VOL. XXVI  . . . . . . . . . . . . July 24, 2002 . . . . . . . . . . . . . . NO. 20

PART I . . . . . . . . . . . . . . . . . . . . . . . . ORDERS ISSUED BY PERC

 

CA-2002-051; Order 02GC-159 (June 17, 2002)                                     

WESSELL A. CLARKE, Charging Party,

v.

MIAMI-DADE TRANSIT AGENCY, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by interfering in union business and discriminating against union representatives.  All the activities in the charge are deficient because they fall outside the 6 month period, so, the charge is untimely.

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CB-2002-014; Order 02GC-160 (June 17, 2002)

WESSELL A. CLARKE, Charging Party,

v.

TRANSPORT WORKERS UNION OF AMERICA, LOCAL 291, Respondent.

The General Counsel summarily dismisses the charge that the union violated the Act by failing to represent Wessell in grievance proceedings.  All the activities in the charge are deficient because they fall outside the 6 month period, so, the charge is untimely.

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EL-2002-017 (Relates to RC-2002-009) (July 18, 2002)

ORANGE COUNTY PROFESSIONAL FIREFIGHTERS, LOCAL 2057, Petitioner,

v.

ORANGE COUNTY FIRE RESCUE, Respondent.

Election results and order certifying unit 1366 for the union.  24 eligible voters cast 22 ballots for the union.

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CA-2001-071; Order 02U-161 (June 21, 2002)

RONALD SHEPHERD, Charging Party,

v.

BROWARD SHERIFF'S OFFICE, Respondent.

PERC finds that the employer did not retaliate against Sheppard for soliciting the signature cards for a representation election and did not adopt an overly restrictive union solicitation policy.  The Commission also found that an award of attorneys fees and costs was not appropriate in this case.

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CA-2002-050; Order 02GC-162 (June 24, 2002)

DONNA A. ROSARIO, Charging Party,

v.

CENTRAL FLORIDA REGIONAL TRANSPORTATION AUTHORITY, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by wrongfully terminating Rosario.  ATo establish a prima facie violation of section 447.501(1)(a), Rosario=s charge must demonstrate factual allegations establishing that she was terminated from her position because she engaged in the conduct described in 447.301.@

There is no evidence that the determination was made to discourage union membership or that Rosario was engaged in protected activity.  Further, the charge that the public employer was refusing to discuss a grievance in good faith is not supported by any evidence that the complaints arguably involved the interpretation or application of the collective bargaining contract.

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CA-2002-054; Order 02GC-163 (June 24, 2002)

FRATERNAL ORDER OF POLICE, LODGE NO. 25, Charging Party,

v.

CITY OF ORLANDO, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by withdrawing all previously negotiated agreements and implementing a car take-home policy that was opposed by the union.

A...  A single incident of revocation of a tentative agreement does not establish bad faith bargaining. ...  The charge lacks sufficient factual information for me to determine whether the City=s unilateral change was unlawful.@

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CB-2002-013; Order  02GC-164 (June 24, 2002)

DONNA ROSARIO, Charging Party,

v.

AMALGAMATED TRANSIT UNION LOCAL 1596, Respondent.

The General Counsel summarily dismisses the charge that the union violated the Act by failing to file a grievance on Rosario=s behalf when she was wrongfully terminated.

ARosario=s charge that Local 1596 failed to properly represent her does not provide the requisite factual specificity.  Rosario needs to include all the correspondence between herself and the Local President regarding her allegations, and include the dates, the events, and the names of individuals involved.  Additionally, Rosario needs to include her union=s determination letter and the collective bargaining agreement.@  Further, she, as an individual member of the bargaining unit,  does not have standing to bring a charge of refusal to bargain in good faith.

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CA-2002-045; 046; CB-2002-011; 012; Order 02GC-165 (June 24, 2002)

GEOFFREY TORRES, Charging Party,

v.

MIAMI DADE TRANSIT AGENCY, Employer.

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GEOFFREY TORRES, Charging Party,

v.

