Florida/Georgia Personal Injury & Workers Compensation

...Gross of Donnelly & Gross, P.A., Gainesville, for appellants. John Edward Alley and Robert D. Hall, Jr., of Ford & Harrison LLP, Tampa, for appellee. POLEN, J. Appellant, Communications Workers of America, has timely appealed the trial court's order vacating an arbitration award, which interpreted section 447.4095, Florida Statutes, in its favor, on the basis that the arbitrator exceeded his powers under section 682.13(1), Florida Statutes....

...The School Board declared an impasse and presented the Union with notice that it intended to skip mediation and a special master and proceed directly to a legislative hearing. The School Board also presented the Union with a letter addressed to PERC declaring an impasse under the financial emergency provisions of section 447.4095, Florida Statutes....

...The Union did not agree with this course of action, but chose not to file an unfair labor practice claim with PERC. On May 9, 2001, PERC's general counsel wrote the School Board, advising it: I understand your concern over the "financial urgency" ... You [ ] are proceeding under Section 447.4095, Florida Statutes. This statutory section was enacted by the Legislature in 1997 and to date the Commission has not had an occasion to interpret its provisions in case law. My opinion of Section 447.4095 is that, in the event of a financial urgency requiring modification of a collective bargaining agreement, it allows an employer to unilaterally change wages, hours, and terms and conditions of employment after bargaining the impact of the change for a "reasonable period" not to exceed 14 days.......

...1, 2001. On May 30, 2001, the Union filed a grievance alleging contract violations in regard to the unilateral imposition of the health insurance modifications. The School Board responded in a letter taking the position its action was authorized by section 447.4095 and that the Union did not grieve a violation under any of the contractual provisions....

...Notwithstanding, the arbitrator found the issue arbitrable and that the School Board violated the agreement because the health care issues should have been raised at the annual renegotiations. Moreover, the Arbitrator ruled that the School Board did not follow the strictures of sections 447.403 and 447.4095, stating: It would seem that the Employer, in order to avail itself of the statutory procedures must observe the strictures of those statutes. In this case the relevant statutes call for, inter alia, negotiation and a decision by a special master unless waived by the parties, prior to the imposition of a resolution by the legislative body, FS 447.403; 447.4095....

...arbitrator exceeded his power and jurisdiction by ruling on preempted matters. See § 682.13(1)(c), Fla. Stat. After having heard the issues, the trial court found: Much of the arbitrator's decision was devoted to interpretation and application of [§ 447.4095], as well as other statutes within the exclusive jurisdiction of [PERC]....

...on over labor activities is preempted in favor of PERC if the activities are `arguably' covered by the provisions of Part II, Chapter 447, supra. Essentially, the School Board unilaterally modified the health insurance plan, in rough accordance with section 447.4095, due to perceived financial urgency after unsuccessful negotiations resulted in the declaration of an impasse. Section 447.4095 provides: In the event of a financial urgency requiring modification of [a collective bargaining] agreement, the chief executive officer [ ] and the bargaining agent [ ] shall meet as soon as possible to negotiate the impact of the financial urgency....

...red under chapter 447. Moreover, in the course of the unsuccessful negotiations between the Union and the School Board, PERC's general counsel wrote the School Board, advising it that in his opinion the School Board was proceeding in accordance with section 447.4095....

...pter 447. As such, we find that the trial court was correct in vacating the arbitration award because the arbitrator exceeded his authority by addressing the manner in which the health insurance modifications were imposed, through the application of section 447.4095. *101 The Union misplaces reliance on Chiles v. United Faculty of Florida, 615 So.2d 671, 673 (Fla.1993), which held that before any unilateral modification could be made under section 447.4095 the School Board had to demonstrate a compelling state interest....

...tice (ULP) charge against the City of Miami (City). The Union argues that (1) PERC erred in determining that the City was facing a “financial urgency” that required modification of the parties’ collective bargaining agreement (CBA) pursuant to section 447.4095, Florida Statutes (2010), and (2) PERC erred in construing section 447.4095 to allow the City to implement changes to the CBA prior to completion of the impasse resolution process set forth in section 447.403. For the reasons that follow, we conclude that PERC properly interpreted and applied section-447.4095....

...ould not agree to any modifications to the CBA on wages or pension benefits. On July 28, 2010, while the parties were engaged in negotiations for a successor agreement, the City declared a “financial urgency” and invoked the process set forth in section 447.4095....

...Some of the changes went into effect on September 30, 2010, while others went into effect on October 1, 2010, which was the first day of the City’s 2010/2011 fiscal year. On September 21, 2010, the Union filed a ULP charge with PERC. The Union alleged that the City committed a ULP by improperly invoking section 447.4095 for the purpose of altering the terms and conditions of employment after expiration of the CBA....

...mpact the City’s already-reduced credit rating and its ability to borrow funds. The PERC hearing officer issued an order recommending dismissal of the Union’s ULP charge. The hearing officer found that the City properly invoked the provisions of section 447.4095 because the evidence established that the City was facing a financial situation that continued to deteriorate despite the actions taken by the City short of modifying the CBA....

...that the focus is whether a reason *890 able person could reach the conclusion that “funding was not available to meet the employer’s financial obligations to its employees.” The final order also adopted the hearing officer’s conclusion that section 447.4095 did not require the City to proceed through the impasse resolution process before implementing the changes to the CBA....

...before implementing changes to the CBA, the purpose of the statute would be frustrated because of the delays inherent in that process. Commissioner Delgado filed a dissent. He disagreed with the majority’s conclusion that the City properly invoked section 447.4095 because, in his view, the statute required the local government to prove that its financial condition required modification of the agreement, which pursuant to Chiles v....

...ning process cannot be unilaterally modified during the term of the agreement absent a compelling state *891 interest. See Chiles, 615 So.2d at 673 ; Manatee Educ. Assoc. v. Sch. Bd. of Manatee Cnty., 62 So.3d 1176, 1178 (Fla. 1st DCA 2011). Because section 447.4095 impairs collective bargaining rights, the statute must be narrowly construed....

