CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT
LEON COUNTY, STATE OF FLORIDA

FLORIDA PUBLIC EMPLOYEES
COUNCIL 79, AFSCME,
Plaintiff,
v. CASE NO. ________________
JOHN ELLIS "JEB" BUSH,
as Governor of the State of Florida, and
KATHERINE HARRIS, as Secretary of
State of the State of Florida,
Defendants.
___________________________________/

COMPLAINT FOR DECLARATORY JUDGMENT
AND FOR TEMPORARY AND PERMANENT INJUNCTIVE
RELIEF AND PETITION FOR WRIT OF MANDAMUS

The Plaintiff, Florida Public Employees Council 79, AFSCME, sues the Defendants, Jeb Bush and Katherine Harris, and says:

JURISDICTION

1. This is an action for a declaratory judgment, for temporary and permanent injunctive relief, and for a writ of mandamus. Plaintiff seeks a declaration that Chapter 01-43 and the provisions of the General Appropriations Act purporting to resolve a collective bargaining impasse between the Plaintiff and the Defendant (hereinafter the "ACTS") are facially unconstitutional. Plaintiff seeks both temporary and permanent injunctive relief from enforcement of these legislative ACTS. In addition, Plaintiff seeks a writ of mandamus directing the Secretary of State to expunge unconstitutional proviso language from the 2001-2002 General Appropriations Act. See, Murray v. Lewis, 576 So.2d 264 (Fla. 1990). This Court has jurisdiction pursuant to Article V, Section 5, of the Constitution of the State of Florida, Section 26.012, Florida Statutes, and Section 86.011, Florida Statutes.

2. The challenged legislative ACTS substantially and materially impair the constitutional right of public employees to engage in collective bargaining under Article 1 Section 6 of the Constitution of the State of Florida. In enacting the ACTS, the Legislature unconstitutionally (a) denied Plaintiff a meaningful opportunity to participate in Legislative impasse resolution, ignoring due process of law, Article 1 Section 6 of the Florida Constitution and the specific provisions of §447.403, Florida Statutes, (b) resolved issues between the parties over contract language never properly presented at impasse, (c) resolved issues between the parties requiring a waiver of future bargaining rights, (d) resolved permissive subjects of bargaining between the parties which may not be subjected to impasse resolution, and (e) altered the terms and conditions of employment of Plaintiff's members that were not the subject of a bargaining dispute between the Plaintiff and Defendants. In addition, the ACTS are unconstitutional because (a) Chapter 01-43 violates the Equal Protection Clauses of the Federal and State Constitutions by creating a legislative classification including in its most onerous provisions employee groups who have politically opposed Defendant Bush, Presidential candidate George W. Bush, and, at times, the Republican legislative majority, and (b) the provisions of the General Appropriations Act that purport to resolve a bargaining impasse violate the logrolling and single subject proscriptions of Article III, Section 12, of the Florida Constitution, by logrolling substantive law in an appropriations bill.

VENUE

3. This cause of action arises out of actions taken by the Florida Legislature in Leon County. The principal place of business of all parties is in Tallahassee, Leon County, State of Florida.

PARTIES

4. The Plaintiff, Florida Public Employees Council 79, AFSCME, is the certified bargaining agent of four bargaining units of State Career Service System employees. Those bargaining units are (1) the Human Services Bargaining Unit, (2) the Operational Services Bargaining Unit, (3) the Professional Bargaining Unit, and (4) the Administrative-Clerical Bargaining Unit. There are approximately 70,000 Career Service System employees in these bargaining units.

5. The Defendant Jeb Bush, as Governor of the State of Florida, is the statutory public employer of the Career Service System employees represented by the Plaintiff; he is the Chief Executive Officer of the State of Florida. See, §447.203(2), Florida Statutes, and §447.203(9), Florida Statutes. Katherine Harris is the Secretary of State, and is charged with maintaining the official statutes of the State of Florida.

GENERAL ALLEGATIONS

6. The Plaintiff has been certified by the Public Employees Relations Commission (PERC) as the collective bargaining representative of the four bargaining units of Career Service System employees described in 4, above, pursuant to §447.307, Florida Statutes. Plaintiff has bargained on behalf of the employees in the bargaining units for more than twenty years.

7. Over the course of Plaintiff's representation, the Plaintiff and the Defendant Governor have entered into numerous collective bargaining agreements (CBAs), which have governed the relationship between the unit employees and the Defendant. The most recent CBA between the parties was effective for the period July 1, 1998 through June 30, 2001. This most recent CBA governs the current status quo between the parties, and is attached hereto as Exhibit A of the Appendix to this Complaint, and is incorporated herein. The parties began to negotiate a successor bargaining agreement to Exhibit A in September 2000, to replace the CBA to expire on June 30, 2001.

8. On January 19, 2001, the Defendant Governor declared a statutory bargaining impasse, invoking the impasse resolution procedure described in §447.403, Florida Statutes (2000).

