although the parties apparently have implemented the negotiated
pension changes. the City nevertheless asks whether its Code must
be changed by referendum to reflect the changes because Section
447,309(3), Aorida Statutes, provides that:
If any provision of a collective bargaining agreement is
in conflict with any law, ordinance, rule, or regulation
over which the chief executive officer has no amendatory
power. the chief executive officer shall submit to the
appropriate governmental body having amendatory
power a proposed amendment to such law, ordinance,
rule. or regulation. Unless or until such an amendment is
enacted or adopted and becomes effective. the conflicting
provision of the collective bargaining agreement shall
not become effective,
(Emphasis added) The City has not taken any action to amend the
pension provisions in its Code (Le.. it has DOt held a referendum of
electors ),
In light of the foregoing, the questioDS posed by the City in its
petition for declaratory statement are: (a) IIBISt the City seek a change
in its Code pursuant to Section 447.309(3). (b) can this be done only
by referendum pursuant to Section 166.021(4), and (c) if the City
must seek amendment of the Code. and if this may occur only by
referendum. is either Section 166,021 (4) or Section 447.309(3) uncon-
stitutional ?
The City acknowledges in its petition for declaratory statement
that the Commission has previously considered the question of whether
rights of municipal employees may be changed through collective
bargaining without a referendum of municipal electors in the case of
In Re Lake Wonh Utilities Authority, 9 FPER'l! 14178 (1983), In that
case. the Commission held that:
In pertinent part, Section 166.021(4), Florida Statutes
(1981). provides that any rights of municipal employees
shall not be changed without approval by referendum of
the electors. However, changes in the terms of employ-
ment of public employees through collective bargaining
do not necessitate a referendum. . . . [W]e have an obliga-
tion to construe Chapter 447. Part II, consistent with the
State Constitution, Article I, Section 6, of the Aorida
Constitution guarantees to public employees the right to
collective bargaining and the Legislature in Chapter 447.
Part II, has set forth a procedure for public employee
bargaining in the state. That statutory scheme does not
include a requirement that changes in the wages, hours.
and terms and conditions of employment of public em-
ployees be submitted for ratification by the public through
a referendum. The Legislature has chosen to grant that
authority to the elected or duly appointed representatives
of the public; that is, the legislative body of the public
employer and the public employees themselves, There-
fore. if the [public employer] and the certified bargaining
agent for its employees agree upon a change in the retire-
ment system, that change does not require submission to
a public referendum. Rather, the appropriate statutory
procedure requires the [public employer] and union sub-
mit their negotiated agreement to ratification by the in-
volved bargaining unit employees and the [public
employer's] legislative body.
In Re Lake Wonh Utilities Authority, 9 FPER'l! 14178 at 346,
The City inquires whether the Commission's decision in Lake
Wonh Utilities Authority remains viable in light of a subsequent deci-
sion of the Aorida Supreme Court in Hillsborough County Governmen-
tal Employees Association v, HiIlsborough County A viation Authority,
522 So,2d 358 (Flu. 1988), In that case. the Court held that Section
447.309(3) would be unconstitutional if it allowed a civil service
board to veto any conflicting collective bargaining agreement provision
negotiated by the public employer and the certified employee organiza-
tion. The Court reasoned that such a restriction to the right to bargain
collectively would violate Article I, Section 6. of the Aorida Constitu-
tion, which guarantees the right to collective bargaining for public
employees, Therefore, the public employer was required to implement
the agreement, "despite the fact that such implementation may conflict
with applicable civil service board rules," Id. at 362-63,
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Notwithstanding this ruling, the Court held that "Section
447.309(3) stands as it applies to conflicts between statutes or ordi-
nances and agreements reached between public employers and employ-
ees through the art of collective bargaining." /d. at 362. It is the impact
of this statement upon the holding in Lo.ke Worth Utilities Authority
that the City questions.
