In its managerial/confidential petition filed in 1979, the College sought to designate the following secretaries as confidential employees:

Executive Secretary to the President

Secretary III to Dean of Personal Affairs Secretary IV to Vice

President for Academic Affairs/Executive Vice President

Secretary IV to Vice President for Student Affairs

Secretary II to Vice President for Academic Affairs/Executive Vice President

Secretary IV to Comptroller

Secretary III to Provost

Secretary III to Assistant to President

At the same time, the College sought to have the Registrar designated as managerial.

At the hearing on the petition, the College and the Union stipulated that: (1) All eight secretaries have access to confidential memoranda dealing with recommended disciplinary actions which have yet to be approved; (2) all eight secretaries are employed by a manager within the meaning of the Public Employees Relations Act (PERA), are privy to confidential information relating to the managerial functions of that individual, and the memoranda, documents and personal letters that they are privy to are documents not accessible to the public under Florida law; (3) the eight secretaries have access to the materials used in the Monday meetings of the Presidents staff at which policy, discipline, and changes in the organizational structure of the college are decided; (4) the Secretary to the comptroller would be privy to the facts and figures used by the management team in the event of collective bargaining; (5) the Secretary to the Dean of Personal Affairs, the Secretaries to the Vice Presidents as well as the Executive Secretary to the President, would be intimately involved in the preparation of contract proposals in the event of collective bargaining and would have access to the memoranda accumulated in support of positions taken by the management bargaining team; and (6) the Executive Secretary to the President, the Secretary to the Dean of Personal Affairs, and the Secretary to the Assistant to the President are privy to confidential documents relating to litigation which the college is involved in under the various federal acts and the legal documents and work product of the law firm representing the college in its labor matters.

With regard to the Registrar, it was stipulated that: (l) He is paid a salary at the dean level and employs directly, or through supervisors working under him, approximately twenty-five people; (2) he has the authority to recommend termination of anyone under his supervision and his recommendations have always been accepted; (3) he requests merit increases for his subordinates which have been accepted over 95% of the time; and (4) he would be directly involved in any collective bargaining process especially with regard to proposals relating to classroom size or utilization and would be called upon to inform negotiators concerning the impact certain proposals would have on students, No other evidence was introduced with regard to these positions.

The hearing officer recommended that the President, Dean of Personal Affairs, Vice President for Academic Affairs, Executive Vice President, Vice President for Student Affairs, Comptroller, Provost, the Assistant to the President, and the Registrar be designated as managerial. PERC accepted his recommendation except as to the Registrar, and designated each of the positions (excepting the Registrar) as managerial.

With regard to the Executive Secretary to the President, Secretary III to Dean of Personal Affairs, Secretary IV to Vice President for Academic Affairs/Executive Vice President, Secretary IV to Vice President for Student Affairs, Secretary II to Vice President for Academic Affairs/Executive Vice President, the hearing officer recommended that they be designated as confidential employees because they would be required to prepare memoranda concerning contract proposals for the above college employees which he recommended be designated as managerial.

The hearing officer also recommended that the Secretary to the Assistant to the President be designated as confidential since she prepares legal documents and other work products for the Colleges labor law firm and is exposed to documents confidential as a matter of law in assisting a managerial employee in performance of one of the managerial criteria set forth in Section 447.203(4), Florida Statutes.

Although the Secretary to the Comptroller would, if collective bargaining ensued, provide the management team with facts and figures in written form to support managements position during negotiations, the hearing officer found that she did not have access to information which is confidential as a matter of law because this information merely assisted the employer in preparation for collective bargaining negotiations and was not equivalent to access to information regarding the employers negotiating position. Collier County Association of Educational Office and Class Aide Personnel and School Board of Collier County; In Re Managerial/Confidential Application of School Board of Collier County, 4 FPER ¶ 4105 (1978). Though the Secretary to the Comptroller prepared memoranda concerning recommended disciplinary action of other employees, he noted that the School Board had not cited any law exempting his information from the Public Records Act and therefore he felt this did not result in a finding that she aided or assisted a managerial employee in a confidential capacity. Sarasota County Teachers Association v. School Board of Sarasota County, Florida, In Re Managerial/Confidential Petition of the School Board of Sarasota County, Florida, 5 FPER ¶ 10149 (1979). Nevertheless, he recommended that the Secretary be designated as confidential because she was the personal secretary to a managerial employee and consequently a per se confidential employee under this courts decision in School Board of Palm Beach County v. Florida Public Employees Relations Commission, 374 So.2d 527 (Fla. 1st DCA 1978), cert. den. 380 So.2d 427 (Fla. 1980).