...n effect”) (quoting State ex rel. Wash. v. Rivkind, 350 So.2d 575, 577 (Fla. 3d DCA 1977)). With these general principles in mind, we now turn to the specific issues raised by the Union on appeal. 1 First, the Union contends that PERC misconstrued section 447.4095 and erred in determining that the City was facing a financial urgency requiring modification of the CBA. We disagree. Section 447.4095 provides: Financial urgency....

...o the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section. Section 447.4095 does not define “financial urgency,” nor is the term defined elsewhere in Chapter 447....

...cisive action, but not necessarily a financial emergency or bankruptcy. The existence of such a financial condition is a compelling state interest that can justify a unilateral modification of a CBA, 4 but based on the plain language of the statute, section 447.4095 may only be invoked if the financial condition requires modification of the agreement....

...Thus, if the financial condition can be adequately addressed by other reasonable means, then a modification of the agreement is not “required.” If, however, the other reasonable alternatives available to the local government are not adequate to address the financial condition facing the local government, then section 447.4095 permits the local government to unilaterally modify the CBA....

...n in the collective bargaining process). The Court emphasized that “[t]he mere fact that it is politically more expedient to eliminate all or part of the contracted funds is not in itself a compelling reason.” Id. at 673 . The same is true under section 447.4095 because the fact that it may be politically more expedient for the local government to modify the CBA than to implement other cost-saving or revenue-raising measures is insufficient, standing alone, 5 to demonstrate that the modification of the CBA was required....

...hat “the legislature must demonstrate that the funds are available from no other possible reasonable source.” Id. at 673 . However, we are not persuaded that this restrictive standard is constitutionally mandated or that it should be extended to section 447.4095. Accordingly, we conclude that in a proceeding under section 447.4095, the local government is not required to demonstrate that funds are not available from any other possible source to preserve the agreement; instead, the local government must only show that other potential cost-saving measures and al...

...Manatee Educ. Ass’n, 62 So.3d at 1183 ; see also City of Miami v. Fraternal Order of Police, Miami Lodge 20, 98 So.3d 1236, 1237 (Fla. 3d DCA 2012) (reversing temporary injunction prohibiting city manager from declaring financial urgency and noting that section 447.4095 “provides an expedited collective bargaining process when invoked, with an impasse resulting in prompt (and preemptive) submission of the dispute to [PERC].”) (footnote omitted)....

...Such review typically occurs in a ULP proceeding filed after the local government unilaterally modifies the agreement to address the financial urgency. See Manatee Educ. Ass’n, 62 So.3d at 1178 (“The public employer does not have to obtain a ruling that a genuine ‘financial urgency1 exists before it proceeds under section 447.4095”)....

...government would have been able to continue to meet its financial obligations to its employees as well as its other obligations; (c) consider the other actions taken by the local government to address its financial condition before proceeding under section 447.4095; and (d) evaluate whether there were other reasonable alternatives considered by the local government or proposed by the party challenging the modifications that would have adequately addressed the financial situation facing the local government....

...the CBA, and there is compe *894 tent substantial evidence in the record to support the factual findings made by the hearing officer and adopted by PERC. Accordingly, we affirm PERC’s determination that the City properly invoked the procedures in section 447.4095 and, thus, did not commit a ULP when it unilaterally modified the CBA. 2 Second, the Union contends that PERC erred in construing section 447.4095 to allow the City to unilaterally modify the CBA without first proceeding through the impasse resolution process set forth in section 447.403. We disagree. Section 447.4095 provides for an expedited period of negotiation, not to exceed 14 days, upon declaration of a financial urgency by a local government and requires the parties to meet as soon as possible after the declaration to “negotiate the impact” of the financial urgency....

...The statute further provides that, if a dispute remains between the parties after the expiration of the expedited negotiation period, an impasse shall be deemed to have occurred and “[t]he parties shall then proceed pursuant to the provisions of s. 447.403.” § 447.4095, Fla....

...The legislative body is not required to accept the special magistrate’s recommendations and, thus, the end-result of the impasse resolution process may be the local government unilaterally imposing changes to the agreement. See § 447.403(4), Fla. Stat. In interpreting section 447.4095 to allow for modification of a CBA without proceeding through the impasse resolution process, PERC gave great weight to the Legislature’s use of the phrase “negotiate the impact,” which PERC construed as a reference to “impac...

...language in the statute directing the parties to “then proceed” to the impasse resolution process after the 14-day bargaining period. The Union contends that by requiring the parties to immediately proceed through the impasse resolution process, section 447.4095 contemplates that no changes to the agreement will be made until the end of that process....

...The City responds that requiring the local government to proceed through the impasse resolution process would frustrate the intent of the statute because it would delay implementation of the modifications necessary to address the financial urgency. Faced with these equally reasonable interpretations of the plain language of section 447.4095, we turn to the rules of statutory construction to discern the meaning of the statute....

...Thus, unlike typical bargaining, impact bargaining allows the employer to implement certain types of decisions without going through the full collective bargaining process. We agree with PERC that it is reasonable to infer that the Legislature intended the phrase “negotiate the impact” in section 447.4095 to be a reference to “impact bargaining.” The declaration of the financial urgency and the 14-day negotiating period in the statute is the notice and reasonable opportunity to negotiate that is required in the context of “impac...

...o address the financial urgency. Cf. Commc’ns Workers of Am., 888 So.2d at 98 (quoting a 2001 letter in which PERC’s general counsel opined that “in the event of a financial urgency requiring modification of a collective bargaining agreement, [section 447.4095] allows an employer to unilaterally change wages, hours, and terms and conditions of employment after bargaining the impact of the change for a ‘reasonable period’ not to exceed 14 days”)....

...ate action, which, by *896 the very definition of financial urgency, is required. We recognize that allowing the local government to immediately impose unilateral changes to the agreement upon the conclusion of the 14-day impact bargaining period in section 447.4095 will change the “status quo” between the parties, but if it is later determined in a ULP proceeding that no financial urgency existed or that the changes were not required to address the financial urgency, PERC has broad authority to remedy the ULP....