The Court's holding in Hillsborough County Aviation Authority
is consistent with the Commission's decision in Lake Worth Utilities
Authority, Under the scheme adopted in Chapter 447, Pan U, it is the
public employer's legislative body, acting in the public interest and
on behalf of the electorate which selected it as their representative.
which is given the ultimate authority to decide the terms and conditions
of employment of its employees through collective bargaining. Lake
Worth Utilities Authority, 9 FPER 'Jl14178 at 345-46. The electors
cannot abrogate a collective bargaining agreement negotiated by the
legislative body, /d, at 346. To the same effect. the Court in Hills-
borough County Aviation Authority held that a civil service board
cannot overrule an agreement finally negotiated by a public employer
and ratified by its legislative body, Hillsborough County Aviation
Authority, 522 So.2d at 362-63,
The Commission recently decided that an agreement which seeks
to remove from the legislative: body the authority to ultimately decide
collective bargaining issues runs contrary to the public policy of legis-
lative body resolution of collective impasse disputes expressed in
Chapter 447, Part U, Florida Statutes, See Broward County Board of
County Commissioners v, Port Everglades Fire Fighters Association,
/AFF, Local /989, No. CB-96-024 (Fla, PERC July 9, 1997), This
decision was predicated. in pan. upon a court decision holding that a
proposed ordinance for municipal voter approval which abrogated the
legislative body's impasse role in collective bargaining was invalid
as contrary to the legislative body bargaining impasse resolution pro-
visions of Chapter 447. Pan II. See West Palm Beach Association of
Fire Fighters, Local 727 v, Board of City Commissioners of the City
of West Palm Beach, 448 So.2d 1212 (Fla. 4th DCA 1984).
Furthermore. in City of Tallahassee v, PERC, 410 So.2d 487
(Fla. 1982). the Florida Supreme Court affirmed a lower court decision
that retirement benefits are a mandatory subject of bargaining which
cannot constitutionally be abrogated, even by statute, That decision
was cited as authority both by the Commission in its decision in Lake
Worth Utilities Authority and by the Florida Supreme Court in its
decision in Hi/lsborough County Aviation Authority, Hi/lsborough
County Aviation Authority, 522 So,2d at 362; Lake Worth Utilities
Authority, 9 FPER 'Jl14178 at 345. It is fundamental that if a statute
may not withdraw a mandatory subject from collective bargaining,
then an ordinance may not do so either. Cf City of Casselberry v,
Orange County PBA, 482 So.2d 336. 339 (Fla. 1986) (state statutory
collective bargaining rights take precedence over city ordinances where
specific conflicts arise), Such an ordinance would be preempted by
Chapter 447, Florida Statutes. which dictates that all mandatory items
of negotiations are subject to the same ratification procedures, by a
public employer's legislative body and the certified employee organi-
zation, and not through a vote of the general electorate. Lake Worth
Utilities Authority, 9 FPER '1114178 at 346; see also, e.g., Maxwell v.
School Board of Broward County, 330 So.2d 177 (Fla, 4th DCA 1976)
as to the preemptive effect of Chapter 447, Pan U. Florida Statutes.
Finally, Section 166.021. Florida Statutes, states that a municipali-
ty's home rule authority is subject to any matter expressly preempted
to the state government by the Constitution or by general law, See
~ 166,021(3)(c) and (4), Fla, Stat. (1995); see also Art. Vill, ~ 2(b),
"'--"T -
,
FJa. Const. The State Legislature. when it eDlldcd Chapter 447, Part
II. Florida Statutes. did not provide for a veto of collective bargaining '"
by the electorate of a municipality, A referendum to effectuate the
negotiated changes in pension benefits is not required. See City of
West Palm Beach, 448 So.2d at 1215 (a proposed ordinance which
changed the method of the approval of terms of a collective bargaining
agreement was prohibited under the preemption provisions of Article
vm. ~ 2(b), Fla. Const.. and Chapter 166. Florida Statutes).
