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Cypen & Cypen

AUGUST 4, 2011

Stephen H. Cypen, Esq., Editor



City of Miami Beach, plaintiff, sued defendant, Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Miami Beach, to enforce a city ordinance.  

Before the litigation started, in early 2010, the City engaged in collective bargaining with the labor unions representing the bargaining units of fire and police employees. The contracts reached between the parties were ratified by the respective bargaining units and by the City. Consequently, the City passed a conforming amendment to the Pension Plan, but did not submit the proposed amendment to the electors of the City for approval.  

The administrator of the Pension Plan wrote to the State Division of Retirement, and stated the Board’s intention not to implement the amended Pension Plan Ordinance because there had not been the required voter approval. The City conceded that, since Florida adopted Home Rule, the Pension Plan had never been amended without submission to a referendum by the voters of the City of Miami Beach. (In fact, the Pension Plan had been amended 13 times with voter approval.) The City filed a complaint for writ of mandamus, or in the alternative, for declaratory judgment and injunction. Miami-Dade County Circuit Judge Gisela Cardonne-Ely held a final hearing on June 7, 2011. Thereafter, on August 4, 2011, she made the following findings and conclusions of law. 

Section 166.021(4), Florida Statutes, enacted in 1973 as part of the Municipal Home Powers Act, provides that nothing in the act shall be construed to permit any changes in a special law or municipal charter that affect any rights of municipal employees, without approval by referendum of the electors. The parties did not dispute that the plain language of the statue dictated that the voters of the City of Miami Beach be given the opportunity to vote on these pension changes through the referendum process. 

The City argued, however, that Section 166.021(4) should not be applied here because the proposed changes to the Pension Plan resulted from the collective bargaining process.  The City cited two reasons:  first, that Chapter 447, Florida Statutes, preempts Section 166.021(4) because Chapter 447 governs the collective bargaining process and is silent on a referendum requirement; second, Article I, Section 6, Florida Constitution, which states that the right to collective bargaining shall not be denied or abridged. (According to the City, subjecting the proposed Pension Plan amendments to a referendum would amount to an “abridgement” of the right to bargain collectively. 

The collective bargaining procedures in Chapter 447 do not defeat Section 166.021(4)’s referendum requirement.  Chapter 447 sets forth procedures for declaration and resolution of collective bargaining impasses, but does not contain any provisions that would conflict with 166.021(4)’s referendum requirement.  The Legislature did not intend Chapter 447 to preempt or repeal Section 166.021(4).

Chapter 447 contains no mention of whether a referendum should or should not be held for changes to special acts or municipal charters that would affect rights of municipal employees.  Chapter 447 does not prescribe the procedural method by which a local government would effectuate a collective bargaining agreement.  Section 166.021(4) is neither “irreconcilably repugnant” to Chapter 447 nor “hopelessly inconsistent” with Chapter 447.  Rather, the two statutes can be easily harmonized.  

Although Chapter 447 regulates the bargaining process, it is not the only statute that can have an impact on collective bargaining.  Chapter 447 governs only the collective bargaining process itself, and then provides that the collective bargaining agreement’s provisions will not become effective “unless and until” the existing law is amended.  Attorney General Opinion 98-56 (September 16, 1998) specifically found that lack of a requirement for referendum approval in Chapter 447 does not alter the mandate for such approval under Section 166.021. 

The Court found that all parties bargained in good faith.  The unions relied on a forty year history of submission to the voters of all bargained contracts; the City, under the present Commission, apparently assumed that an ordinance would implement the changes, without a referendum.  Ultimately, the Court found that the City must submit the Pension Plan amendments for consideration by the voters in a referendum, pursuant to Section 166.021(4), Florida Statutes. City of Miami Beach v. The Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Miami Beach, Case No. 11-01443 CA 08 (Fla. 11th Cir., August 4, 2011). 

We were honored to serve as co-counsel to our 65-year client, the Pension Board. 

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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