TRANSPORT WORKERS UNION, LOCAL 291, Union

The General Counsel summarily dismisses the charge that the employer and the union violated the Act by the manner in which a grievance concerning overtime was processed.

AThere is no way to tell if Torres= request for arbitration was timely because Torres was not provided a complete copy of the collective bargaining agreement as a supporting document.  Further, since there is no copy of the collective bargaining agreement, there is no indication as to whether Torres could proceed to arbitration after the first step hearing ... 

...  Torres=s mere allegation that the agency discriminated against him for his part in the filing of local 291's grievance concerning overtime on behalf of Torres and other similarly situated employees is not supported by either allegations or supporting documentation indicating unlawful animus against Torres for the filing of the grievance.  The mere fact that Torres has decided to file 20 additional grievances about various matters does not indicate anything other than a belief on his part that there are various contractual matters being violated that he wishes addressed.@

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CA-2002-037; Order 02GC-166 (June 24, 2002)

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 678, AFL-CIO, Charging Party,

v.

GREATER ORLANDO AVIATION AUTHORITY, Respondent.

The General Counsel summarily dismisses the charge that the employer violated the Act by unilaterally altering the status quo by not permitting certain employees in security areas of the airport and requiring employees to disclose whether they had pleaded guilty or nolo contendere for certain offenses, since access to these areas affect whether certain employees may remain employed.

ALocal 678's amended charge does not address the public safety and management rights issues raised by my dismissal of the original charge.  It is beyond dispute that there is an understandable and necessary heightened sense of security at airports since the tragic events of September 11, 2001.  As addressed by my original dismissal, although new federal regulations do not expressly state that airport authorities should dismiss employees for no contest pleas to felonies, the concern of the regulations and the statutes that they implement is the secure operation of airport facilities.  Further, even before the legislation, regulations and events of September 11, 2001, there were expressed statements in the parties' collective bargaining agreement about security at the Airport.  Finally, security is an implicit if not explicit management right that has been recognized by both the Florida and United States Supreme Courts. Therefore, I see no reason to recede from the reasoning of my original dismissal merely because an employee has been affected by the heighten security concerns of the Authority at the Airport in preventing persons that have pled no contest access to aircraft or passengers in secured areas.  Although the amended charge states that the "heavy equipment operator" has no direct access to an aircraft or passengers, Local 678 does not dispute that the employee works in a secured area in proximity, to aircraft in the operation of the "heavy equipment."@

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CA-2002-019; CB-2002-004; Order 02U-167 (June 25, 2002)

ANTHONY ZITNICK, Charging Party,

v.

CITY OF PEMBROKE PINES, Respondent.

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ANTHONY ZITNICK, Charging Party,

v.

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 2292, Respondent.

PERC affirms the General Counsel=s summary dismissal of the charges that the employer and the union violated the Act by refusing to process a grievance.  Despite extenuating circumstances PERC refuses to deviate from the statute regarding timeliness and adopt a different interpretation of that statutory limitation of six months to file an ULP.  Furthermore, supporting documents indicated that the union=s seven-member grievance committee considered whether to process the grievance and declined because in its opinion the grievance would not likely prevail should it proceed to arbitration, so deciding, the union fulfilled its obligation.

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EL-2002-018 (Relates to RC-2002-018); Order 02E-168 (June 26, 2002)

LEE COUNTY PUBLIC EMPLOYEES ASSOCIATION, Petitioner,

v.

LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

PERC denies the motion to permit employees who are unable to be present for the on-site election due to training, scheduled leave, or vacation to cast absentee ballots.  The union anticipates a close outcome to the election and indicates that at least 20 employees are scheduled to be on vacation or other leave at the time of the election.  However, the union does not identify any employees nor provide other pertinent information.

