On July 28, the City filed a motion for summary judgment, which the Commission referred to the hearing officer for a ruling. On August 9, the FOP filed its response to the motion for summary judgment.

On August 16, the hearing officer issued his recommended order granting the City's motion for summary judgment. The hearing officer concluded that the City did not make any unlawful ex parti communications during the "insulated" period or engage in any other improper conduct violative of Section 447.501(l)(a) or (c). Both parties timely filed exceptions to the hearing officer's recommended order. The FOP also filed a motion requesting oral argument. Because we have concluded that the issues raised in his case can be resolved without oral argument, the FOP's motion s denied.

As noted above, the hearing officer resolved this case by granting the City's motion for summary judgment. In considering the City's motion, the hearing officer accepted as true all of the FOP's factual allegations, and considered them in the light most favorable to the FOP.

The facts accepted by the hearing officer reveal that the FOP and the City were parties to a collective bargaining agreement which expire on September 30, 1992. The FOP declared impasse on October 6, but the parties continued to negotiate. The Commission appointed a special master on November 18.

The parties orally agreed to waive the special master process on December 10. A written waiver of the special master process was not executed until February 17, 1993, one day prior to the legislative body impasse hearing. The FOP contends that the failure to procure a written waiver was inadvertent and that the written waiver should relate back to the date of the oral agreement, December 10. Then, according to the FOP, the "insulated" period during which the City Commission could not engage in ex parts communications with the parties began on December 11, 1992. The primary allegation in the FOP's charge is that members of the City staff engaged in ex parte communications with City Commissioners during this period.

The City asserts that the insulated period did not begin until the parties signed the written waiver of the special master on February 17, and that there were no improper communications between members of he City staff and the City Commission.

Section 447.309(1) provides that the chief executive officer of the public employer and the certified bargaining agent shall bargain collectively in the determination of the employees' terms and conditions of employment. If the parties do not reach an agreement and impasse is declared, the parties may avail themselves of the special master process set forth in Section 447.403(2). In 1984, however, the Legislature amended Section 447.403(2) to provide that "if the parties agree in writing to waive the appointment of a special master, the parties may proceed directly to resolution of the impasse by the legislative body...."

The Commission has held that when the parties use the special master process, the insulated period commences when the special master's recommendations are rejected. IAFF, Local 2135 v. City of Ocala, 5 FPER & 10252 (1979), aff'd, 394 So.2d 1156 (Fla. 1st DCA 1981). After the special master recommendations have been rejected, the parties at impasse should not engage in ex parte communications with the legislative body regarding the impasse items to insure the neutrality of the legislative body. Id.

In Jacksonville Association of Firefighters, I.A.F.F., Local 122 v. City of Jacksonville, 15 FPER & 20327 (1989), the Commission held that it was also appropriate to provide an insulated period when the parties have waived the special master process. Although the e Commission held that the insulated period begins on the date toe parties agree to waive the special master process, the Commission did not expressly state that the agreement to waive the special master process is required to be in writing.

The seminal issue in this case is whether an agreement to waive the special master process must be in writing. The hearing officer concluded for several reasons, that a waiver of the special master process should not be effective, and the insulated period should not begin, until a written waiver is signed by the parties. The hearing officer first noted that a clear statutory provision should be given its plain meaning, and that the Legislature expressly provided in Section 447.403(2) that the agreement be in writing. Additionally, if the parties had intended for their written agreement to be retroactive to the date of their oral agreement, they could have accomplished it by including such language in their agreement. Moreover, requiring a written waiver ensures that all parties are on notice as to when the insulated period commences, and prevents protracted litigation about such issues as when and under what circumstances an oral waiver is effective.

Upon consideration of the parties' arguments, and for the reasons stated by the hearing officer, we agree that it is appropriate to require that the parties sign a written agreement to waive the special master process. As the hearing officer noted, a written agreement provides the parties and the Commission with bright line defining the commencement of the insulated period and voids the numerous pitfalls associated with an oral agreement. Thus, in this case the insulated period began on February 17, 1993. The FOP's exception nine, which challenged the hearing officer's conclusion on this issue, is denied.

In exception four through eight, and ten, the FOP asserts that the hearing officer was without authority to cancel the evidentiary hearing, grant the motion for summary judgment, and in effect, overrule the General Counsel's notice of sufficiency. We disagree. Florida Administrative Code Rule 38D-13.006(3) provides that certain motions, including motions for summary judgment, must initially be considered by the Commission, but may be referred to the hearing officer for a ruling. This is exactly what occurred in this case. On July 30, we referred the City's motion for summary judgment to the hearing officer for ruling. The hearing officer, after receiving the FOP's response, ruled on the motion, The commission's hearing officers have the authority to manage their cases and rule on all motions referred to them by the Commission.

