Town of Pembroke Park v. Florida State Lodge, Fraternal Order of Police

501 So. 2d 1294, 127 L.R.R.M. (BNA) 2791, 11 Fla. L. Weekly 1871, 1986 Fla. App. LEXIS 9512
CourtDistrict Court of Appeal of Florida
DecidedAugust 27, 1986
DocketNo. 84-767
StatusPublished
Cited by1 cases

This text of 501 So. 2d 1294 (Town of Pembroke Park v. Florida State Lodge, Fraternal Order of Police) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Pembroke Park v. Florida State Lodge, Fraternal Order of Police, 501 So. 2d 1294, 127 L.R.R.M. (BNA) 2791, 11 Fla. L. Weekly 1871, 1986 Fla. App. LEXIS 9512 (Fla. Ct. App. 1986).

Opinions

DOWNEY, Judge.

This case had its genesis in a September, 1980, decision by the appellant, Town of Pembroke Park (Town), to eliminate its eleven-man police force and to contract for police protection and coverage with the Broward County Sheriffs Department. Thereupon, the appellee, Florida State Lodge, Fraternal Order of Police (FOP), instituted an unfair labor practice case by filing a charge with the Public Employees Relations Commission (PERC), alleging that the Town violated section 447.501(l)(a), (b), and (c), Florida Statutes (1979), by refusing to meet with the FOP representatives to negotiate a successor collective bargaining agreement and by unilaterally, and in response to unit employees’ protected activities, contracting out unit work so as to avoid bargaining and otherwise dealing with the FOP as the unit’s exclusive bargaining representative. PERC entered an order on March 12, 1981, finding that the Town had violated section 447.501(l)(a), (b), and (c), by subcontracting out its police services in order to avoid entering into a new collective bargaining agreement with the FOP, to discourage membership in the FOP, and to retaliate against the FOP and its members for having filed grievances against the Town. The Commission ordered the Town to offer reinstatement to the terminated police officers, to make them whole for any loss of earnings, to bargain with the FOP, and to pay the FOP its reasonable attorney’s fees and costs.

In due course, after a frustrated appellate effort by the Town, FOP filed a petition for enforcement of PERC’s order in the Broward County Circuit Court, which proceeding was joined in by PERC. The circuit court thereafter entered an enforcement order requiring the Town to offer reinstatement to the former policemen no later than April 13, 1983, and to compensate them for any lost earnings resulting from their unlawful termination. That order was appealed to this court in Town of Pembroke Park v. State of Florida, ex rel. Healy, 446 So.2d 198 (Fla. 4th DCA 1984), without success.

While enforcement proceedings continued in the courts, the FOP initiated a back-pay proceeding before PERC to determine the amount of compensation due the officers in question. An evidentiary hearing was held before an administrative hearing officer, which lasted for approximately seven days. As a result, a Recommended Order was issued, wherein the hearing officer recommended that the officers were entitled to back pay; he fixed the amount thereof, together with interest, and suggested an award of attorney’s fees and costs to FOP as the prevailing party. Exceptions were filed primarily by the Town; oral argument was held and PERC entered its final agency order, which essentially accepted the findings and recommendations of the hearing officer with a few modifications. From that order, this appeal was perfected.

The appellate issues presented are 1) whether PERC’s ruling on back pay is supported by substantial competent evidence, particularly with regard to the question of mitigation of damages; 2) whether the elements considered in determining the amount of back pay were appropriate; 3) whether PERC had failed to properly apply its own mitigation standards; 4) whether [1296]*1296PERC erred in failing to deduct social security benefits received by one officer from the amount of back pay due; and 5) whether FOP was entitled to an award of attorney’s fees for back pay proceedings.

This case is a good example of the importance of Florida Rule of Appellate Procedure 9.210(b)(4) and (c), requiring that the briefs each contain a summary of the argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief. While some of the parties herein provided the required summary, which we found very helpful, others did not. The rule has not been uniformly complied with; thus, we take this opportunity to remind counsel that we consider the summary to be an essential component of the brief.

The main question presented in this case is that of mitigation. FOP contends PERC erred in ruling that police officers were not entitled to gross back pay without any set-offs. It argues that, as was held in Curry v. Hammond, 154 Fla. 63, 16 So.2d 523 (1944), Paquin v. City of Lighthouse Point, 330 So.2d 866 (Fla. 4th DCA 1976), and Maudsley v. City of North Lauderdale, 300 So.2d 304 (Fla. 4th DCA 1974), police officers are not ordinary “employees,” but, rather, are “officers” and, as such, unlike “employees,” any back pay due them for improper termination is not subject to a set-off in mitigation of damages.

The Town contends that the hearing officer and PERC erred in accepting the testimony of the various officers relative to their efforts to obtain other employment during the interim between their unlawful discharge and the order directing their reinstatement because it was all self-serving, uncorroborated and inadequate to show any bona fide efforts to mitigate their damages. PERC, of course, defends both the procedural and the substantive result and goes to great lengths in its final agency order describing the reasons for its holding. We find no error demonstrated in either the conclusion that mitigation should be required or in accepting and relying upon the evidence adduced by the officers.

We reject FOP’s argument that PERC erred in requiring mitigation because of the long-standing common law rule that as “officers,” as opposed to “employees,” they are not required to mitigate the damage suffered by unlawful termination of employment. It should be remembered that this case arose in the context of an unfair labor practice, which, pursuant to law, was submitted to PERC, an agency established by the legislature to, among other things, expeditiously resolve charges of unfair labor practices. In section 447.503(6)(a), Florida Statutes (1979), the legislature provided that:

If, upon consideration of the record in the case, the commission finds that an unfair labor practice has been committed, it shall issue and cause to be served an order requiring the appropriate party or parties to cease and desist from the unfair labor practice and take such positive action, including reinstatement of employees with or without pay, as will best implement the general policies expressed in this part.

Thus, the legislature has designated PERC as the forum for resolving matters such as this, involving public employees, and has specifically directed PERC to take positive action in resolving the dispute, which, in its discretion, may include allowing or disallowing back pay in order to effectuate the policy interests involved in this act.

In a somewhat similar case, Lee v. Florida Department of Highway Safety & Motor Vehicles, 438 So.2d 405 (Fla. 4th DCA 1983), involving termination of a Florida highway patrolman in a proceeding before the Career Service Commission, Judge Daniel T.K. Hurley, writing for this court, said:

[T]he dispositive issue is whether the common law distinction between police officers and employees, as it relates to awards of back pay, has survived the advent of the Career Service System.
As we view it, the enactment of Chapter 110 with its creation of the Career Service System constitutes a new, com[1297]*1297prehensive method for dealing with state employment. Trooper Lee concedes, as he must, that Florida highway patrolmen are covered by the Florida Career Service System. ...

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501 So. 2d 1294, 127 L.R.R.M. (BNA) 2791, 11 Fla. L. Weekly 1871, 1986 Fla. App. LEXIS 9512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-pembroke-park-v-florida-state-lodge-fraternal-order-of-police-fladistctapp-1986.