AThe Commission has repeatedly declined to create a special class of voters by permitting vacationing employees to vote by absentee ballot.  Pinellas Lodge No. 43, FOP v. City of Kenneth City, 25 FPER & 30256 (1999);  Seminole County Professional Fire Fighters Association, Local 3254, IAFF v. Seminole County Board of County Commissioners, 16 FPER & 21318 (1991);  Marsala v. National Association of Government Employees, 14 FPER & 19007 (1987);  Central Florida Professional Fire Fighters Association, Local 2057, IAFF v. Orange County Board of County Commissioners, 9 FPER & 4024 (1982).  The determinative factor in the Commission's decision whether to allow absentee ballots is whether the absence from the polling area was beyond the employee's control due to the performance of duties within the normal scope of employment.

Here, the Association seeks absentee ballots on behalf of vacationing employees and, despite requesting that employees at training be allowed to vote by absentee ballot, has not identified any unit members who will be absent from the polling area due to training or any other job requirement.  Indeed, the motion states that it is not known whether any employees will be out of town for training at the time of the election.@

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RC-2002-013; Order 02E-169 (June 28, 2002)

FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

CITY OF CLEWISTON,  Respondent.

PERC determines an appropriate unit and orders a secret ballot election for sworn police officers.

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VP-2002-003; Order 02VP-170 (June 28, 2002)

MICHAEL S. MALLOR, Complainant,

v.

BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

PERC dismisses the complaint agreeing with the Hearing Officer=s determination that Johnson was more qualified than Mallor.

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EL-2002-014 (Relates to RC-2001-062); Order 02E-171 (July 1, 2002)

OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, Petitioner,

v.

VOLUSIA COUNTY, Respondent.

PERC partially grants the motion to allow three of the seven requested employees to cast absentee ballots.  Those three employees will be allowed to vote by absentee ballot because they will be absent from the work site due to work related training requirements.

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RC-2002-025; RC-2002-030; Order 02E-172 (July 3, 2002)

PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

CITY OF BOYNTON BEACH, Respondent,

v.

FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, Intervenor.

PERC approves the consent election agreement and orders a secret ballot election for two units.  The first unit is for sworn police officers within the classification of lieutenant and the second, for sergeants.

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RD-2002-004; Order 02E-174 (July 8, 2002)

GARY F. MORRIS, Petitioner,

v.

NATIONAL CONFERENCE OF FIREMEN AND OILERS, LOCAL 1220, SEIU, Respondent,

v.

PINELLAS SUNCOAST TRANSIT AUTHORITY, Intervenor.

PERC determines an appropriate unit for transportation and maintenance supervisors and orders a secret ballot election.

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CA-2001-059; CA-2001-065; Order 02U-175 (July 9, 2002)

PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, INC., Charging Party,

v.

CITY OF JACKSONVILLE, Respondent.

PERC dismisses the charges and orders the union to pay reasonable attorney=s fees and costs incurred by the City during the prosecution of these two unfair labor practice cases.  PERC had already ruled that the union did not automatically obtain contractual rights of the previously certified bargaining agent without their ratification of that agreement.

AIn sum, we adopt the Hearing Officer=s findings of fact, but we disagree with her conclusion that these are novel cases and we disagree with her proposed remedy on attorneys fees and costs.@

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RD-2002-005; Order 02E-176 (July 9, 2002)

STEPHEN MUTSCHLER, Petitioner,

v.

SCHOOL EMPLOYEES UNION, NATIONAL CONFERENCE OF FIREMEN AND OILERS, LOCAL 1221, SEIU, AFL-CIO, CLC, Respondent,

v.

PINELLAS SUNCOAST TRANSIT AUTHORITY, Intervenor.

PERC determines an appropriate white-collar bargaining unit and orders a secret ballot election.

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RC-2002-016; Order 02E-177 (July 10, 2002)

FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Petitioner,

v.

CITY OF SUNRISE, Respondent,

v.

FEDERATION OF PUBLIC EMPLOYEES, A DIVISION OF THE NATIONAL FEDERATION OF PUBLIC AND PRIVATE EMPLOYEES, (AFL-CIO), Intervenor.

PERC determines an appropriate wall-to-wall unit of non-supervisory, non-professional employees and orders a secret ballot election.

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RC-2002-026; Order 02E-178 (July 10, 2002)

NATIONAL CONFERENCE OF FIREMEN & OILERS, SEIU, LOCAL 1227, AFL-CIO, Petitioner,

v.