The FOP's argument that the hearing officer should not have canceled the evidentiary hearing when disputed facts existed is not persuasive. Given that the hearing officer accepted as true all of the facts averred by the FOP in its charge, the FOP could not have received any more positive determination as concerns the facts, than it did. In fact, the results could have been much worse for the FOP; because the hearing officer might have determined, after an evidentiary hearing, that some or all of the FOP's allegations were untrue.

The hearing officer accepted the FOP's facts as true, determined that, as a matter of law, those facts did not establish a violation of Section 447.501(l)(a) and (c), and recommended that the charge be dismissed. This is within the authority of the hearing officer. The fact that the hearing officer's determination had the effect of reversing the General Counsel's notice of sufficiency is of no moment. The General Counsel should find sufficient any charge alleging a novel issue of law. See Hillsborough County PBA v. City of New Port Richey, 11 FPER & 16179 (1985). However, this does not mean that once the charge is found sufficient, that an evidentiary hearing must be conducted. If the legal issues in a case can be resolved without an evidentiary hearing, then that is an appropriate method of disposing of the case. Based upon the foregoing discussion, the FOP's exceptions our through eight, and ten, are denied.

In the FOP, second exception, the FOP challenges two of the hearing officer's conclusions. First, the FOP asserts that the hearing officer erroneously concluded that the FOP's allegations that the City sought to "punish" or "teach the FOP a lesson" were not sufficient, by themselves, to establish an unfair labor practice. We agree with the hearing officer's determination. The FOP alleged that the City made certain statements during the insulated period which were unlawful because they occurred during the insulated period. The FOP did not allege that these statements, had they occurred outside of the insulated period, were unlawful. We will not allow the FOP to amend its charge at this late date. Thus, this portion of the exception is denied.

Finally, the FOP asserts that the City's staff delivered a package of documents regarding the City's position on the impasse issues to the City Commission on February 17. The hearing officer concluded that there was no clear allegation in the FOP's charge that this delivery of the written package occurred after the parties had executed the written waiver. We conclude that, even if this allegation is true, in the context of this case it is not significant enough by itself to constitute a violation of Chapter 447, II. Thus, this exception is denied.

The City has filed three exceptions to the hearing officer's recommended orders. In its first exception, the City excepts to the hearing officer's finding that the City Commission, acting as the legislative body, rejected all of the FOP's proposals and that all the City Manager's proposals were accepted. The City asserts that the FOP admitted in its amended charge that the City Commission rejected the City Manager's "time pool" proposal and approved a two percent wage increase rather than the one percent increase recommended by the City Manager. Upon review of the record, it appears that the City's exception has merit. Therefore, this exception is granted and the recommended order is modified to reflect these facts.

The City contends in exception two that the hearing officer erred by failing to determine that even if certain statements by the mayor and City commissioner did occur during the insulated period, such communications were not unlawful because they did not contain any promise of benefit or threat of reprisal. We agree with the hearing officer that it is unnecessary to decide this issue. Therefore, exception two is denied. We note for the City's benefit that the Commission's decision in Jacksonville Association of Firefighters, I.A.F.F., Local 122 v. City of Jacksonville, 15 FPER & 20327 (1989), fully sets forth the Commission case law on the type of statements which are prohibited during the insulated period.

Finally, in its last exception the City asserts that the hearing officer erred in failing to recommend an award of reasonable attorneys fees to the City. We agree with the hearing officer that the charge was not frivolous, unreasonable, or groundless because it presented an issue of first impression which was subject reasonable debate. Therefore, the City's exception three is denied.

To summarize we conclude that an agreement to waive the special master process will not be effective unless it s in writing. When the parties waive the special master process, the insulated period begins upon execution of the written agreement. The FOP's unfair labor practice charge is DISMISSED.

This order may be appealed to the appropriate district court appeal. A notice of appeal must be received by the Commission and the district court of appeal within 30 days from the date of this order. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. Further explanation of the right to appeal is provided in Sections 120.68 and 447.504, Florida Statutes, and Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Commission within 15 days from the date of this order. The motion shall state the particular

points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-l5.005.

It is so ordered.

HORNE,. Chairman, SLOAN and ANTHONY, Commissioners, concur.

I HEREBY CERTIFY that this document was filed and a copy served on each party on October 15, 1993.

BY:_____________________

Clerk

/SIM