9. Prior to declaration of impasse, the Governor proposed no specific contract language regarding changes sought to Article 2, entitled "Pay Plan and Classification of Work"; Article 7, entitled "Discipline and Discharge"; Article 8, entitled "Workforce Reduction and Privatization"; Article 9, entitled "Reassignment, Transfer, Change in Duty Station, Promotion."; Article 10, entitled "Promotions"; Article 11, entitled "Classification Review"; Article 14, entitled "Performance Review"; Article 15, entitled "Seniority"; Article 18, entitled, "Leaves of Absence, Hours of Work, Overtime, Disability Leave".

10. Prior to declaration of impasse the Governor proposed retention of the present language, as contained in Exhibit A, as to Article 20, entitled "Training," although he expressed a desire that the tuition free entitlement to university courses be expanded to include all 28 community colleges in the State as well as the four year institutions.

11. During the course of the negotiations and before declaration of impasse, the Governor proposed generally that the Plaintiff waive its bargaining rights on unit placement of job classifications, job security for employees adversely affected by reorganization or privatization, and disciplinary matters. The Defendant Governor's proposals, made through his agents, were extraordinarily general and were verbal, and provided no specific terms Plaintiff could accept or reject. A reasonable inference is that the Governor's agents were instructed to make no concrete proposals.

12. Section 447.403, Florida Statutes, prescribes the procedure for resolution of collective bargaining impasses arising in the public sector between an employee organization such as Council 79 and the Governor of the State of Florida. PERC has adopted implementing rules, having the force of law, which are set forth in Chapter 38D-19, Florida Administrative Code. The statute and rules require the parties, unless they agree otherwise, to present evidence and arguments in support of their positions on the matters at impasse to a Special Master as described in §447.403(3), Florida Statutes. The Special Master is required "[w]ithin 15 calendar days after the close of the final hearing, [to] transmit his or her recommended decision to the commission and to the representatives of both parties by registered mail, return receipt requested." §447.403(3), Florida Statutes.

13. Pursuant to §447.403, Florida Statutes, an impasse resolution hearing was conducted in Tallahassee before a Special Master on March 12, 13, and 14, 2001. Rule 38D-19.006, Florida Administrative Code, required that each of the parties serve a written list of the issues at impasse on the Special Master and opposing parties within ten days of appointment of the Special Master.

14. Plaintiff provided a timely list of the articles it believed were in dispute. The Defendant failed to provide a timely list of issues, providing notice of the issues it believed at issue on the Friday preceding the Monday, March 12 hearing before the Special Master - more than twenty days after the appointment of the Special Master. A copy of the Plaintiff's list of issues in dispute before the Special Master is attached hereto as Exhibit B of the Appendix to this Complaint. A copy of the Defendant's list of issues in dispute before the Special Master is attached hereto as Exhibit C of the Appendix to this Complaint.

15. The Defendant offered no specific contract language to the Special Master during the course of the three-day hearing in March, 2001, on changes the Defendant sought to Article 2, entitled "Pay Plan and Classification of Work"; Article 7, entitled "Discipline and Discharge"; Article 8, entitled "Workforce Reduction and Privatization"; Article 9, entitled "Reassignment, Transfer, Change in Duty Station, Promotion."; Article 10, entitled "Promotions"; Article 11, entitled "Classification Review"; Article 14, entitled "Performance Review"; Article 15, entitled "Seniority"; Article 18, entitled, "Leaves of Absence, Hours of Work, Overtime, Disability Leave". On Article 20, entitled "Training," the Governor presented the then-current contract language, and expressed only a desire that the tuition free entitlement to university courses be expanded to include all 28 community colleges in the State.

16. On April 3, 2001, the parties received a copy of the official report of the Special Master, in the manner described in Section 447.403(3), Florida Statutes. A copy of the Special Master's report and recommendations is attached hereto as Exhibit D of the Appendix to this Complaint, and is incorporated herein by reference.

17. Upon receipt of the Special Master's report and under the terms of Section 447.403, the parties are given twenty (20) days to review it, consider it, and discuss it. The statute requires the report to be meaningfully "discussed [among] the parties." §447.403(3), Florida Statutes. The 20-day time period is essential to the operation of the bargaining process and the resolution of impasses. The statutory objective is to have the parties reach a mutual agreement rather than have a resolution imposed on the parties. The time permitted by Section 447.403(3), Florida Statutes, for considering and discussing the Special Master decision prior to accepting or rejecting it in whole or in part, is a critical element of the implementation of Article 1 Section 6 of the Florida Constitution. Without that element, reasonable collective bargaining is not possible. It is particularly critical to employee organizations such as Plaintiff, representing large units of employees spread over large geographic areas. Plaintiff represents approximately 70,000 Career Service System employees who are employed at work sites throughout the State of Florida. The prescribed statutory period permits Plaintiff necessary time to obtain input and guidance from a representative group of its constituents, and to enjoy some assurance the proposed contract terms could be successfully ratified pursuant to Section 447.309, Florida Statutes.

18. On April 3, 2001, the Governor through his agent and designated Chief Labor Negotiator, Terry Perkins, transmitted proposed language to the Plaintiff on Articles 2, 7, 8, 18, 20 and 25, the last entitled "Wages." A copy of these proposals is attached hereto as Exhibit E of the Appendix to this Complaint, and is incorporated herein by reference. Exhibit E was not submitted by Defendant to the Special Master proceeding. Under Section 447.403, Florida Statutes, the legislative body may not resolve matters which have not reached impasse and been submitted to the Special Master proceeding, because to do so violates public employees' rights under Article 1 Section 6 to have mandatory subjects of bargaining resolved through the prescribed bargaining procedure.