PALM TRAN, INC. AND PALM BEACH COUNTY, Respondent.

PERC determines an appropriate bargaining unit for supervisors and orders a secret ballot election.

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EL-2002-018 (Relates to RC-2002-018); Order 02E-179 (July 15, 2002)

LEE COUNTY PUBLIC EMPLOYEES ASSOCIATION, Petitioner,

v.

LEE COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent.

PERC denies the motion for reconsideration of its order based on long-standing precedent of allowing employees to vote by absentee ballot only when their absence from the polling area is beyond their control because it results from the performance of duties within the normal scope of their employment.

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UC-2002-018; Order 02E-180 (July 17, 2002)

NORTHEAST FLORIDA PUBLIC EMPLOYEES' LOCAL 630, LIUNA, AFL-CIO, Petitioner,

v.

CITY OF ATLANTIC BEACH, Respondent.

PERC grants the unopposed unit clarification petition to modify unit 927.

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CB-2002-017; Order 02GC-181 (July 17, 2002)

ROBERT JOHN RUBINO, Charging Party,

v.

FIREFIGHTERS OF BOCA RATON, LOCAL 1560, Respondent.

The General Counsel summarily dismisses the charge that the union violated the Act by unilaterally increasing the base salary for recruitment purposes. 

AThe City's rules and regulations allow department heads to increase the minimum starting salary by up to ten percent for recruitment purposes.  While this rule had not previously been used in the fire department, other departments had used this rule.  Rubino accepted his position based on being paid the minimum salary plus ten percent.  One year later, he received a merit raise.  Shortly after Rubino had been with the City for one year, Local 1560 discovered that he was hired under the ten percent rule and filed a grievance against the City for doing so.  Rubino was not named in the grievance and he was told [by the union] the issue in the grievance was whether the Fire Chief could exercise the ten percent rule in the future.@

The grievance subsequently went to arbitration and in compliance with the arbiter=s ruling Rubino had his pay reduced by ten percent.  Because not enough information was submitted to determine if the charge was timely, it is dismissed.

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CA-2002-020; Order 02U-182 (July 17, 2002)

UNITED FACULTY OF FLORIDA, Charging Party,

v.

FLORIDA BOARD OF EDUCATION, Respondent.

The BOE violated the Act by insisting to impasse on a permissive subject of bargaining, specifically, a summary proposal which waives the Union=s right to bargain certain salary issues.  The Board is ordered, upon request of the Union, to bargain in good faith over the salary issues improperly taken to impasse and pay to the Union its reasonable attorneys fees and costs of litigation.

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RC-2002-031; Order 02E-183 (July 18, 2002)

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL UNION NO. 800, Petitioner,

v.

CITY OF NORTH BAY VILLAGE, Respondent.

PERC approves the consent election agreement and orders a secret ballot election for a blue-collar unit.

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RC-2002-032; Order 02E-184 (July 22, 2002)

COASTAL FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner,

v.

CITY OF ROCKLEDGE, Respondent,

v.

FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, Intervenor.

PERC approves the consent election agreement and orders a secret ballot election for a unit composed of dispatchers, officers, detectives and sergeants.

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CB-2001-031; CA-2001-068; Order 02E-185 (July 22, 2002)

CITY OF JACKSONVILLE, Charging Party,

v.

PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, INC., Respondent.

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PROFESSIONAL ASSOCIATION OF CITY EMPLOYEES, INC., Charging Party,

v.

CITY OF JACKSONVILLE, Respondent.

The hearing officer found that the evidence did not support PACE=s charge that the City bargained in bad faith and recommended dismissing this portion of PACE=s unfair labor practice charge.  The hearing officer also found that PACE failed to present evidence demonstrating that the City engaged in conduct that was intended to or have the effect of interfering with PACE=s internal affairs; thus, he concluded that this portion of the charge was frivolous and recommended a pro rata award of fees to the City.