...See § 447.503(6), Fla. Stat. This, coupled with the narrow circumstances in which the statute applies, adequately safeguards the right of public employees to collectively bargain. In sum, we agree with PERC that a local government acting pursuant to section 447.4095 is not required to proceed through the impact resolution process in section 447.403 before modifying the CBA....

...Accordingly, we affirm PERC’s determination that the City did not commit a ULP when it unilaterally modified the CBA without first proceeding through the impact resolution process. Conclusion For the reasons stated above, we conclude that PERC did not err in interpreting or applying section 447.4095....

...to justify a unilateral modification of a CBA. . Even though these issues arise in a ULP proceeding in which the charging party has the ultimate burden of proof, the local government has the burden to establish that its actions were justified under section 447.4095 once the charging party presents a prima facie case that the local government committed a ULP by unilaterally modifying the CBA....

...tive relief on constitutional grounds. The Firefighters claim that the City violated the Firefighters’ collective bargaining rights guaranteed by Article I, Section 6 of the Florida Constitution by not following the procedures of sections 447.403, 447.4095, Florida Statutes (2010), and by conducting a shade meeting in vio *95 lation of section 286.011, Florida Statutes (2010), the Sunshine law....

...RC”) preempted the circuit court from hearing the issues raised. This appeal by the Firefighters’ Union follows. The Firefighters’ Union alleges in its Verified Complaint for Declaratory and In-junctive Relief that “despite the provisions of Section 447.4095 and the statutory procedures under Section 447.403 ... the City unilaterally took action to modify downward wages, insurance, pension benefits and other benefits.” In other words, the Firefighters’ Union claims that, by acting unilaterally and not following the statutory requirements of sections 447.4095 and 447.403, the City abridged the Union’s constitutionally guaranteed right of collective bargaining....

...1st DCA 1997) (holding that PERC has jurisdiction to hear allegations of unfair labor practices that violate statutory and constitutional rights); see Manatee Educ. Ass’n v. Sch. Bd. of Manatee Cnty., 62 So.3d 1176 (Fla. 1st DCA 2011) (deferring to PERC interpretation of section 447.4095 after dismissal below; issues of the right to bargain collectively under Art....

...Because the Firefighters’ Union must exhaust its administrative remedies first, and PERC has jurisdiction in the first instance to adjudicate the allegations of constitutional rights and statutory violations as complained of here, we uphold the dismissal of the complaint below. Affirmed. . Section 447.4095, provides: In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency....

...For the reasons that follow, we approve the decision of the Third District.  FACTS On June 28, 2010, Respondent, the City of Miami, declared a “financial urgency” and invoked the process set forth in section 447.4095, Florida Statutes (2010), which provides: Financial urgency – In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the b...

...the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section. § 447.4095, Fla....

...led. The Third District affirmed the trial court. Fraternal Order of Police, 143 So. 3d at 954. Petitioner then sought review, and we accepted jurisdiction. ANALYSIS Petitioner raises a facial challenge to section 447.4095, Florida Statutes, arguing that it is void for vagueness, violates due process, and denies equal -2- protection....

...Generally, legislative acts are afforded a presumption of constitutionality and we will construe the challenged legislation to effect a constitutional outcome when possible. Fla. Dep’t of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005). First, Petitioner contends that section 447.4095 is impermissibly vague....

...Florida Birth-Related Neurological Injury Comp. Ass’n, 114 So. 3d 912, 919-20 (Fla. 2013). A statute is also void for vagueness if it lends itself to arbitrary enforcement at an officer’s discretion. D’Alemberte v. Anderson, 349 So. 2d 164, 166 (Fla. 1977). Petitioner argues that section 447.4095 is vague because the legislature did not define the term “financial urgency.” According to Petitioner, this allows a city unfettered discretion to unilaterally modify an agreement because the legislature did not define what ci...

...1908)). Here, the Legislature provided the Public Employees Relations Commission (PERC) with the discretion to interpret and apply the statute within its discretion based on its expertise. §§ 447.205, .207, Fla. Stat. (2010). After the legislature enacted section 447.4095, district courts of appeal deferred to PERC to provide a definition of financial urgency. See, e.g., Manatee Educ. Ass’n, FEA AFT (Local 3821), v. Sch. Bd. of Manatee Cty., 62 So. 3d 1176, 1183 (Fla. 1st DCA 2011) (“[W]e decline to decide what constitutes a ‘financial urgency’ within the meaning of section 447.4095 ....

...immediate attention and demanding prompt and decisive action, but not necessarily a financial emergency or bankruptcy,” which we accepted. Walter E. Headley, Jr. Miami Lodge No. 20 v. City of Miami (Headley Miami Lodge), 215 So. 3d 1, 6 (Fla. 2017). It does not appear that section 447.4095 is void for vagueness....

...public employer may need to invoke the statute. While the union may not agree -5- with PERC’s definition of the term, that does not render the statute unconstitutional. In re Advisory, 509 So. 2d at 312. We conclude that section 447.4095 is not unconstitutionally vague. Secondly, Petitioner argues that the statute violates substantive due process. Under substantive due process, a statute must not be unreasonable, arbitrary or capricious, and must have a reasonable and substantial relation to a legitimate government objective. See State v. Robinson, 873 So. 2d 1205, 1214 (Fla. 2004). When a statute encroaches on fundamental constitutional rights, the statute must be narrowly tailored to achieve the state’s purpose. Id. We have previously considered section 447.4095 and found that while the statute implicates fundamental rights, i.e., the right to contract and collectively bargain, the statute satisfies strict scrutiny. In Headley Miami Lodge, we stated: Section 447.4095 is the codification of the strict scrutiny standard we outlined in Chiles [v....

...As previously stated, we have already determined that the statute satisfies strict scrutiny in Headley Miami Lodge. Headley Miami Lodge, 215 So. 3d at 7. There is no violation of equal protection. CONCLUSION Section 447.4095 is not void for vagueness and does not violate equal protection or due process....