19. On the afternoon of April 3, 2001, the Governor filed objections with the State Legislature to the Special Master's Report and Recommendations. A copy of his objections is attached hereto as Exhibit F of the Appendix to this Complaint, and is incorporated herein by reference. Prior to its rejection of the Special Master's Report and Recommendations, Defendant did not engage in any substantive discussions with Plaintiff on the issues resolved by the Report and Recommendation.

20. A legislative committee composed of members of the Florida House of Representatives and of the State Senate proposed to meet on April 3, 2001 - the same day the Special Master's decision was received - to consider and dispose of the collective bargaining impasse between Plaintiff and Defendant. Plaintiff protested the conduct of the legislative proceeding prescribed by §447.403(4)(d), Florida Statutes, without allowing time for Plaintiff to receive, review and discuss the Special Master decision, and prepare a position to present to the Legislature. The legislative committee rebuffed Plaintiff's reasonable protest. Prior to the legislative hearing, Plaintiff sought and obtained a temporary injunction prohibiting the legislative committee from conducting an impasse resolution hearing on the April 3. Nonetheless, the legislative committee proceeded to meet on April 3, 2001, and to conduct the impasse resolution hearing. Plaintiff was denied a meaningful opportunity to present its positions on impasse resolution to the legislative body, in the manner contemplated by the statute implementing Article 1 Section 6 of the Florida Constitution.

21. On or about April 23, 2001, the Union presented its objections to the Special Master's Report and Recommendation. As required by §447.403, Florida Statutes, Plaintiff's timely objections were transmitted to PERC, to the Defendant, and to the legislative body. The Plaintiff's objections are attached hereto as Exhibit G of the Appendix to this Complaint, and incorporated herein by reference. The State Legislature held no hearing on the Plaintiff's objections to the Special Master's Report and Recommendations, as required by Section 447.403, Florida Statutes. Moreover, because it ignored the statutory scheme established by §447.403, Florida Statutes, neither the Legislature nor a committee thereof heard the objections of the Plaintiff or the Plaintiff's recommendations for resolution of the collective bargaining impasse between the Defendant and the Plaintiff.

22. On or about May 1, 2001, and in the General Appropriations Act, at page 392, the Legislature purported to resolve the collective bargaining issues at impasse. There was no floor discussion by either body of the State Legislature as to the issues at impasse. Rather, the resolution of substantive issues of law, regarding myriad terms and conditions of employment of approximately 70,000 Career Service employees, was logrolled by the legislative leadership into the General Appropriations Act to escape substantive scrutiny and public discussion by responsible members of the Legislature. The language that purports to resolve the issues at impasse between the Governor and the Plaintiff is attached hereto and incorporated herein by reference as Exhibit H of the Appendix to this Complaint.

23. Items 4.A.3), 4.A.5), 4.A.6), 4.A.8) of Exhibit H make reference to the State's Last Offer; the State made no offer whatsoever prior to the issuance of Special Master's Report and Recommendation. Thus, the reference to the "State's Last Offer" cannot refer to any bargaining issue resolved in proceedings conducted pursuant to §447.403, Florida Statutes. The language of the General Appropriations Act that addresses and purports to resolve the bargaining issues at impasse is vague and ambiguous, and leaves reasonable persons to guess at its meaning.

24. At or about the time the General Appropriations Act was passed, the Legislature also passed a bill materially altering the terms and conditions of employment of Career Service employees represented by Plaintiff, Committee Substitute for Senate Bill 466, which the Defendant signed into law as Chapter 01-43 of the Laws of Florida.

25. Chapter 01-43 adversely affects and alters many matters that are mandatory subjects of collective bargaining - such as disciplinary matters, disciplinary process, pay and benefits, layoff and layoff procedures, and exclusion of job classifications from existing bargaining units - and purports to remove them from the collective bargaining process for the indefinite future. Chapter 01-43, thus, unilaterally alters the status quo and denies to Plaintiff the right to engage in future collective bargaining over wages, hours, terms and conditions of employment of those in the bargaining units for which it is the certified bargaining agent. Chapter 01-43 thus impairs Plaintiff's rights under Article 1 Section 6 of the Florida Constitution to engage in collective bargaining over mandatory subjects of bargaining.

26. Enforcement of the ACTS described in the foregoing paragraphs will result in irreparable injury to Plaintiff and its 70,000 bargaining unit members employed within the Florida Career Service System. The Plaintiff has no clear and adequate remedy at law.

27. The Plaintiff is unsure of its rights, duties and obligations flowing from the General Appropriations Act's resolution of the collective bargaining impasse, and as a result of the passage of Chapter 01-43, Laws of Florida.

28. Because the Legislature has acted by statute, Plaintiff has no administrative remedy that would or could provide any meaningful relief. Neither the Public Employees Relations Commission, nor any other administrative agency, has the power to declare facially unlawful or ineffective an act of the Florida Legislature.