Accordingly. the Commission holds. consistent with its prior
holding in Lake Worth Utilities Authority, that Section 447.309(3)
does not apply to the factual situation of this case and that there is
no need for the City to conduct a referendum to seek a change in its
Code to effectuate the collective bargaining provision regarding pen-
sion changes, Inasmuch as we have answered parts (a) and (b) of the
City's question in the negative. we need not reach part (c),
This order may be appealed to the appropriate district court of
appeal. A notice of appeal must be received by the Commission and
the district court of appeal within thirty days from the date of this
order. Except in cases of indigency, the court will require a filing fee
and the Commission will require payment for preparing the record on
appeal. Further explanation of the right to appeal is provided in Sec-
tions 120.68 and 447.504, Florida Statutes. and the Florida Rules of
Appellate Procedure.
Alternatively, a motion for reconsideration may be filed. The
motion must be received by the Commission within fifteen days from
the date of this order. The motion shall state the particular points of
fact or law allegedly overlooked or misapprehended by the Commis-
sion. and shall not reargue the merits of the order. For further explana-
tion. refer to Florida Administrative Code Rule 38D -15,005.
It is so ordered.
MAHON, JR., Chairman. GOODING and GERTZ. Commission-
ers. concur,
, 362
@ 1997 LAP Publications; all rights reserved.
480-850X/97/S2+$1,50.
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ATTACHMENT C
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?~cht:3rs of Miami
-
Local 1510
8000 N.W. 21 Street, Suite 205
Miami, Aorida33122-1621
(305) 592-6860
FAX (305) 477-5954
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Mr. Sergio Rodriguez, City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach. FL 33139
March 29, 1999
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Dear Mr. Rodriguez,
I have enclosed a copy of a memo dated March 19, 1999 from Celia Locke, Pension
Administrator for the Miami Beach Fire & Police Pension Plans to Richard Bender, Executive
Assistant to the City Manager jLabor Relations which I am sure you are already aware of. I
hope you are as excited regarding the opportunity to save our city $3.6 million dollars as I am. I
know that the Fire & Police Pension Board wants to act expeditiously on this matter in order to
implement the DROP correctly - and legally.
We both know there exists a difference of legal opinion regarding the best way to make the
necessary changes to the pension plan document. While not wanting to argue the case, I
propose the following scenario to get us to where we need to be in order to enact the DROP,
merge the separate plans and save the City millions of dollars. First, amend agreed upon DROP
language into the Supplemental Plan by ordinance, provided that this action produces no
problems with IRS tax qualification for either plan. The Board has posed this question to a tax
qualification expert, and hopes to have an answer soon. Next, place a referendum question on
the November General Election ballot seeking approval from the voters to merge the two plans
together, with the resulting tax savings as the major issue. Also contained in this referendum
question would be language allowing for future changes in the plan to be adopted by
ordinance, following approval by a simple majority of the plan members and a super majority
of the Oty Commission (Le., collective bargaining). Following voter ratification, we would have
a single plan with one level of benefits for all members, erasing the costly and confusing
administrative nightmare we currently labor under.
I'm sure Mr. Bender will find some fault in my logic. but I hope he can see that this is an issue
which needs resolution, and quickly. I would also advise you that at a meeting scheduled for
April 8th between Mr. Bender, Bernie Ruder and myself we would like to discuss the following
issues in regard to the DROP:
~9
1. We would remove the language which caps the earnings of DROP participants'
accumulated earnings. Since the actuarial reports indicate that the DROP program
will have no cost impact on the City, we feel that it is reasonable to request the
removal of an impediment which is not contained in any other DROP program in
the state.
2. We would include language providing members with the opportunity to buy back
any previous City service time during the life of their employment (see attachment).
This language would provide the same benefit enjoyed by other City employees
covered under other City sponsored pension plans, and would address those
employees who might not have needed the additional service time prior to the
implementation of the -Rule of 70".
Mr. Rodriguez, I respectfully request your assistance in insuring that these issues be dealt with
as expeditiously as possibly. The task of combining the two plans (with four different benefit
levels) is monumental, and if it is to be completed in time to take to the voters this November,
we must act in a concerted and diligent fashion. Time is of the essence.
Thanking your for your cooperation in advance, I remain,
$incere~y'/J 0
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Jc(ik Ricli.ardson, Jr.
President
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