..., and the City of Miami (“the City”). The agreement covered the period of October 1, 2007, through September 30, 2010. Headley, 118 So.3d at 888 . On July 28, 2010, the City declared a “financial urgency” and invoked the process set forth in section 447.4095, Florida Statutes (2010)....

...it calculations, alteration of the normal retirement form, and modification of average final compensation. Id. The Union then filed an unfair labor practice (“ULP”) charge with PERC on September 21, 2010, arguing that the City improperly invoked section 447.4095 and unilaterally changed the CBA before completing the impasse resolution process provided for in section 447.4095....

...As to good faith, PERC focused on whether “a reasonable person could reach the conclusion that ‘funding was not available to meet the employer’s financial obligations to its employees.’ ” Id. at 889-90 (quoting final order). The order also found that section 447.4095 did not require the City to proceed through the impasse resolution process before implementing changes to the CBA....

...PERC interpreted the statute to require “impact bargaining,” which allowed the employer to make the changes after providing notice and a reasonable opportunity to bargain. Id. The First District affirmed PERC’s final order, finding that it did not err in interpreting or applying section 447.4095....

...ANALYSIS Petitioner first argues that before unilaterally modifying a CBA pursuant to the financial urgency statute, an employer must demonstrate that funds are available from no other possible reasonable source. Deciding this issue will require the interpretation of section 447.4095, Florida Statutes (2010)....

...Generally, an agreement regarding wages, hours, or terms and conditions of employment reached through the collective bargaining process cannot be unilaterally modified during the term of the agreement absent a compelling state interest. Headley, 118 So.3d at 890 . The statute at issue in this case, section 447.4095, provides: Financial urgency—In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency....

...If the language of the statute is “clear and unambiguous and conveys a clear and definite meaning” there is no need to resort to statutory construction. Id.; accord Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla. 1992). Because a government entity acting under section 447.4095 has the potential to impair two fundamental rights afforded to public employees, the statute must be given a strict construction....

...d. Further, “the legislature must demonstrate that the funds are available from no other possible reasonable source.” Finding that the Legislature did not satisfy the requirements of this test, we ordered the reinstatement of the pay raises. Id. Section 447.4095 is the codification of the strict scrutiny standard we outlined in Chiles....

...This satisfies the second requirement of strict scrutiny, that the law be narrowly tailored to achieve a compelling state interest.' In the instant case, the First District held that the language from Chiles is not “constitutionally mandated” and should not be extended to section 447.4095....

...ution process set forth in section 447.403, Florida Statutes (2010). This issue centers on the procedure to be followed once a local government has declared a financial urgency requiring modification of an agreement. As the First District explained: Section 447.4095 provides for an expedited period of negotiation, not to exceed 14 days, upon declaration of a financial urgency by a local government and requires the parties to meet as soon as possible after the declaration to “negotiate the impact” of the financial urgency....

...The statute further provides that, if a dispute remains between the parties after the expiration of the expedited negotiation period, an impasse shall be deemed to have occurred and “[t]he parties shall then proceed pursuant to the provisions of s. 447.403.” § 447.4095, Fla....

...See Jacksonville Supervisors Ass’n v. City of Jacksonville, 26 F.P.E.R. 31140 (2000). The statutory language that Respondent relies on as an indicator that the Legislature intended to allow for impact bargaining is “negotiate the impact of the financial urgency.” § 447.4095, Fla....

...xclusion of another,” legislative direction as to how a thing shall be done is, in effect, a prohibition against it being done any other way. See Sun Coast Int’l, Inc. v. Dep’t of Bus. Reg., 596 So.2d 1118, 1121 (Fla. 1st DCA 1992). Therefore, section 447.4095 permits the unilateral implementation of changes to the CBA only after parties have completed the impasse resolution proceedings and failed to ratify the agreement....

...The interpretation set forth by PERC and the First District would allow a local government, once it has declared a financial urgency, the ability to exercise a management right to unilaterally alter the terms and conditions of a contract before completing the procedures set forth by the Legislature in section 447.4095....

...g unit to be free from governmental impairment of contracts with its employer are the heart of this appeal. Hollywood Fire Fighters Local 1375 (“the Union”) argues that the Public Employees Relations Commission’s (“PERC”) interpretation of section 447.4095(1), Florida Statutes (2013), which permits local governments to declare a “financial urgency” to reopen a collective bargaining agreement, violates these two constitutional rights....

...ractices by (1) declaring *1044 a financial urgency for both FY2011 and FY2012 when none existed; (2) failing to participate in impasse proceedings before declaring financial urgency for FY2011; and (3) bargaining in bad faith. The Union also argued section 447.4095 (“the financial urgency statute”) was unconstitutional....

...“Rather, the legislature must demonstrate that the funds are available from no other possible reasonable source.” Id. (emphasis added). The court held the Legislature had failed to meet this test, and ordered the reinstatement of pay raises. Id. After Chiles , the Legislature enacted section 447.4095, Florida Statutes, which states: In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency....

...o the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section. § 447.4095, Fla....

...g prompt and decisive action, but not necessarily a financial emergency or bankruptcy.” Headley, 118 So.3d at 892 . The First District adopted that definition, and so do we. However, we disagree with the First District’s application of Chiles to section 447.4095....

...After concluding PERC’s definition of financial urgency was correct, the First District went on to conclude: The existence of such a financial condition is a compelling state interest that can justify a unilateral modification of a CBA, but based on the plain language of the statute, section 447.4095 may only be invoked if the financial condition requires modification of the agreement....

...Thus, if the financial condition can be adequately addressed by other reasonable means, then a modification of the agreement is not “required.” If, however, the other reasonable alternatives available to the local government are not adequate to address the financial condition facing the local government, then section 447.4095 permits the local government to unilaterally modify the CBA....

...ble from no other possible reasonable source.” Id. at 893 (quoting Chiles, 615 So.2d at 673 ). The First District then said: However, we are not persuaded that this restrictive standard is constitutionally mandated or that it should be extended to section 447.4095. Accordingly, we conclude that in a proceeding under section 447.4095, the local government is not required to demonstrate that funds are not available from any other possible source to preserve the agreement; instead, the local government must only show that other potential cost-saving *1046 measures...