COUNT 1
Abuse of Impasse Resolution Process and Denial of Due Process of Law

29. The Plaintiff realleges and incorporates paragraphs 1 through 28 of this complaint by reference and as if each paragraph was separately set forth herein.

30. The right of public employees to collectively bargain is a fundamental right protected by Article 1 Section 6 of the Florida Constitution. By radically departing from §447.403, Florida Statutes, in resolving the collective bargaining impasse between Plaintiff and the Defendant Governor, the Legislature rendered the collective bargaining rights of Plaintiff and its 70,000 unit members meaningless. The Court should declare the fruits of the process unconstitutional and void.

31. Chapter 447, Part II, Florida Statutes, implements public employees collective bargaining rights flowing from the constitutional guarantee, by providing a substantive and procedural framework for labor relations between public employers and public employees. Section 447.403, Florida Statutes, places all parties on notice of the procedure that will be utilized in resolving collective bargaining impasses.

32. While the Legislature remains free to modify Chapter 447, within constitutional limits, it may not do so in a manner which obliterates existing constitutional and statutory rights. Section 447.403, Florida Statutes (2000), gives Plaintiff and its unit members a legitimate expectation that issues within the scope of collective bargaining that properly reach impasse will be resolved by a definite procedure. Section 447.403 gave Plaintiff an expectation impasse issues would be submitted to a Special Master, and that, after the Special Master's Report and Recommendation issued, Plaintiff would have an opportunity to analyze the recommendation, discuss the recommendation with its state-wide membership, engage in a reasonable discussion with Defendant Governor in an effort to resolve issues, and prepare and present its position on any remaining issues to the legislative body for ultimate resolution.

33. By scheduling and conducting the sole legislative impasse resolution hearing on April 3, 2001, the same day the Special Master's Report and Recommendation was received by the parties, the Legislature violated the procedure fairly prescribed by §447.403, and denied Plaintiff the right to engage in and conclude the collective bargaining process - that is, the opportunity to analyze the Report and Recommendation, discuss the Report and Recommendation with its state-wide membership, engage in a reasonable discussion with Defendant in an effort to resolve issues, and prepare and present its position on any remaining issues to the legislative body for ultimate resolution. The unanticipated and shockingly rapid procedure utilized by the Legislature denied the Plaintiff a reasonable time and a reasonable opportunity to exercise its rights, and is an affront to American notions of fairness and substantial justice.

34. Because the ACTS were legislated in violation of Plaintiff's rights under Article 1 Section 6, of the Florida Constitution, they are unconstitutional, and the Court should so declare. Under this Count, the Court should declare Chapter 01-43 and the impasse resolution portions of the General Appropriation Act unconstitutional and void.

COUNT 2
Resolution of Issues Not Properly Submitted to Impasse Under Section 447.403

35. The Plaintiff realleges and incorporates paragraphs 1 through 34 of this complaint by reference and as if each paragraph was separately set forth herein.

36. Because public employees have the same right to collectively bargain as employees in the private sector (except the right to strike), the Legislature may not prescribe the wages, hours and terms and conditions of employment (mandatory subjects of bargaining), except through resolution of issues properly submitted to impasse, pursuant to §447.403, Florida Statutes (2000). Unilateral resolution of issues which have not reached a bargaining impasse by the Legislature, or resolution by the Legislature of issues not properly submitted to impasse resolution, denies Plaintiff and its unit members the right to have mandatory subjects of bargaining determined through the collective bargaining process.

37. In legislating the ACTS, the Legislature unconstitutionally resolved both issues which had never reached an actual bargaining impasse, and issues not properly submitted to impasse resolution.

38. Section 7 of Chapter 01-43, Laws of Florida, amending §110.113, Florida Statutes, to require, as a condition of employment, that employees participate in the direct deposit program, without any provision for the State to bear any added expense, or any meaningful procedure for exemption where appropriate, addresses a mandatory subject of collective bargaining. This issue was not at impasse between the parties, and was not submitted to the Special Master impasse resolution process, pursuant to §447.403, Florida Statutes. Because this section of the statute addresses and resolves a mandatory subject of collective bargaining that has never reached a bargaining impasse, it unconstitutionally impinges upon Plaintiff's rights under Article 1 Section 6 of the Florida Constitution. The Court should declare this section of Chapter 01-43 unconstitutional and void.

39. The Legislature also unconstitutionally resolved issues which both did not reach impasse and were not properly submitted to the impasse resolution process. Because Plaintiff has a constitutional right to collectively bargain, the Legislature may resolve only those mandatory bargaining issues which have reached impasse and have been properly submitted by one of the parties to impasse resolution.

40. The contract language submitted to the Legislature by Defendant, Exhibit E, and characterized as the "State's Last Offer," was never submitted to, or considered by, the Special Master, and was provided to Plaintiff for the first time on April 3, 2001, after completion of the Special Master process and on the date of the legislative hearing to resolve the collective bargaining impasse. Those portions of the General Appropriations Act which purport to resolve the collective bargaining impasse (Exhibit H, Items 4.A.3), 4.A.5), 4.A.6), 4.A.8)) on the basis of the "State's Last Offer" should be declared unconstitutional and void.