He felt that the Secretary to the Provost should likewise be designated as a confidential employee since she is the personal secretary to a managerial employee. However, he stated that she would not otherwise meet the test established in Palm Beach County for the determination of a confidential employee since she only prepared documents relative to policy formulation and did not aid or assist a managerial employee in confidential matters.

Finally, the hearing officer recommended that the Registrar be designated managerial because he has the authority to hire, discipline, evaluate and effectively terminate his subordinates. He stated that the Registrars exercise of these functions on behalf of the College constituted a significant role in personnel administration under Section 447.203(4)(a)4.

PERCs order rejected the hearing officer's recommendation to designate the Registrar as managerial and rejected the hearing officers recommendation to designate the eight secretaries as confidential. PERC explained the basis of its decision thusly:

The Commission rejects the Hearing Officer's recommendation to designate as managerial the Registrar because the recommendation is not supported by record evidence. The Hearing Officers recommendation was based in part upon his finding that the Registrar has authority to hire his subordinates. The record is devoid of evidence in support of this finding. Furthermore, even if there were record evidence to support all of the findings of fact regarding the Registrar, such findings would fall short of the prerequisites for designation as managerial pursuant to Section 447.203(4)(a)4., Florida Statutes (1979). See Teamsters Local No. 991 v. Leon County Board of County Commissioners, 5 FPER ¶ 10130 (1979); Florida State Lodge, Fraternal Order of Police v. City of Tallahassee, 4 FPER ¶ 4344 (1978).

The Commission further declines to designate the Registrar a confidential employee since the record is devoid of evidence that he meets the criteria set forth in Section 447.203(5), Florida Statutes (1979).

The Commission rejects the recommendation to designate as confidential the following employees:

Executive Secretary to the President Secretary III to Dean of Personnel Affairs

Secretary IV to Vice President for Academic Affairs/Executive Vice President

Secretary IV to Vice President for Student Affairs

Secretary II to Vice President for Academic Affairs/Executive Vice President

The Hearing Officer based his recommendation regarding the above employees on his finding that those secretaries "would be required to prepare memoranda concerning contract proposals...." The Commission has held that a confidential designation cannot be based upon prospective duties but "must be based upon current job duties actually required and performed." In re Managerial/Confidential Petition of the Collier County Board of County Commissioners, PERC Order No. 80E--098 (May 16, 1980). There is no other evidence in the record to support a confidential designation for the above-named secretaries. Accordingly, the Commission declines to designate these secretaries confidential.

The Commission rejects the recommendation to designate as confidential the Secretary IV to Comptroller and the Secretary III to Provost. The recommendation was based solely on their status as personal secretaries to managerial employees. In the absence of any record evidence that they actually perform confidential duties for managerial employees the Commission will not designate them confidential. See In re Managerial/Confidential Petition of the Collier County Board of County Commissioners, supra.

The Commission rejects the recommendation to designate as confidential the Secretary III to Assistant to President. The recommendation was based upon her exposure to confidential documents in connection with her assistance and aid to the Petitioners private labor attorneys. A confidential designation must be based upon confidential duties performed for a managerial employee. The record does not support such a finding.

We reject PERCs conclusions with regard to the eight secretaries and Registrar. Without reiterating the evidence previously detailed, we conclude that the undisputed record evidence clearly qualifies the eight secretaries in question as confidential and the Registrar as managerial.⁽³⁾

[1] PERC urges that a confidential designation for the first five enumerated secretaries should be rejected because the hearing officers recommendation was based on prospective duties in connection with collective bargaining, whereas, a confidential designation must be based upon current job duties actually required and performed. According to PERCs view, this interpretation is mandated by the language of Section 447.203(5), defining confidential employees, and the language of Section 447.203(4), defining managerial employees. PERC argues that the legislature clearly provided for prospective involvement of a managerial employee by the wording of subsection (a)2 of Section 447.203(4) which reads: "May reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations." In contrast, PERC points out, the language of Section 447.203(5) that "'Confidential employees are persons who act in a confidential capacity to assist or aid managerial employees as defined in subsection (4)" indicates that a confidential designation must be based upon current job duties actually performed. PERC reasons that by including the language "may reasonably be required" in Section 447.203(4)(a)2, and omitting equivalent language from Section 447.203(5), the legislature has evidenced its intent to limit confidential designations to those employees currently performing confidential tasks.