...ial condition facing the local government. Id. By asserting that the language “the legislature must demonstrate that the funds are available from no other possible reasonable source” is not constitutionally mandated and should not be extended to section 447.4095, it appears to us that the First District adopted a modified Chiles test....

...at the second prong was not applied. Thus, we reverse and direct PERC to apply the Chiles standard in determining whether the City engaged in an unfair labor practice. Because we disagree with the appropriate constitutional standard to be applied to section 447.4095, we certify conflict with the First District’s decision in Headley v....

...The City of Miami appeals a circuit court order granting a motion for temporary injunction sought by the Miami lodge of the Fraternal Order of Police and its president (together, “F.O.P.”). The circuit court concluded that the City Manager could not, as a matter of law, invoke the “financial urgency” statute, section 447.4095, Florida Statutes (2012), without formal action or authorization by the Miami City Commission, and that the circuit court could address the question before F.O.P....

...Further, F.O.P. has not demonstrated that its remedy in a later charge before PERC on this claim will be unavailing or inadequate. The collective bargaining agreement (“CBA”) between the City and F.O.P. is subject to Chapter 447, Florida Statutes (2012). Section 447.4095 specifies that the “chief executive officer” of a public employer is to meet as soon as possible with the employees’ bargaining agent to negotiate the effect of “a financial urgency requiring modification of an agreement.”...

...nd the City of Miami (“the City”). The agreement covered the period of October 1, 2007, through September 30, 2010. Headley, 118 So. 3d at 888. On July 28, 2010, the City declared a “financial urgency” and invoked the process set forth in section 447.4095, Florida Statutes (2010)....

...s, alteration of the normal retirement form, and modification of average final compensation. Id. The Union then filed an unfair labor practice (“ULP”) charge with PERC on September 21, 2010, arguing that the City improperly invoked section 447.4095 and unilaterally changed the CBA before completing the impasse resolution process provided for in section 447.4095....

...As to good faith, PERC focused on whether “a reasonable person could reach the conclusion that ‘funding was not available to meet the employer’s financial obligations to its employees.’ ” Id. at -4- 889-90 (quoting final order). The order also found that section 447.4095 did not require the City to proceed through the impasse resolution process before implementing changes to the CBA....

...PERC interpreted the statute to require “impact bargaining,” which allowed the employer to make the changes after providing notice and a reasonable opportunity to bargain. Id. The First District affirmed PERC’s final order, finding that it did not err in interpreting or applying section 447.4095....

...Petitioner first argues that before unilaterally modifying a CBA pursuant to the financial urgency statute, an employer must demonstrate that funds are available from no other possible reasonable source. Deciding this issue will require the interpretation of section 447.4095, Florida Statutes (2010)....

...Generally, an agreement regarding wages, hours, or terms and conditions of employment reached through the collective bargaining process cannot be unilaterally modified during the term of the agreement absent a compelling state interest. Headley, 118 So. 3d at 890. The statute at issue in this case, section 447.4095, provides: Financial urgency – In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative s...

...If the language of the statute is “clear and unambiguous and conveys a clear and definite meaning” there is no need to resort to statutory construction. Id.; accord Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 454 (Fla. 1992). Because a government entity acting under section 447.4095 has the potential to impair two fundamental rights afforded to public employees, the statute must be given a strict construction. State v....

...Further, “the legislature must demonstrate that the funds are available from no other possible reasonable source.” Finding that the Legislature did not satisfy the requirements of this test, we ordered the reinstatement of the pay raises. Id. Section 447.4095 is the codification of the strict scrutiny standard we outlined in Chiles....

...This satisfies the second requirement of strict scrutiny, that the law be narrowly tailored to achieve a compelling state interest. In the instant case, the First District held that the language from Chiles is not “constitutionally mandated” and should not be extended to section 447.4095. Headley, 118 So....

...in section 447.403, Florida Statutes (2010). This issue centers on the procedure to be followed once a local government has declared a financial urgency requiring modification of an agreement. As the First District explained: Section 447.4095 provides for an expedited period of negotiation, not to exceed 14 days, upon declaration of a financial - 12 -  urgency by a local government and requires the parties to meet as...

...The statute further provides that, if a dispute remains between the parties after the expiration of the expedited negotiation period, an impasse shall be deemed to have occurred and “[t]he parties shall then proceed pursuant to the provisions of s. 447.403.” § 447.4095, Fla....

...See Jacksonville Supervisors Ass’n v. City of Jacksonville, 26 F.P.E.R. 31140 (2000). The statutory language that Respondent relies on as an indicator that the Legislature intended to allow for impact bargaining is “negotiate the impact of the financial urgency.” § 447.4095, Fla....

...linary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons. § 447.209, Fla. Stat. (2013). - 15 - (Fla. 1st DCA 1992). Therefore, section 447.4095 permits the unilateral implementation of changes to the CBA only after parties have completed the impasse resolution proceedings and failed to ratify the agreement....

...ict would allow a local government, once it has declared a financial urgency, the ability to exercise a management right to unilaterally alter the terms and conditions of a contract before completing the procedures set forth by the Legislature in section 447.4095....

...t a local government, once it has declared a financial urgency, does not have the ability to unilaterally alter the terms and conditions of a collective bargaining agreement before completing the procedures required by the Legislature in sections 447.4095 and 447.403, Florida Statutes....

...ng the City’s emergency motion for temporary injunctive relief, and affirm the trial court’s order abating the proceedings. FACTS AND PROCEDURAL HISTORY On July 28, 2010, the City declared a “financial urgency,” pursuant to section 447.4095, Florida Statutes (2010), and, on August 31, 2010, voted to unilaterally alter the terms of its collective bargaining agreement (“CBA”) with Miami Lodge No....

...PERC adopted the hearing officer’s recommendation in its final order dismissing the Union’s charge. The Union appealed to the First District Court of Appeal, which affirmed PERC’s final order, finding PERC did not err in interpreting or applying section 447.4095....