41. For the reasons expressed above, those sections of Chapter 01-43, Laws of Florida, which were not properly submitted to impasse resolution by the Special Master - Section 5, Education and Training Opportunities for State Employees, Section 13, Defining Dismissal and Suspension, Section 14, Classification and Compensation Program, Section 20, Employee Evaluation System, Sections 21 and 22, Employee Discipline, Reduction in Pay, Layoff, Demotion and Transfer, and Section 37, Eliminating Appeals of Transfers and Layoffs and Removing Remedies for Wrongful Job Actions by Management - should be declared unconstitutional and void by the Court.

COUNT 3
Violation of Article III Section 12 - Logrolling

42. The Plaintiff realleges and incorporates paragraphs 1 through 41 of this complaint by reference and as if each paragraph was separately set forth herein.

43. Article III Section 12 of the Florida Constitution requires that the General Appropriations Act contain no provisions on any other substantive matters before the Legislature. This single-subject requirement "is designed to prevent 'logrolling' and to insure the integrity of substantive law making.… The single-subject requirement serves to ensure the free flow of public debate that might be circumvented were the legislature permitted to ensconce substantive law in an appropriations act." Murray v. Lewis, 576 So.2d 264, 265 (Fla. 1990).

44. The proviso language of the General Appropriations Act, at page 392 (Exhibit H), purports to resolve the collective bargaining impasse between Plaintiff and Defendant by resolving numerous substantive contract issues between the parties involving the terms and conditions of employment of approximately 70,000 employees of the State of Florida. The vast majority of the issues resolved in this fashion are issues unrelated to appropriations.

45. After denying Plaintiff a meaningful opportunity to participate in the final step of impasse resolution under §447.403, Florida Statutes (2000), the legislative leadership ensconced its resolution of impasse issues in the General Appropriations Act, in order to limit public knowledge of the issues, and to stifle public and legislative debate. Inclusion in the General Appropriations Act also insured members of the Legislature could not vote against any part of the impasse resolution without unsettling the extraordinarily complex appropriations scheme.

46. The General Appropriations Act proviso language, at page 392 (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8), unconstitutionally legislated on issues of substantive law, other than appropriations, and resolved: the details of assessment of employees for bonus awards; the details of assessing and testing employees of the Department of Children and Family Services in the area of Economic Self-Sufficiency; the details and procedure for employee discipline and discharge, and use of the grievance system; the details of workforce reduction, privatization and layoffs; the details and mechanics of education and training of employees, entitlement to tuition supplements and service guarantees; the details of pay and classification planning; and, the details of attendance and leave issues.

47. The General Appropriations Act proviso language, at page 392 (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8), violates Article III Section 12 of the Florida Constitution. The Court should declare this proviso language purporting to resolve the collective bargaining impasse unconstitutional and void. In addition, the Court should issue a writ of mandamus directing Secretary of State Harris to expunge the unconstitutional language from the General Appropriations Act and the official records of the State.

COUNT 4
Unconstitutional Waiver of Right to Bargain

48. The Plaintiff realleges and incorporates paragraphs 1 through 47 of this complaint by reference and as if each paragraph was separately set forth herein.

49. As a certified bargaining agent, Plaintiff has a constitutional right to bargain over the wages, hours, terms and conditions of employment of those it represents. The Legislature, thus, lacks the power to waive Plaintiff's right to bargain on any mandatory subject of collective bargaining. The Legislature may not limit by statute a right conferred by constitutional mandate. Nor may it resolve in impasse resolution proceedings permissive subjects of bargaining without the consent of both parties.

50. The ACTS, in many respects, unconstitutionally waive the right of Plaintiff to bargain over the wages, hours, terms and conditions of employment of those it represents. In addition, the ACTS unconstitutionally resolve permissive subjects of bargaining without Plaintiff's consent.

51. Chapter 01-43, Laws of Florida, unconstitutionally waives Plaintiff's right to collectively bargain mandatory subjects of bargaining by making unilateral changes in the terms and conditions of employment of Plaintiff's unit members by a statute with an indefinite term. While the Legislature may arguably resolve bargaining impasses between the Plaintiff and Defendant Governor, it may not resolve such issues for the indefinite future. Since Sections 5, 6, 7, 8, 12, 13, 14, 18, 19, 20, 21, 22, 37, and 38 make substantive changes in the status quo in areas mandatory bargaining for the indefinite future, the statute violates Article I Section 6 of the Florida Constitution.