We reject PERCs analysis of the statutory language, because we can find no basis for the conclusion that the legislature intended that a managerial designation may be based upon prospective duties of an employee, while a confidential designation for his personal secretary must be withheld until the secretary actually commences the handling of confidential matters relating to collective bargaining. Initially we note that the introductory language in both statutes, Section 447.203(4) and (5), is cast in the present tense. Only one of the seven paragraphs of subsection (a) of Section 447.203(4) is in the future sense. We agree with the college that such language does not evidence intentional and purposeful disparate inclusion or exclusion. To follow PERCs reasoning produces the illogical and unjustified conclusion that a public employer may introduce evidence that a managerial employee will in the future prepare materials for the conduct of collective bargaining on behalf of the employer but may not show that the managerial employees secretary will edit, proofread or type this material. Further, by making the additional requirement that a confidential designation must be based upon current duties involving a single aspect of the managerial employees position, PERC has imposed a requirement above and beyond those imposed by the legislature in Section 447.203(5) in contravention of this courts holding in Palm Beach County, supra.⁽⁴⁾

[2] Next, PERC concluded that the Secretary III to the Assistant to President should not be designated confidential since her confidential duties were not performed for a managerial employee hut were performed for the colleges labor law firm. This conclusion ignores the other undisputed record evidence of confidential duties performed by all of the secretaries. Further we agree with the college that the secretary or secretaries who are privy to and help prepare documents relating to litigation that the college is involved in and documents and the work product of the labor law firm representing the college are confidential employees.

[3] Finally, with regard to the Secretary to the Comptroller and the Secretary to the Provost, PERC urges that the hearing officer incorrectly based his recommendation that they be designated confidential solely on their status as personal secretaries to managerial employees. In making this recommendation, the hearing officer relied upon this courts decision in Palm Beach County, a case which PERC states was overruled by this courts subsequent decision in School Board of Lee County v. Florida Public Employees Relations Commission, 382 So.2d 1260 (Fla. 1st DCA 1980). However, we agree with the college that even if the hearing officers reliance upon Palm Beach County was misplaced, there is ample record evidence supporting a confidential designation for these two secretaries. We find that the hearing officer reached the right conclusion and that PERC was not justified in ignoring his recommendation. Firestone v. Firestone, 263 So.2d 223 (Fla. 1972); In Re Estate of Yohn, 238 So.2d 290 (Fla. 1970).

In Palm Beach County, this court held that "the personal secretary of a managerial employee such as a school principal is, by definition, 'one who aids or assists a managerial employee in confidential matters." In Lee County, this court stated that the Palm Beach County case simply determined as a matter of law that the personal secretary of a school principal is, by definition, a confidential employee. The court declined to extend that categorical ruling to include all secretaries for other managerial employees in the school system. Although PERC had previously interpreted Palm Beach County as finding personal secretaries to managerial employees to be per se confidential employees, PERC now contends that the holding of that case was limited in Lee County, so that it now stands for the proposition that only the personal secretary of a school principal is a per se confidential employee. An alternative reading of this aspect of Lee County suggests that it did not overrule Palm Beach County's holding that the personal secretary of a managerial employee is per se a confidential employee but simply declined to extend that ruling to other (not personal) secretaries of managerial employees. We think the latter interpretation of Lee County is correct, but in any event, that case would not dictate a contrary result here because the record before us amply supports the determination that these two secretaries acted in a confidential capacity to assist or aid managerial employees. This satisfies the two-pronged Palm Beach County test, which was left undisturbed by the Lee County decision.

In passing, we would like to comment on the hearing officers statement that though the Secretary to the Comptroller prepared memoranda concerning recommended disciplinary actions of other employees, this did not result in a confidential designation because no law was cited exempting this information from the Public Records Act. In making this determination, the hearing officer relied on PERCs decision in Sarasota County Teachers Association v. School Board of Sarasota County, Florida, In Re Managerial/Confidential Petition of the School Board of Sarasota County, Florida, a case which held that an employee was not confidential because the files he had access to were not exempt from public inspection pursuant to the Public Records Act. PERC cited no authority for this proposition in the Sarasota County case, and we find none. We disagree that the confidential designation of a public employee should hinge on whether that employee has access to information exempt from the Public Records Act. We would comment that many confidential matters are not made a matter of public record at all. Further, many communications to which a personal secretary would be privy are not required to be kept as a matter of record. Therefore, this limitation which PERC has added to the definition of a confidential employee ignores the realities of many confidential communications between a managerial employee and one who aids or assists him in his managerial capacity. Nevertheless, as we recognized earlier, the hearing officer reached the right result in determining that this secretary was a confidential employee even though for the wrong reason.

