Deputy Court clerks can now collectively bargain: who's next?

• Author: Dietzen, Leonard J., III
• Position: Florida

Recently, in Service Employees International Union v. Public Employee Relations Commission, 25 Fla. L. Weekly S34 (Jan. 13, 2000), the Florida Supreme Court was asked to answer the following certified question: "Are deputy clerks, unlike deputy sheriffs, public employees within the contemplation of section 447.203(3), Florida Statutes?"

In answering the certified question in the affirmative, the court appears to have ignited a union brushfire that is spreading throughout Florida. This article will address the Florida Supreme Court's holding in Service Employees International and discuss its potential ramifications for thousands of appointees and employees of constitutional officers in Florida, including deputy sheriffs.

Murphy v. Mack and its Prodigy

In Murphy v. Mack, 358 So. 2d 822 (Fla. 1978), the Florida Supreme Court was confronted for the first time with the question of whether appointees of a constitutional officer possessed collective bargaining rights under F.S. Ch. 447, part II ("the act").[1] In Murphy, the Florida State Lodge, Fraternal Order of Police filed an amended petition for certification with the Public Employees Relations Commission seeking to represent certain deputy sheriffs of the Palm Beach County Sheriffs Office for purposes of collective bargaining. The Osceola County Police Benevolent Association also filed a petition for certification seeking to represent all deputy sheriffs of Osceola County Sheriff Ernest Murphy as their exclusive bargaining agent.

Both Sheriff Heidtmen, Palm Beach County, and Sheriff Murphy, Osceola County, filed motions to dismiss alleging, inter alia, that a sheriff is not a public employer and the deputy sheriffs are not public employees under the act. The motions were subsequently denied. On appeal, the First District Court of Appeal held that the sheriff is a public employer within the definition set forth in [sections] 447.203(2),[2] and further determined that although deputy sheriffs are officers, they are also public employees within the definition of F.S. [sections] 447.203(3) (1975).[3]

On appeal, the Florida Supreme Court in Murphy agreed with the lower court that sheriffs are "public employers." More significantly, for purposes of this article, the court opined that deputy sheriffs are not "public employees" within the meaning of F.S. Ch. 447.203(3), in view of the fact that deputy sheriffs hold office by appointment rather than employment and are vested with the same sovereign power as the sheriff, who is the chief law enforcement officer of the county. Additionally, the court noted in its analysis that deputy sheriffs have never been identified as public employees by state courts in the past. Because of their unique common law historical background, the court noted that there was only one way to change their status: "In the absence of language including deputy sheriffs within the definition set forth in Chapter 447, Florida Statutes (1975), we find that they are not encompassed by the act."[4]

Thus it was up to the legislature to specifically grant deputy sheriffs' collective bargaining rights.

The following year, in Ison v. Zimmerman, 372 So. 2d 431 (Fla. 1979), the Florida Supreme Court once again held that deputy sheriffs are not "public employees" within the contemplation of Ch. 447, noting that deputy sheriffs were distinguished from other employees of the sheriffs, such as secretaries.

PERC followed the holdings in Murphy and Ison in Brevard County PBA v. Brevard County Sheriff's Department, 7 FPER [paragraph] 12347 (PERC 1981), in which the commission voided a certification covering Brevard County Sheriff's Office deputies that had been issued prior to the decisions in Murphy and Ison. The commission held that these two Florida Supreme Court rulings were dispositive of the public employee status of deputy sheriffs. The First District Court of Appeal affirmed the commission's decision explaining that the determination in Murphy was not based simply on statutory construction, but also on interpretation of common law. In so ruling, the district court stated the deputies' status, having arisen out of common law, could be changed only by legislative action via state statute or appropriate local government law.[5]

Not content with the Florida Supreme Court's determination regarding their lack of collective bargaining rights, certain Florida deputy sheriffs sought class action relief in federal court. In Sikes v. Boone, 562 F. Supp. 74 (N.D. Fla. 1983), aff'd mem, 723 F.2d 918 (11th Cir. 1983), the deputy sheriffs claimed that the Florida Supreme Court's holding in Murphy violated the Equal Protection Clause of the 14th Amendment to the U.S. Constitution in that similarly situated law enforcement officers are permitted to bargain collectively while deputies are not. They further alleged that the court's interpretation of the act in Murphy violated their right to collective bargaining guaranteed them by Fla. Const. Art. I, [sections] 6. Rejecting both contentions, the federal district court noted that the Florida Supreme Court...