52. In addition, Chapter 01-43, Laws of Florida, unconstitutionally waives Plaintiff's right to collectively bargain mandatory subjects, as follows:

a. Section 21 mandates that layoff procedures "shall not include any system whereby a career service employee with greater seniority has the option of selecting a different position not being eliminated,… commonly referred to as 'bumping,'" and specifies criteria to be used in determining the order of layoff. Because Plaintiff is entitled to bargain for a layoff procedure which includes "bumping" and utilizes other or additional criteria in determining the order of layoff, this section unconstitutionally waives a mandatory subject of bargaining.

b. Section 22 redefines "cause" for suspension or dismissal from employment to include even unintentional violation of any provision of law or agency rule, and conviction of a crime which does not involve moral turpitude. Because Plaintiff is entitled to bargain over the criteria for determining whether a suspension or dismissal is appropriate, this section unconstitutionally waives a mandatory subject of bargaining.

c. Section 7 requires all employees, "as a condition of employment" to receive his or her salary by a direct deposit program, without any consideration of costs to the employees. Because Plaintiff is entitled to bargain over the conditions for the payment of wages and for deferral of any cost of direct deposit to employees, this section unconstitutionally waives a mandatory subject of bargaining.

d. Section 8 prescribes an extensive program for the award of bonuses to employees, and prescribes specific eligibility criteria for receiving bonuses. Because Plaintiff is entitled to bargain over the criteria for determining whether a bonus is appropriate, the eligibility criteria for awarding bonuses, this section unconstitutionally waives a mandatory subject of bargaining.

e. Section 14 mandates that the Department of Management Services develop a classification and pay plan by rule, which limits the structure of wages and other compensation, such as shift differentials, on-call fees, hazardous duty pay, lead worker pay, and the like, by definite legislative criteria. While it is a right of management to determine the organizational structure and functions of its workforce, Plaintiff is entitled to bargain over the criteria for determining all forms of compensation. Thus, this section unconstitutionally waives a mandatory subject of bargaining.

f. Section 18 mandates that all new employees serve a probationary period of "at least" one year before achieving permanent status, statutorily doubling the probationary period for most of Plaintiff's unit members. Because Plaintiff is entitled to bargain over the criteria for determining permanent status, this section unconstitutionally waives a mandatory subject of bargaining.

52. The General Appropriations Act proviso language, at page 392 (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8), unconstitutionally waives Plaintiff's right to collectively bargain mandatory subjects, and resolves permissive subjects of bargaining without Plaintiff's consent, as follows:

a. Item 4.A.8) resolves "[a]ll other collective bargaining issues at impasse … in accordance with the state's last offer." The document characterized as the "State's Last Offer" provides, under Article 2 entitled "PAY PLAN AND CLASSIFICATION OF WORK, SECTION 1 - Pay Plan and Classification Changes", provides that Defendant will have the unilateral discretion to reassign employees outside Plaintiff's bargaining units whenever it determines that duties and responsibilities warrant a different assignment, subject only to Plaintiff's right to discuss, or consult, about the reassignment. Because Plaintiff is entitled to bargain over inclusions to or exclusions from the bargaining unit, or file an appropriate action with the Public Employees Relations Commission, this section unconstitutionally waives a mandatory subject of bargaining and rights under Chapter 447, Florida Statutes.

b. Item 4.A.5) resolves "[a]ll collective bargaining issues regarding Article 7, 'Discipline and Discharge' which do not require a statutory modification to be implemented, … pursuant to the state's last offer." The document characterized as the "State's Last Offer" severely limits use of the grievance procedure for all forms of disciplinary action other than suspension and discharge. Because use of the grievance procedure, terminating with arbitration, is a permissive subject of bargaining, the Legislature may not constitutionally resolve the issue without Plaintiff's consent.

c. Item 4.A.6) resolves "[a]ll collective bargaining issues regarding Article 8, 'Workforce Reduction and Privatization' which do not require a statutory modification to be implemented, … pursuant to the state's last offer." The document characterized as the "State's Last Offer" provides that the layoff procedure to be used during reductions in force shall be "the employing agency's layoff transition plan and Section 110.227, Florida Statutes." By relegating layoff procedures to whatever "layoff transition plan" a particular agency may have in place at the time, this provision denies Plaintiff the right to bargain over the specific procedures to be used for reductions in force. In addition, §110.227, Florida Statutes, proscribes a layoff procedure which utilizes "bumping." Because Plaintiff is entitled to bargain for a specific layoff procedure, and for one which includes "bumping" and utilizes other or additional criteria in determining the order of layoff, this section unconstitutionally waives a mandatory subject of bargaining.

53. Under this Count, the foregoing provisions of Chapter 01-43, Laws of Florida, and the General Appropriations Act should be declared unconstitutional and void by the Court.

COUNT 5
Equal Protection of the Laws

54. The Plaintiff realleges and incorporates paragraphs 1 through 53 of this complaint by reference and as if each paragraph was separately set forth herein.

55. Chapter 01-43, Laws of Florida, Section 21 creates a legislative classification which distinguishes between Career Service employees represented by Plaintiff and others employed as law enforcement officers, correctional officers, firefighters, and professional health care providers. Section 21 amends §110.227, Florida Statutes, to proscribe the use of seniority and "bumping" rights in the event of a layoff for the benefit of employees represented by Plaintiff, while leaving such rights undisturbed for benefit of the latter classification. There is no rational basis for the legislative classification created by Section 21. The classification thus violates the constitutional equal protection guarantees embodied in Article I Section 2 of the Constitution of the State of Florida and the Fourteenth Amendment to the Constitution of the United States.