[4] Lastly, the Registrar is the head of a recognized division of the college, in charge of approximately twenty-five employees. He is paid a salary at the dean level; his recommendations concerning termination of employees under his supervision are always accepted; his request for merit wage increases for his subordinates are accepted 95% of the time, and he has the overall responsibility for evaluating his subordinates. Taken as a whole, we agree with the College that the Registrar has a significant role in personnel administration within the College framework. This is not a case in which the employee simply makes effective recommendations for hiring and firing. Further, the Registrar will be intimately involved in collective bargaining relative to classroom size, the utilization of facilities, and the impact upon students of various proposals. We make no ruling that these functions rise to the level necessary to bestow managerial status upon the Registrar under Section 447.203(4)(a)1 and 2, but merely state that this evidence when considered in conjunction with the other record evidence clearly warrants a managerial designation for the Registrar.

Accordingly, PERCs order is reversed and the cause is remanded for entry of an order consistent with the holding herein.

THOMPSON, J.. and OWEN, WILLIAM C., Jr. (Ret.), Associate Judge, concur.

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PUBLIC EMPLOYEES RELATIONS COMMISSION, Petitioner,

V.

SCHOOL BOARD OF PALM BEACH COUNTY, Respondent.

No. 55452.

Supreme Court of Florida.

Feb. 7,1980.

Appeal from District Court of Appeal;

First District.

Phillip P. Quaschnick, Staff Counsel, Tallahassee, for Petitioner.

Richard L. Oftedal of Jackson, Oftedal & Goodman, West Palm Beach, for respondent.

Joseph A. Vassallo of Vassallo & Varner, Palm Springs, for Assn of Educational Secretaries and Office Personnel, amicus curiae.

The Court having accepted jurisdiction and heard argument, and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, certiorari is denied.

No Motion for Rehearing will be entertained by the Court. See Fla.R.App.P. 9.330(d).

ADKINS, BOYD, OVERTON and ALDERMAN, JJ,, concur.

ENGLAND, C. J., dissents with an opinion, with which SLNDBERG and McDONALD, JJ., concur.

ENGLAND, Chief Justice, dissenting.

I respectfully dissent from the majoritys determination that we lack jurisdiction under article V section 3(b)(3) of the Florida Constitution to consider this case on its merits, I could understand if my colleagues chose to exercise their constitutional authority by reaching the merits and affirming the divided opinion below,⁽⁵⁾ but I cannot understand why we lack the jurisdiction to consider this case on its merits.

The predicate for our jurisdiction is a "direct conflict with a decision of any district court of appeal. . ."⁽⁶⁾ A more direct conflict would be hard to imagine.

The majority opinion below states, with reference to the definition of "confidential employees" in section 447.203(5), Florida Statutes (1977):

There is no need for PERC to reconstruct the statutory definition and thereby undertake the case-by-case evaluation of the confidential status of personal secretaries to each and every school principal in the state. The Legislature intended, and no doubt believed, that its enactment of the statute in question eliminated the necessity for factual determinations as to the confidential status of such employees.⁽⁷⁾

Section 447.203(5) also was considered and addressed in City of Winter Park v. Florida Public Employees Relations Commission, 349 So.2d 224 (Fla. 4th DCA 1977), where the court said:

Section 447.203 provides definitions for "managerial" and "confidential" employees who are to be excluded from collective bargaining. It is obvious by these definitions that a factual determination must be made in each individual case as to whether certain employees fall within these categories or not. Once this determination is made by the Commission our authority is limited to a determination of whether there has been a departure from the essential requirements of law and whether there is competent substantial evidence to support the determination.⁽⁸⁾

In light of these conflicting interpretations, it is unclear whether the Public Employees Relations Commission must make individual factual determinations, on a case-by-case basis, in processing petitions which seek to designate certain employees as "confidential" under section 447.203(5). This Court should exercise its conflict jurisdiction to resolve this question.

SUNDBERG and McDONALD, JJ,, concur.

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SCHOOL BOARD OF PALM BEACH COUNTY, Petitioner,

V.

FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION, Respondent.

No. II--9.

District Court of Appeal of Florida

First District.

Oct. 4, 1978.

Smith, J., dissented and filed opinion.

See publication Words and Phrases for other judicial constructions and definitions.

Richard L. Oftedal of Jackson, Oftedal & Goodman, West Palm Beach, for petitioner.

Phillip P. Quaschnick, Public Employees Relations Commission, Tallahassee, for respondent.

Joseph A. Vassallo, Lake Worth, for amicus curiae, Palm Beach Assn of Educational Secretaries and Officer Personnel.

BOOTH, Judge.

This cause is before us on petition for review of final agency action by the Florida Public Employees Relations Commission (PERC) dated October 10, 1977. The question presented is whether that Order correctly interprets Florida Statute § 447.203(5) as requiring a factual determination as to the "confidential" status, and thereby exclusion from collective bargaining, of the personal secretaries of school principals.

The Palm Beach Association of Educational Secretaries and Office Personnel (Association)⁽⁹⁾ applied for certification as the exclusive bargaining agent of certain employees of the Palm Beach County School Board. Thereafter, the Board filed a petition to have certain employees designated "confidential." On December 15, 1975, PERC certified the Association as the exclusive collective bargaining representative of the School Board for certain designated employees, including secretaries to principals. On September 9, 1976, however, PERC preliminarily determined that secretaries to principals are confidential employees and thus excluded from the bargaining unit. The Association filed for reconsideration of that determination and, on March 15, 1977, PERC entered an order finding that the record contained insufficient facts to support a finding that secretaries to principals are confidential employees under Florida Statute § 447.203(5). The cause was remanded for further hearing on the issue of confidentiality. Hearing was subsequently held, and pursuant to Florida Statute § 447.203(3)(d), evidence was taken on issues presented by the School Boards petition.

The final order hereunder reviewed holds in pertinent part as follows:

"[C]hapter 447 expressly defines 'confidential employees. The Acts definition, however, is not as broad as the Public Employer suggests. It requires a nexus between the potentially confidential employee and an individual performing managerial functions as set forth in Section 447.203(4)(a)(1--5, 7). A confidential employee exclusion cannot be justified unless the potentially confidential employee is so closely aligned with a designated managerial employee that the managerial exclusion could be meaningless absent a similar exemption for those who assist in the performance of the confidential managerial functions.

In determining whether an employee is a confidential employee, the Commission will first determine whether the employee aids or assists a managerial employee as defined in Section 447.203(4), Florida Statutes. If so, the Commission will then determine whether the employee aids or assists the managerial employee in the performance of duties as outlined in Section 447.203(4)(a)(1-5, 7), Florida Statutes. Finally, it will determine whether the managerial information to which the employee is exposed is confidential rather than accessible to public employees as defined in the Act or to the general public. When the Commission is asked to classify an employee as confidential, the party making the request is asking the Commission to apply a statutory limitation of a constitutional right. The request will not be granted unless the record establishes by clear and convincing evidence that all three criteria are met."

Following the foregoing statement of a three-pronged test for determination of confidential status, the Commission allowed confidential status as to the secretaries of some principals and disallowed it as to others, the latter being primarily those on whose behalf no testimony was presented.

Florida Statute § 447.203(5), is as follows:

"'Confidential employees are persons who act in a confidential capacity to assist or aid managerial employees as defined in subsection (4)."

The plain language of this statute requires confidential status for an employee who (1) assists a managerial employee as defined by § 447.203(4)(a) classification for which school principals admittedly qualify), and (2) aids or assists that managerial employee in confidential matters. The statute states no further limitations or criteria to be met. PERCs effort to further limit the confidential status by imposing as additional requirements the performance of duties outlined in § 447.203(4)(a)(l) thru (7), is improper. The Legislature is competent to impose such additional requirements; PERC is not.

[1] We hold that the personal secretary of a managerial employee such as a school principal is, by definition, "one who aids or assists a managerial employee in confidential matters." The statute does not require a "nexus" between the confidential matters and the particular managerial duties of the principal listed in § 447.203(4).