...public employer may not modify a CBA in the event of a financial urgency unless it shows “that the funds are not available from any other possible reasonable source.” Headley v. City of Miami, 215 So. 3d 1, 8 (Fla. 2017). The Court also held that “section 447.4095 permits the unilateral implementation of changes to the 1 See §447.4095, Fla....

...Employees Relations Commission (PERC) dismissing an unfair labor practice charge the union filed against the School Board of Manatee County (School Board), alleging that the School Board had committed an unfair labor practice by improperly invoking section 447.4095, Florida Statutes (2008). Concluding that PERC erred in dismissing the unfair labor practice charge without determining whether a “financial urgency” within the meaning of section 447.4095 existed, we reverse the final order in part, and remand for further proceedings. A public employer may declare a “financial urgency” pursuant to section 447.4095, and proceed accordingly....

...s’ constitutional right to bargain collectively. See Art. I, § 6, Fla. Const. (“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”). Once the fourteen-day period specified in section 447.4095 has run, the union is free to file an unfair labor practice charge disputing the employer’s claim of “financial urgency.” In that event, it is incumbent on PERC to decide whether a “financial urgency” within the meaning of...

...orida Constitution — actually existed. If so, PERC should dismiss the charge. If not, PERC should order appropriate relief. The public employer does not have to obtain a ruling that a genuine “financial urgency” exists before it proceeds under section 447.4095. If the union chooses not to participate in negotiations contemplated by section 447.4095, it runs the risk that PERC will find that a “financial urgency” did exist, and dismiss its unfair labor practice charge, with the result that any changes implemented pursuant to section 447.4095 will remain in effect. But the union need not participate in proceedings under section 447.4095 as a precondition to obtaining a decision on whether there was in fact a “financial urgency.” In the present case, the School Board and the union entered into a three-year collective bargaining agreement (CBA) in 2007....

...On May 5, 2008, Dr. Dearing, the Superintendent of Schools for Manatee County, informed the union that, given legislative funding levels, the School Board was declaring a “financial urgency” requiring the *1179 modification of the CBA pursuant to section 447.4095....

...o the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section. § 447.4095, Fla....

...under the CBA’s reopener clause, in light of the School Board’s financial circumstances. On May 7, 2008, the Superintendent reiterated his claim that the School Board was facing a financial urgency. The Board then went forward unilaterally under section 447.4095, informing the union of the Board’s proposed modifications to the CBA on May 20, 2008. The union again responded that proceeding under section 447.4095 was unwarranted, but that it was willing to begin negotiations immediately under the reopener provision. 1 On May 23, 2008, the School Board notified PERC that it was declaring an impasse, based on the union’s refusal to bargain under section 447.4095 and the failure of the parties to reach an agreement within the fourteen-day statutory time period, and requested the appointment of a special magistrate pursuant to section 447.403, Florida Statutes (2007). The union objected to the declaration of impasse and to the appointment of a special magistrate, on grounds that section 447.4095 had been improperly invoked in the absence of a true “financial urgency.” The union persisted in this view even after PERC appointed a special magistrate, and on that basis declined to participate in proceedings before the special magistrate....

...meeting conducted pursuant to section 447.403(4), Florida Statutes (2008). In a special meeting held August 4, 2008, the School Board approved the Superintendent’s recommendation to impose the changes the special magistrate had recommended in the section 447.4095 process. 3 On August 7, 2008, the union filed with PERC an unfair labor practice charge against the School Board. The union alleged the School Board violated sections 447.501(l)(a) and (c), Florida Statutes (2008), 4 when it improperly invoked section 447.4095 and refused to postpone the legislative body hearing so that then pending and already fruitful Interest Based Bargaining negotiations could go forward. 5 The School Board asserted that the union had “waived its right to bargain the matters raised ... by failing to negotiate in good faith or at all, by refusing to take part in any of the [section 447.4095] process, including the special magistrate’s hearing, by failing to reject the special magistrate’s recommendation and failing to participate in the public hearing conducted by the School Board.” After a hearing on the union’s unfair labor practice charge on October 3, 2008, the PERC hearing officer noted that the union had declined to participate in the section 447.4095 bargaining process, and determined that no unfair labor practice was committed when the School Board invoked that provision without first establishing it had no other viable alternative to meet a financial urgency. The PERC Final Order rejected the union’s assertions that the School Board was required to demonstrate a compelling state interest, and no other possible source for funding contractual obligations, prior to proceeding under section 447.4095....

...1st DCA 2001) (“An administrative agency’s interpretation of a statute that it applies is usually accorded substantial deference unless the interpretation is clearly erroneous”). We reject the union’s assertion that the School Board was required to prove the existence of a financial urgency before proceeding under section 447.4095. Although the availability of section 447.4095 turns on “a financial urgency requiring modification of an agreement,” the statute also directs the parties to “meet as soon as possible to negotiate the impact of the financial urgency,” and provides that an “unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.” As the final order under review states, section 447.4095 was “intended to provide public employers and bargaining agents an opportunity to engage in abbreviated impact bargaining when faced with a financial urgency requiring modification of an agreement.” Requiring proof of financial urgency before resort to section 447.4095 could result in substantial delays, delays which could effectively eliminate the ability to address a financial urgency, frustrating the obvious purpose of the statute. We affirm PERC’s determination that section 447.4095 does not place any temporal preconditions on the initiation of the process section 447.4095 authorizes. But PERC’s determination that a union must participate in section 447.4095 negotiations in order to file (at some later time) an unfair labor practice charge — on grounds the public employer improperly invoked section 447.4095 in the absence of a real “financial urgency” — has no statutory warrant, is clearly erroneous, and must be reversed....

...1st DCA 1998), aff'd., 734 So.2d 1030 (1999) (citing City of Tallahassee v. Pub. Emps. Relations Comm’n, 410 So.2d 487 (Fla.1981)). Without any statutory authority, PERC’s interpretation requires that unfair labor practice allegations arising from a public employer’s invocation of section 447.4095be litigated as part of the section 447.4095process itself. The special magistrate rejected this view, as do we. Section 447.4095contains no requirement that the question whether a financial urgency actually existed must be negotiated or otherwise determined as part of the section 447.4095process. Nothing in section 447.4095evinces a legislative purpose to abrogate or alter a party’s right to charge an unfair labor practice pursuant to section 447.501. In response to the School Board’s invocation of section 447.4095 in the present case, the union “promptly and repeatedly asserted” at every stage that proceeding under section 447.4095 was not proper or required....