56. In addition, Chapter 01-43, Laws of Florida, Section 22 creates a legislative classification which distinguishes between Career Service employees represented by Plaintiff and others employed as law enforcement officers, correctional officers, firefighters, and professional health care providers. With respect to Plaintiff's bargaining unit members, these sections of the statute prohibit the Public Employees Relations Commission (PERC), when reviewing a disciplinary action taken against an employee, from considering either case precedent or evidence indicating disparate imposition of discipline, and prohibits PERC from reducing the penalty when it finds evidence indicating the penalty should be mitigated. The prohibitions do not apply when PERC is reviewing discipline against other employees. There is no legitimate rationale for this legislative classification. The classification thus violates the constitutional equal protection guarantees embodied in Article I Section 2 of the Constitution of the State of Florida and the Fourteenth Amendment to the Constitution of the United States.

57. To the extent these legislative classifications may be motivated by Plaintiff's political opposition to Governor Bush, to his brother George W. Bush in the recent presidential election, or to Plaintiff's opposition to particular members of the Republican Legislative Leadership in Florida, they violate the First and Fourteenth Amendments to the United States Constitution, and Article I Sections 4 and 5 of the Florida Constitution.

58. In addition, Chapter 01-43, Laws of Florida, Sections 44 and 45, create a legislative classification which distinguishes between public employees for whom the Governor is the public employer, and other public employees. These sections deny to public employees for whom the Governor is the employer the right to the services of a mediator to assist in resolving collective bargaining impasses, and the right to use of a special master in facilitating impasse resolution and shaping recommendations to the legislative body for ultimate impasse resolution. Because these sections of the statute impinge upon fundamental rights protected Article I Section 6 of the Florida Constitution, heightened scrutiny of the classification is appropriate. The difference in legislative treatment of the two classifications of public employees is not justified by a compelling State interest, and the means chosen does not promote the State interest in the least restrictive manner. The classification thus violates the constitutional equal protection guarantees embodied in Article I Section 2 of the Constitution of the State of Florida. Further, since the classification has no apparent legitimate rationale, it also violates the Fourteenth Amendment to the Constitution of the United States.

59. Because it creates a legislative classifications that are without a bases legitimate under the law, the Court should declare Chapter 01-43, Laws of Florida, Sections 21, 22, 44 and 45 unconstitutional and void.

COUNT 6
Impasse Procedure

60. The Plaintiff realleges and incorporates paragraphs 1 through 59 of this complaint by reference and as if each paragraph was separately set forth herein.

61. Section 44 of Chapter 01-43, Laws of Florida, amends §447.403, Florida Statutes, to proscribe the use of a mediator and/or a special master to resolve collective bargaining impasses whenever the Governor is the public employer. This modification to §447.403 so severely undermines the collective bargaining process implemented by Chapter 447 that it renders the legislative scheme arbitrary and unreasonable and denies public employees of the State of Florida their rights under Article I Section 6 of the Florida Constitution.

62. Without the right to strike, the availability of a mediator and the ability to require the participation of a special master are the only tools previously provided to facilitate impasse resolution by the Legislature. Even with these tools, the historical records shows that impasse resolution by the Legislature has, at best, proven barely adequate to accommodate the rights of the parties. No rationale supports the prohibition on mediation. It is both arbitrary and capricious to prohibit mediation where both parties elect to participate in mediation. And, without the persuasive power of a decision by an neutral expert in the field of labor relations, neither the Defendant Governor nor the Legislature will have any incentive to bargain in good faith. As a matter of fact, without these tools, employees of the State of Florida will have no meaningful implementation of the right to collectively bargain under Article I Section 6 of the Florida Constitution.

63. Insofar as mediation and special master proceedings are proscribed for impasse resolution proceedings in which the Governor is the public employer, Section 44 of Chapter 01-43, Laws of Florida, should be declared unconstitutional as rendering inadequate the legislative scheme implementing Article I Section 6 of the Florida Constitution. In addition, since the Legislature has failed to reasonably accommodate public employees' rights under Article I Section 6 of the Florida Constitution by providing a meaningful impasse resolution procedure, the Court should fashion an appropriate impasse resolution process and enjoin its enforcement until further order of the Court.

COUNT 7
Violation of Procedural Due Process

64. The Plaintiff realleges and incorporates paragraphs 1 through 63 of this complaint by reference and as if each paragraph was separately set forth herein.

65. Unlike political appointees, Plaintiff's bargaining unit members are Career Service System employees who may only be suspended or dismissed from their employment on the basis of some reasonable "cause," related to work their performance. It has long been recognized by the United States Supreme Court that such employees possess a "property interest" in their employment, of which they may not be deprived without due process of law. Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). While Chapter 01-43, Laws of Florida, provides for review of disciplinary action by PERC, sections of the statute prohibit the use of reasonable procedures in deciding individual cases, and prohibit the administrative tribunal from providing a remedy which satisfies due process of law.

66. Section 22 of the statute requires the evidentiary hearing on a suspension or dismissal to be conducted within 30 days from filing of an appeal, prohibits an extension of that time parameter beyond an additional 30 days, and prohibits any extension unless all parties consent. While most cases can probably be conducted, consistent with due process of law, within these time parameters, the statute irrefutably presumes a fair hearing can be conducted in every case. A substantial percentage of cases will reasonably require an extension beyond 30 days - to account for illness, the absence of a critical witness, or the like - and the statute permits the opposing party to prevent a fair hearing by refusing to consent to an extension. Some percentage of cases will reasonably require more than 60 days, and the statute prohibits fairly accommodating the circumstances. The Fourteenth Amendment and our Florida Constitution require reasonably flexible due process procedures which provide a reasonable hearing at a reasonable time and in a reasonable manner.