The Commission and the Association have sought to create a factual question as to which individual within a particular schools staff is personal secretary to the principal. We believe that this problem, if it exists at all, is more imagined than real and is of small consequence compared to the factual questions PERC proposes to settle on a large scale basis at taxpayer expense. The findings below, of record here, are that each of the eighty-six school principals has a personal secretary who is recognized as such.⁽¹⁰⁾ If there are exceptions to that general rule and greater certainty is required in designating the position of personal secretary as a result of Florida Statute § 447.203(5), and this decision, then that designation doubtless will be accomplished. There is no need for PERC to reconstruct the statutory definition and thereby undertake the case-by-case evaluation of the confidential status of personal secretaries to each and every school principal in the state. The Legislature intended, and no doubt believed, that its enactment of the statute in question eliminated the necessity for factual determinations as to the confidential status of such employees. Nor should there be any question in mind of an individual applying for, or being asked to transfer to, such a position that it has confidential status and is excluded from collective bargaining.

Petitioner points out that the interpretation urged by PERC would require constant re-evaluation as the personnel and duties within a particular school changed. Fortunately, this interpretation is not required by the statute. Our review of the record below shows that the statutory determination of confidentiality accords with the actual facts as to duties performed by the secretaries in question here, as well as with the common experience and understanding of the nature of that employment.

In view of our decision on this point, it is unnecessary to determine the factual questions concerning confidential status of the secretaries to school principals whose particular duties were not in evidence below,⁽¹¹⁾ or the final point concerning the failure of the Commission to follow certain procedural requirements of Florida Statute Chapter 120.

Accordingly, the Order sought to be reviewed is SET ASIDE and the cause REMANDED with directions for entry of an order consistent herewith.

BOYER, Acting C. J., concurs.

SMITH, J., dissents.

SMITH, Judge, dissenting:

I think the court errs in two respects: in supposing that the term "personal secretary to a principal" has an accepted and uniform meaning in the Palm Beach County school system, or in law; and in overthrowing a legitimate interpretation of the statutory term "confidential employee" by the agency which is invested with legislative authority to interpret and apply that term in the context of the Public Employees Relations Act.

It is not as a result of PERCs doings that there are troublesome factual issues over the meaning of the term "personal secretary" and the functions of employees so designated. The term "personal secretary to a principal" does not occur in the school systems job descriptions; indeed, the boards petition for determination of confidential employees does not use the term, but speaks only of "secretary to school principal" and of 29 other secretaries. Consequently, the school board has not prescribed the duties of a "personal secretary" to a principal. Many principals in the system evidently have informally designated a senior secretary in the office as his or her "personal secretary," but the evidence does not show that the designation necessarily entails certain duties which may be characterized as confidential in either statutory or everyday terms. Certainly the evidence does not show that such an informal designation of one secretary connotes exclusion of other secretaries, administrative assistants, deans, counselors, and teachers from "confidential" assistance roles in the broad sense in which the majority uses the term. The effect of this decision, then, is to prescribe one personal secretary (or more?) for each of Palm Beach Countys 87 schools and to permit each principal to designate for that position one person (or more?) to assist the principal in what are loosely characterized as confidential matters. In this I conceive the court has undertaken to exercise responsibilities better left to the Palm Beach County school board and to PERC.

Section 447.203(5) does not define "confidential employees" except to say that they are "persons who act in a confidential capacity to assist or aid managerial employees PERC considers that the key phrase, "in a confidential capacity," refers to managerial work which PERA is concerned to preserve unaffected by union loyalty, i.e., work of managerial employees in formulating policies applicable to bargaining unit employees, in preparing for collective bargaining, in administering collective bargaining agreements, in personnel administration or employee relations, and in preparing and administering budgets. Section 443.203(4)(a). The majority expands the confidential employee exemption to include all personal secretaries, irrespective of function, and by implication all others who assist the principal in "confidential matters." The expanded class thus includes guidance counselors who assist the principal in confidentially evaluating a students academic future, the classroom teacher who assists the principal in confidentially resolving a student disciplinary problem, the coach who assists the principal in confidentially advising a student in his personal problems, and any stenographer who assists the principal by typing confidential memoranda on those subjects. I do not think that interpretation of the critical language in Section 447.203(5) is a permissible one, let alone the only permissible one. PERCs interpretation of the statute is permissible and it should be sustained. State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823, 828 (Fla.1973):

Such administrative construction of the statute by the agency or body charged with its administration is entitled to great weight and will not be overturned until clearly erroneous.