The charges against the City are dismissed.  The Union is found guilty of engaging in bad faith bargaining by refusing to meet with the City for negotiations unless the City agrees to release the members of PACE=s bargaining teams from work in order to prepare for negotiations and unless the City removes its chief negotiator from the City=s bargaining team.  The Union is ordered to pay attorney=s fees and costs of litigation.

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PART II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Court Orders

[From Attorney General=s Appellate Alert]

U.S. Supreme Court

APunitive damages in ADA suits against public entities ...  Public entities and private organizations that receive federal funds cannot be made to pay punitive damages for violations of the Americans with Disabilities Act or the Rehabilitation Act, the U.S. Supreme Court held.

Continuing a series of rulings limiting the scope of the ADA, the justices unanimously ruled against a Missouri paraplegic man who was injured while being transported to jail in a police van.  The man claimed that the police department did not have proper policies for arresting and transporting people with spinal cord injuries, and a jury awarded him more than $1 million in compensatory damages and $1.2 million in punitive damages.  An appeals court upheld the punitive award but the Supreme Court reversed, saying punitive damages may not be awarded in private suits brought under '202 of the ADA and '504 of the Rehabilitation Act.  The court said violations of the laws are enforceable through private causes of action that seek to require public entities, as well as private organizations that accept federal funding, to pay compensation and make changes in accommodations, such as installing wheelchair ramps.

"We have acknowledged that compensatory damages alone might well exceed a recipient's level of federal funding; punitive damages on top of that could well be disastrous.  Not only is it doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability; it is doubtful whether they would even have accepted the funding if punitive damages liability was a required condition," Justice Scalia wrote for the court.  "(I)t must be concluded that Title VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages."  [Barnes v. Gorman, 6/17/02]@

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ALawsuits over disclosure of education information ...  Schools that divulge private student information in violation of federal law may face funding consequences from the federal government but cannot be sued by a student affected by the disclosure, the U.S. Supreme Court held.

At issued was whether students have an individual right to sue for violations of the Family Educational Rights and Privacy Act of 1974 (FERPA), which prohibits federal funding of schools that permit the release of students' education records without their parents' written consent.  A private university was sued by a student who claimed his efforts at becoming a teacher were destroyed when an instructor informed a state licensing authority of allegations that the student had engaged in sexual misconduct.  The Supreme Court ruled 7-2 that the enforcement power behind the federal law is the risk of lost federal funding, and not section '1983 civil rights lawsuits by individuals.

"(I)f Congress wishes to create new rights enforceable under '1983, it must do so in clear and unambiguous terms - no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action.  FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions.  They therefore create no rights enforceable under '1983," Chief Justice Rehnquist wrote for the court.  [Gonzaga University, et al., v. Doe, 6/20/02]@

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AConstitutionality of school vouchers ...  A school voucher program that allows public funds to pay for tuition at private religious schools is constitutional as long as it also gives parents the choice of using the money for secular schools, a sharply divided U.S. Supreme Court held.

The court upheld a voucher program that allows parents in Cleveland to use public funds to send their children to private schools.  The court's conservative majority said the program does not put the government in the position of endorsing religion, while the dissent criticized the fact that more than 95 percent of the vouchers went to religious schools.

"(T)he Ohio program is entirely neutral with respect to religion.  It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district.  It permits such individuals to exercise genuine choice among options public and private, secular and religious.  The program is therefore a program of true private choice.  In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause," Chief Justice Rehnquist wrote in a majority opinion joined by Justices O'Connor, Scalia, Kennedy and Thomas.

Writing in dissent, Justice Souter complained, "(T)he reality is that in the matter of educational aid the Establishment Clause has largely been read away.  True, the majority has not approved vouchers for religious schools alone, or aid earmarked for religious instruction.  But no scheme so clumsy will ever get before us, and in the cases that we may see, like these, the Establishment Clause is largely silenced.  I do not have the option to leave it silent, and I hope that a future Court will reconsider today's dramatic departure from basic Establishment Clause principle."  [Zelman v. Simmons-Harris, 6/27/02]@

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ADrug test of students for extracurricular activities ...  Public schools may conduct drug tests of students who participate in many extracurricular activities because the schools' interest in freeing campuses of drugs outweighs the privacy interests of students, the U.S. Supreme Court held.