...According to the City, the [union’s] explicit refusal to re-negotiate constitutes a waiver of its rights.... Absent a reopener provision or proof of financial urgency, a union is not obligated to negotiate changes to contractual provisions merely upon a request to do so by the public employer. See Section 447.4095, Fla....

...d the pay schedule provisions in the collective bargaining agreement. The conduct of the [union] does not warrant an inference of relinquishment of its contractual rights. Id. at 583. The City of Ocala case did not involve a public employer invoking section 447.4095, and PERC’s determination that the City violated sections 447.501(l)(a) and (c) did not involve an interpretation of section 447.4095....

...ency” and to find that no financial urgency existed in this case. Chapter 447 contains no definition of “financial urgency.” As the final order notes, the issue was one of first impression before PERC, inasmuch as PERC “has never interpreted Section 447.4095 in the context of a public employer declaring a financial urgency under this statute.” But we do not reach the issue. At this juncture, we decline to decide what constitutes a “financial urgency” within the meaning of section 447.4095, or to make the initial factual determination regarding whether the School Board was faced with such a “financial urgency.” On this question, we defer initially to PERC....

...Dade Cnty. Police Benevolent Ass’n, 467 So.2d 987 (Fla.1985)). “PERC’s field of expertise is public sector labor regulation.” Doyle, 794 So.2d at 690 . We affirm PERC’s holding that the School Board did not forfeit the right to proceed under section 447.4095 by not seeking an adjudication of “financial urgency” before resort to section 447.4095 proceedings. But we reverse PERC’s holding that the union waived its right to contest the accuracy of the School Board’s declaration of financial urgency because the union did not participate in negotiations under section 447.4095, and remand for further proceedings. Affirmed in part, reversed in part, and remanded. WOLF and ROBERTS, JJ., concur. . Herb Tschappat, Chief Negotiator for the School Board, contacted the union during the debate over proceeding pursuant to section 447.4095, Florida Statutes (2008), in order to schedule a time to commence reopener negotiations....

...The parties met for several days and discussed methods to address the budget issues facing the School Board. A "quick fix” was proposed during these negotiations, but implementation would have required ratification by the bargaining units. The union requested the School Board forgo imposition of the section 447.4095 recommendations in order to allow the Interest Based Bargaining process to be completed. The School Board, proceeded however, with the section 447.4095 process, apparently concerned that the bargaining units would not ratify the "quick fix” proposal, so that any resulting impasse would not be resolved before the beginning of the school year, with the result the pay increases under...

...Employees Relations Commission (PERC) dismissing an unfair labor practice charge the union filed against the School Board of Manatee County (School Board), alleging that the School Board had committed an unfair labor practice by improperly invoking section 447.4095, Florida Statutes (2008). Concluding that PERC erred in dismissing the unfair labor practice charge without determining whether a "financial urgency" within the meaning of section 447.4095 existed, we reverse the final order in part, and remand for further proceedings. A public employer may declare a "financial urgency" pursuant to section 447.4095, and proceed accordingly....

...ployees' constitutional right to bargain collectively. See Art. I, § 6, Fla. Const. ("The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged."). Once the fourteen-day period specified in section 447.4095 has run, the union is free to file an unfair labor practice charge disputing the employer's claim of "financial urgency." In that event, it is incumbent on PERC to decide whether a "financial urgency" within the meaning of the statute—construed in keeping with the Florida Constitution—actually existed. If so, PERC should dismiss the charge. If not, PERC should order appropriate relief. The public employer does not have to obtain a ruling that a genuine "financial urgency" exists before it proceeds under section 447.4095. If the union chooses not to participate in negotiations contemplated by section 447.4095, it runs the risk that PERC will find that a "financial urgency" did exist, and dismiss its unfair labor practice charge, with the result that any changes implemented pursuant to section 447.4095 will remain in effect. But the union need not participate in proceedings under section 447.4095 as a precondition to obtaining a decision on whether there was in fact a "financial urgency." In the present case, the School Board and the union entered into a three-year collective bargaining agreement (CBA) in 2007....

...e. On May 5, 2008, Dr. Dearing, the Superintendent of Schools for Manatee County, informed the union that, given legislative funding levels, the School Board was declaring a "financial urgency" requiring the *1179 modification of the CBA pursuant to section 447.4095....

...o the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section. § 447.4095, Fla....

...ion under the CBA's reopener clause, in light of the School Board's financial circumstances. On May 7, 2008, the Superintendent reiterated his claim that the School Board was facing a financial urgency. The Board then went forward unilaterally under section 447.4095, informing the union of the Board's proposed modifications to the CBA on May 20, 2008. The union again responded that proceeding under section 447.4095 was unwarranted, but that it was willing to begin negotiations immediately under the reopener provision. [1] On May 23, 2008, the School Board notified PERC that it was declaring an impasse, based on the union's refusal to bargain under section 447.4095 and the failure of the parties to reach an agreement within the fourteen-day statutory time period, and requested the appointment of a special magistrate pursuant to section 447.403, Florida Statutes (2007). The union objected to the declaration of impasse and to the appointment of a special magistrate, on grounds that section 447.4095 had been improperly invoked in the absence of a true "financial urgency." The union persisted in this view even after PERC appointed a special magistrate, and on that basis declined to participate in proceedings before the special magistrate....