PERCs final order granted confidential status to the "personal secretaries" of the few principals who are members of the superintendents bargaining team and to three additional secretaries who the record shows substantially assist their principals in managerial work which PERA maintains inviolate. Section 447.203(4)(a). PERCs denial of confidential status to other secretaries who were called to testify, and to all "personal secretaries" as a class, was without prejudice to a reapplication for confidential status. There is no reason to suppose that PERC would deny a class designation when and if the school board creates a confidential class and defines the duties of its members, or that PERC would deny confidential status to individuals who are shown to have the requisite duties. To indiscriminately extend the class is to deny all its members, some of whom are both enthusiastic union members and faithful working companions of their principals, the right to bargain collectively. In my opinion, the majority paints with too broad a brush. I would affirm.

1. Section 447.2O3(4) "Managerial employees" are those employees who:

(a) Perform jobs that are not of a routine, clerical, or ministerial nature and require the exercise of independent judgment in the performance of such jobs and to whom one or more of the following applies:

1. They formulate or assist in formulating policies which are applicable to bargaining unit employees.

2. They may reasonably be required on behalf of the employer to assist in the preparation for the conduct of collective bargaining negotiations.

3. They have a role in the administration of agreements resulting from collective bar. gaining negotiations.

4. They have a significant role in personnel administration.

5. They have a significant role in employee relations.

6. They are included in the definition of administrative personnel contained in a. 228.041(10).

7. They have a significant role in the preparation or administration of budgets for any public agency or institution or subdivision thereof.

2. Section 447.2O3(5) "Confidential employees" are persons who act in a confidential capacity to assist or aid managerial employees as defined in subsection (4).

3. As to the effect of stipulations generally, see Manatee County v. Florida Public Employees Relations Commission, 387 So.2d 446 (Fla. 1st DCA 1980).

4. PERCs analysis and ruling applies the so-called "labor nexus standard," which was rejected in Hendricks County Rural Electric Membership Corp. v. NLRB, 627 F.2d 766 (7th Cir. 1980), and in the same courts earlier decision in the same case, 603 F.2d 25 (7th Cit. 1979). Under that standard, a confidential designation may he applied to a secretary only if she assists and acts in a confidential capacity to persons who formulate, determine and effectuate management policies in the field of labor relations. The court held that all secretaries working in a confidential capacity, "without regard to labor relations," should be excluded from the Taft-Hartley Act. However, it should be noted that the United States Supreme Court on March 2, 1981 granted review of the ruling, Case No. 80--885, NLRB v. Hendricks County Rural Electric Membership Corp., -- U.S. ---, 101 S.Ct. 1479, 67 L.Ed.2d 612 (1981).

5. School Board of Palm Beach County v. Florida Public Employees Relations Commission, 374 So2d 527 (Fla. 1st DCA 1978).

6. Art. V § 3(b)(3), Fla.Const.

7. 374 So.2d at 529.

8. City of Winter Park v. Florida Public Employees Relations Commission, 349 So2d 224, 225 (Fla. 4th DCA 1997).

9. The Palm Beach Association of Educational Secretaries and office personnel filed a brief as amicus curiae in this case.

10. Proposed Order of PERC, June 16, 1977:

"The record discloses that employees designated as 'personal secretaries to principals who are not on the [collective] bargaining team have numerous duties and responsibilities distinguishing them from other office clericals. In addition to a degree of supervisory authority over other clericals, many personal secretaries have access to materials which are not intended for viewing by other school employees, including the handling and typing of personnel evaluations, letters of reprimand and material relating to grievances. Often times the personal secretary is the only employee with access to personnel files and has been instructed to keep matters revealed in that capacity confidential. Certain personal secretaries have been utilized in the past as a witness during an employee conference. Furthermore, personal secretaries have access to their principals response to the Superintendents office concerning matters relating to collective bargaining strategy or proposals."

11. Hearing Officers Report dated May 17, 1977:

. . . As a general rule, principals use one secretary as a personal secretary to handle his correspondence, phone calls, typing and other similar personal secretarial duties

. . . The principals personal secretary is usually deemed the head secretary in the office and, in many cases, is separated from the other office secretarial and clerical staff

. . . Generally, the larger the school secretarial staff, the greater the autonomy of the personal secretary. These personal secretaries have access to material which is not for viewing by other school employees, including the handling and typing of personal evaluations . . . disciplinary letters and grievance matters . . . The principals secretary also helps compile, type and administer the schools budget . . . In most cases, especially in the larger schools, the personal secretary is the only employee other than the principal with access to employee personnel files, some of which are maintained in locked files, and has been instructed as to their limited access. . ."