The court approved a Tecumseh, Oklahoma, school policy requiring all middle and high school students to consent to drug testing in order to participate in any extracurricular activity, although the policy was actually applied only to competitive activities.  An appeals court held that the policy violated the Fourth Amendment and concluded that before imposing a suspicionless drug testing program, a school must demonstrate some identifiable drug abuse problem that would be redressed by testing.  In a 5-4 decision, the Supreme Court disagreed and said the policy reasonably serves the school district's important interest in detecting and preventing drug use among its students.

"(W)e find that testing students who participate in extracurricular activities is a reasonably effective means of addressing the School District's legitimate concerns in preventing, deterring, and detecting drug use," Justice Thomas wrote for the court.  [Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 6/27/02]@

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Florida Supreme Court

AProposed amendment re: universal pre-K ...  A proposed constitutional amendment offering universal pre-kindergarten education throughout Florida meets all constitutional standards and may be placed on the ballot if sponsors gather enough signatures, the Florida Supreme Court said.

The justices unanimously approved the ballot summary and said the proposed amendment does not violate the single-subject requirement, which in the past has prevented other initiative petitions from landing a place on the ballot.  The proposed amendment would require the state to offer high-quality pre-kindergarten to every Florida 4-year-old by the 2005 school year.  The proposal dictates that funds for the program must be in addition to those currently provided for education, but does not specify how much money must be designated for the program or where it is to come from.

"The requirement on the source of funding in this case does not substantially alter or perform multiple functions of state government because it does not actually perform the appropriation function of the Legislature; it simply provides that funding must be in addition to current funding for existing education, health and development programs," the court said in approving the measure.  [Advisory Opinion to the Attorney General re: Voluntary Universal Pre-Kindergarten Education, 7/11/02]@

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2^nd District Court of Appeal

APublic records - private email on government computers ...  Citing the potentially broad impact on every state agency and Florida city, the 2^nd DCA agreed to ask the Florida Supreme Court to resolve whether private email stored on government computers should be considered a public record.

The court in May concluded that private email stored in government computers does not automatically become a public record by virtue of that storage.  The court denied a newspaper's public records request for email involving two municipal employees who were suspected of using their public computers to operate a private business.  The DCA granted a motion to intervene by the Attorney General's Office and agreed to certify the issue to the Supreme Court "because this ruling affects how every state agency and municipality maintain their records and the public's access to those records."

The certified question asks whether all emails transmitted or received by public employees are public records by virtue of their placement on a government-owned computer system "if the agency has a written policy that informs the employees that the agency maintains a right to custody, control and inspection" of emails.  [Times Publishing Company v. City of Clearwater, 7/3/02 Note: not on line.]@

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3^rd District Court of Appeal

AAlleged sexual orientation workplace discrimination ...  The conduct of a supervisor who insults a worker and excludes her from office­-sponsored social functions because of her sexual orientation, without more, may not support a claim for intentional infliction of emotional distress, the 3^rd DCA held.

The court affirmed the dismissal of a complaint filed by a woman who alleged that supervisors at her private employer repeatedly harassed her, threatened her termination and excluded her from activities because of her sexual orientation.  She filed a discrimination charge with the Miami-Dade County Equal Opportunity Board before filing suit, but the court concluded that the supervisors' actions could not support the claim of intentional infliction of emotional distress, which requires not only that the conduct be outrageous but also that it caused severe emotional distress.  Noting that Florida courts have been reluctant to support such claims based solely on allegations of verbal abuse, the DCA agreed with the employer that the allegations against the supervisors do not rise to the level of outrageousness required under Florida law.