...on meeting conducted pursuant to section 447.403(4), Florida Statutes (2008). In a special meeting held August 4, 2008, the School Board approved the Superintendent's recommendation to impose the changes the special magistrate had recommended in the section 447.4095 process. [3] On August 7, 2008, the union filed with PERC an unfair labor practice charge against the School Board. The union alleged the School Board violated sections 447.501(1)(a) and (c), Florida Statutes (2008), [4] when it improperly invoked section 447.4095 and refused to postpone the legislative body hearing so that then pending and already fruitful Interest Based Bargaining negotiations could go forward. [5] The School Board asserted that the union had "waived its right to bargain the matters raised . . . by failing to negotiate in good faith or at all, by refusing to take part in any of the [section 447.4095] process, including the special magistrate's hearing, by failing to reject the special magistrate's recommendation and failing to participate in the public hearing conducted by the School Board." After a hearing on the union's unfair labor practice charge on October 3, 2008, the PERC hearing officer noted that the union had declined to participate in the section 447.4095 bargaining process, and determined that no unfair labor practice was committed when the School Board invoked that provision without first establishing it had no other viable alternative to meet a financial urgency. The PERC Final Order rejected the union's assertions that the School Board was required to demonstrate a compelling state interest, and no other possible source for funding contractual obligations, prior to proceeding under section 447.4095....

...1st DCA 2001) ("An administrative agency's interpretation of a statute that it applies is usually accorded substantial deference unless the interpretation is clearly erroneous."). We reject the union's assertion that the School Board was required to prove the existence of a financial urgency before proceeding under section 447.4095. Although the availability of section 447.4095 turns on "a financial urgency requiring modification of an agreement," the statute also directs the parties to "meet as soon as possible to negotiate the impact of the financial urgency," and provides that an "unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section." As the final order under review states, section 447.4095 was "intended to provide public employers and bargaining agents an opportunity to engage in abbreviated impact bargaining when faced with a financial urgency requiring modification of an agreement." Requiring proof of financial urgency before resort to section 447.4095 could result in substantial delays, delays which could effectively eliminate the ability to address a financial urgency, frustrating the obvious purpose of the statute. We affirm PERC's determination that section 447.4095 does not place any temporal preconditions on the initiation of the process section 447.4095 authorizes. But PERC's determination that a union must participate in section 447.4095 negotiations in order to file (at some later time) an unfair labor practice charge—on grounds the public employer improperly invoked section 447.4095 in the absence of a real "financial urgency"—has no statutory warrant, is clearly erroneous, and must be reversed....

...1st DCA 1998), aff'd., 734 So.2d 1030 (1999) (citing City of Tallahassee v. Pub. Emps. Relations Comm'n, 410 So.2d 487 (Fla.1981)). Without any statutory authority, PERC's interpretation requires that unfair labor practice allegations arising from a public employer's invocation of section 447.4095 be litigated as part of the section 447.4095 process itself. The special magistrate rejected this view, as do we. Section 447.4095 contains no requirement that the question whether a financial urgency actually existed must be negotiated or otherwise determined as part of the section 447.4095 process. Nothing in section 447.4095 evinces a legislative purpose to abrogate or alter a party's right to charge an unfair labor practice pursuant to section 447.501. In response to the School Board's invocation of section 447.4095 in the present case, the union "promptly and repeatedly asserted" at every stage that proceeding under section 447.4095 was not proper or required....

...According to the City, the [union's] explicit refusal to re-negotiate constitutes a waiver of its rights. . . . Absent a reopener provision or proof of financial urgency, a union is not obligated to negotiate changes to contractual provisions merely upon a request to do so by the public employer. See Section 447.4095, Fla....

...d the pay schedule provisions in the collective bargaining agreement. The conduct of the [union] does not warrant an inference of relinquishment of its contractual rights. Id. at 583. The City of Ocala case did not involve a public employer invoking section 447.4095, and PERC's determination that the City violated sections 447.501(1)(a) and (c) did not involve an interpretation of section 447.4095....

...cial urgency" and to find that no financial urgency existed in this case. Chapter 447 contains no definition of "financial urgency." As the final order notes, the issue was one of first impression before PERC, inasmuch as PERC "has never interpreted Section 447.4095 in the context of a public employer declaring a financial urgency under this statute." But we do not reach the issue. At this juncture, we decline to decide what constitutes a "financial urgency" within the meaning of section 447.4095, or to make the initial factual determination regarding whether the School Board was faced with such a "financial urgency." On this question, we defer initially to PERC....

...1st DCA 1994) (citing Public Employees Relations Comm'n v. Dade Cnty. Police Benevolent Ass'n, 467 So.2d 987 (Fla.1985)). "PERC's field of expertise is public sector labor regulation." Doyle, 794 So.2d at 690. We affirm PERC's holding that the School Board did not forfeit the right to proceed under section 447.4095 by not seeking an adjudication of "financial urgency" before resort to section 447.4095 proceedings. But we reverse PERC's holding that the union waived its right to contest the accuracy of the School Board's declaration of financial urgency because the union did not participate in negotiations under section 447.4095, and remand for further proceedings. Affirmed in part, reversed in part, and remanded. WOLF and ROBERTS, JJ., concur. NOTES [1] Herb Tschappat, Chief Negotiator for the School Board, contacted the union during the debate over proceeding pursuant to section 447.4095, Florida Statutes (2008), in order to schedule a time to commence reopener negotiations....

...The parties met for several days and discussed methods to address the budget issues facing the School Board. A "quick fix" was proposed during these negotiations, but implementation would have required ratification by the bargaining units. The union requested the School Board forgo imposition of the section 447.4095 recommendations in order to allow the Interest Based Bargaining process to be completed. The School Board, proceeded however, with the section 447.4095 process, apparently concerned that the bargaining units would not ratify the "quick fix" proposal, so that any resulting impasse would not be resolved before the beginning of the school year, with the result the pay increases under t...

...under which the statute would be valid.”); Headley v. City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013) (holding that the City of Miami did not commit unfair labor practices by unilaterally modifying the collective bargaining agreement pursuant to section 447.4095 of the Florida Statutes); see also Hollywood Fire Fighters, Local 1375, IAFF, Inc. v. City of Hollywood, 133 So.3d 1042 (Fla. 4th DCA 2014) (holding implicitly in an as applied challenge that the use of the term “financial urgency” in section 447.4095 is not unconstitutionally vague; certifying conflict on other grounds with Headley).