67. When reviewing disciplinary action against Plaintiff's unit members, Section 22 of the statute prohibits PERC from considering any other case or set of facts. In addition, Section 22 prohibits PERC from reducing the penalty when it finds evidence of mitigating circumstances justifies a reduction. These restrictions prevent the administrative tribunal form adequately safeguarding an employee's constitutionally protected property interest in his or her employment.

68. As a disciplinary standard, "cause" is an indefinite and flexible standard, which carries with it a consideration of the proposed sanction. What may be "cause" for a counseling session or an oral admonition will not necessarily suffice as "cause" for suspension or dismissal. The statute, thus, prohibits PERC from reasonably determining whether "cause" exists for the employer's proposed disciplinary action. In addition, because PERC is prohibited from considering the results of other cases, or the treatment of other employees in factually similar circumstances, the statute undermines any possibility of consistent and fair decision making, virtually assures disparate treatment, and denies employees of reasonable notice of the standard of required conduct. These procedural deficiencies render the otherwise adequate provisions of Chapter 120 an unreasonable accommodation of the employees' constitutionally protected property interest in their employment, and, thus, deny due process of law.

69. In addition, Section 22 of the statute permits PERC to reinstate an employee "with or without" back pay, in the event the employee is determined to have been wrongfully disciplined. The failure of the statute to require that the employee be made whole, where the imposition of discipline has been adjudicated wrongful, violates due process of law. Indeed, the United States District Court for the Northern District of Florida adjudicated an earlier version of this same statute unconstitutional for failure to guarantee back pay and reinstatement after a determination of the wrongful imposition discipline. The district court's determination was not successfully appealed, and remains binding.

70. Under this Count, the Court should declare unconstitutional and void Section 22 of Chapter 01-43, Laws of Florida.

WHEREFORE, the Court is requested to grant the following relief:

1. Grant temporary and permanent injunctive relief, prohibiting enforcement of Chapter 01-43, Laws of Florida, Sections 5, 6, 7, 8, 12, 13, 14, 18, 19, 20, 21, 22, 37, 38, 44 and 45, and the impasse resolution section of the General Appropriations Act (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8).

2. Grant declaratory relief as described in A through F, below:

A. As to Count 1, the Court should declare unconstitutional and void, as an abuse of the impasse resolution procedure and a denial of due process of law, Chapter 01-43, Laws of Florida, Sections 5, 6, 7, 8, 12, 13, 14, 18, 19, 20, 21, 22, 37 and 38, and the impasse resolution section of the General Appropriations Act (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8).

B. As to Count 2, Court should declare unconstitutional and void, as a resolution of issues not properly submitted to impasse under Section 447.403, Chapter 01-43, Laws of Florida, Sections 5, 13, 14, 20, 21, 22, and 37, and the impasse resolution section of the General Appropriations Act (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8).

C. As to Count 3, Court should declare unconstitutional and void, as a violation of Article III Section 12 of the Florida Constitution, and logrolling, the impasse resolution section of the General Appropriations Act (Exhibit H), Items 4.A.3), 4.A.5), 4.A.6), and 4.A.8).

D. As to Count 4, Court should declare unconstitutional and void, as an unconstitutional waiver of the right to collectively bargain under Article I Section 6 of the Florida Constitution, Chapter 01-43, Laws of Florida, Sections 5, 6, 7, 8, 12, 13, 14, 18, 19, 20, 21, 22, 37 and 38, and the impasse resolution section of the General Appropriations Act (Exhibit H), Items 4.A.5), 4.A.6), and 4.A.8).

E. As to Count 5, Court should declare unconstitutional and void, as a violation of the equal protection clauses of the Federal and Florida Constitutions, Chapter 01-43, Laws of Florida, Sections 21, 22, 44 and 45.

F. As to Count 6, Court should declare unconstitutional and void, as a violation of Article I Section 6 of the Florida Constitution, Chapter 01-43, Laws of Florida, Section 44.

G. As to Count 7, the Court should declare unconstitutional and void, as a violation of the due process clauses of the Federal and Florida Constitutions, Chapter 01-43, Laws of Florida, Section 22.

3. Enter a writ of mandamus, directing Defendant Harris to expunge unconstitutional proviso language from the 2001-2002 General Appropriations Act.

4. Fashion an appropriate method of impasse resolution for the protection of public employees' rights under Article I Section 6 of the Florida Constitution, and direct its enforcement, until further order of the Court.

5. Provide such other and further relief as the Court deems just or appropriate.
Ben R. Patterson
Fla.Bar No. 124377


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Jerry G. Traynham
Fla.Bar No. 212806
Patterson & Traynham
315 Beard Street
Post Office Box 4289
Tallahassee, Florida 32315-4289
(850) 224-9181
facsimile (850) 222-7438

John C. Dempsey
1101 17th Street N.W., Suite 1210
Washington, D.C. 20036
(202) 775-5900
Of Counsel