"These allegations of verbal abuse and disparate treatment, if true, constitute objectionable and offensive conduct, but do not rise to the level of outrageousness that is required by law in a claim for intentional infliction of emotional distress in the employment context," the DCA said.  [De La Campa v, Grifols American, Inc., 6/26/02 Note: not on line.]@

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4^th District Court of Appeal

ASunshine - executive session to discuss litigation ...  A city commission's closed-door meeting with its attorney to discuss ways to resolve a pending lawsuit is precisely the kind of activity envisioned by the litigation strategy exemption to Florida's open government laws, the 4^TH DCA held.

The court affirmed a summary judgment in favor of the City of Dania Beach, whose commission met in executive session to discuss a lawsuit against it.  In that meeting the commissioners discussed language to modify a resolution that was the subject of the original lawsuit, but no formal vote was taken.  The resolution was amended at a subsequent public meeting.  However, the plaintiff in the lawsuit alleged that the closed-door meeting violated the Government-in-the-Sunshine Law because the city commission agreed to the language of the amendment.  The DCA disagreed, and said the commission acted within the scope of the provision allowing executive sessions to discuss pending litigation.

"Frequently, the only way a governmental entity can achieve a settlement is to hold candid discussions between a public body and its lawyers regarding the strengths and weaknesses of the City's case, as well as determining a sense of the will of the commission as to how it wishes its attorneys to proceed.  (The plaintiff's) interpretation of the exemption would make it impossible and therefore frustrate the purposes of the exemption and the public interest that it seeks to serve," the DCA said.  "To deem such actions to have crossed the line and violate the Sunshine Law would vitiate the purposes of the executive session as exempted by the legislature. ...  Municipalities must be able to have confidential attorney client discussions at which they authorize their counsel to pursue settlement along certain lines, otherwise, their lawsuits would never get settled."  [Bruckner and the First Amendment Foundation v. City of Dania Beach, 7/3/102 Note: not on line.]@

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PART III . . . . . . . . . . . . . . . . . . . . . . . . ARBITRATION

**THE ORANGE COUNTY SCHOOL BOARD (Barney  Spurlock) (June 27, 2002)

and

THE ORANGE COUNTY EDUCATIONAL SUPPORT PERSONNEL ASSOCIATION

Did the board violate the contract when it terminated the grievant?

AOpinion:  While the Association has pointed to some discrepancies in the records of the times Ms. Evola accessed the unauthorized files, it is clear from the sheer number that she did indeed access files for personal reasons while on duty and being paid.

Ms. Evola knew or, reasonably should have known that the material she transferred to and viewed on her assigned computer was outrageously offensive and abhorrent to the vast majority of the population and certainly did not meet the reasonable expectation of management.

She may have inadvertently transferred the files from her home computer when her school computer was changed, but in the eighteen months from the time the transfer took place to the time of discovery, she had unlimited opportunity to have removed the offensive material.

While Ms. Evola contends that she accessed those files only when she was off duty, on breaks, lunch, before or after shift, the documentary evidence clearly established this unauthorized access was not limited to those off-duty periods, but did, in fact, take place while she was on duty and being paid.

The School Board has met its burden. of proving there was just cause for the termination of Ms. Evola.@

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PART IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Opinions

Attorney General's Opinions

**ASchool district - use of funds deposited improperly ...  In response to a request from the Hernando County District School Board Attorney, the Attorney General issued an advisory opinion stating in sum: "The School Board of Hernando County is required to use excess funds generated from the annual capital outlay levy under section 236.25(2), Florida Statutes, in a manner consistent with the statutory scheme in effect at the time the funds were generated or >earned=." [AGO-042, 6/18/02)]@

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PART V  . . . . . . . . . . . . . . . . . . . . . . . . SPECIAL MASTER

**School Board of Levy County (SM-2002-024) (James J. Sherman) (June 16, 2002)

and

Levy County Educational Association

Issues: Union=s request for $425 one-time bonus for school related personnel and Board=s request to amend the agreement; Article IV, pages 14-17 [removal of payment for suspended employees].

1. The one-time bonus...  The Special Master makes no recommendation.

2.  The Board's proposal to amend Article IV 8...  The Special Master makes no recommendation.

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MISCELLANEOUS

Tentative Agreement Reports

FEN Calendar

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