The School Board of Escambia County

215 West Garden Street Pensacola, Florida 32502 Telephone: (850)469-6362 / Facsimile (850)469-6303

Jeff Bergosh, Vice Chair District 1 Gerald Boone, Chair District 2 Linda Moultrie District 3 Patricia Hightower District 4 Bill Slayton District 5 Donna Sessions Waters General Counsel

MEMORANDUM
TO: FROM: RE: DATE: Jeff Bergosh Donna Sessions Waters Impasse Isolation Period September 8, 2011

You have requested a written opinion, with legal authorities, regarding the parameters of the isolation period to be observed during an impasse. I have attached language from several sources which, taken together, clarify the terms of this isolation period. Any analysis of public sector labor relations in Florida must begin with Chapter 447, Florida Statutes. Section 447.403 sets forth the procedure to be followed in resolving a contract dispute. Unless the parties have agreed to the contrary, upon impasse, PERC will appoint a special master, and impasse occurs when one of the parties rejects the special masters recommendation. 447.403(3)-(4), F.S. However, our master contracts provide for an expedited impasse procedure, omitting the appointment of a special master. The contracts state that upon failure of a ratification vote, the Superintendent and the Bargaining Council will present their position to the Trustees and the School Board for consideration. 1 Thus, for us, the impasse actually begins when the employees vote not to ratify. Once at impasse, there is an isolation period in which the parties cannot communicate regarding the subject matter. I have attached citations to PERC cases which clarify that this isolation period applies in situations where the parties have waived a special master, and that once the isolation period begins, the Board can no longer meet to discuss the matter.

EEA Master Contract Art.XIV, I; ESP Master Contract Art. VI, 1.I

During an impasse, the Board becomes a neutral body for resolution of the dispute. The attached decisions by PERC stress that the Boards actions during the isolation period will be closely scrutinized to ensure that both parties have a full and fair opportunity to present their impasse positions and have them considered fairly. Any statement indicating that a Board member has formulated a position on the issue prior to the presentation of the parties positions will be considered a violation. It is not necessary that either party benefit from such a communication; the mere fact of the communication is sufficient to support a finding of unfair labor practice. As the parties involved in the bargaining, the Superintendent and the Unions are entitled to have their positions fairly heard and considered by the Board. Any communication before that hearing which can be construed as evidencing a Board members position on the issues at impasse is inappropriate. Based on PERCs past decisions, it appears that even a statement which shows dissatisfaction with both parties positions would be improper, as this would show prejudgment of both positions. It is arguable that the members of a Board, who must make a collective decision, should be able to meet and discuss the merits of the issues, in analogy to a judge who ponders a case mentally before pronouncing a decision. However, PERC seems to have rejected this argument in City of Ocala, where it ruled that a Board may not hold an executive session for such discussions. If the Board cannot collectively ponder the issues in an executive session, it would not appear to be permitted in a public session either. Further, it is improper for a judge to weigh the merits of a case before hearing the arguments of the parties; By analogy, the Board must hear the parties positions before deliberating. It is my opinion that once the ratification vote on the insurance issue failed, the School Board became subject to a statutory isolation period, and that no communications on the merits of the matter should be undertaken until the public meeting at which the parties present their positions to the Board for action. At that meeting, however, it is clear that the Board is not bound by the positions of the parties it need not agree with either the Superintendent or the Unions. Rather, the Board must take such action as it deems to be in the public interest, including the interest of the public employees involved, to resolve all disputed impasse issues. 447.403(4)(d). The Board may determine that another approach entirely more appropriately protects the public interest.