final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 17-29242 Reemberto
Victoria Méndez, City Attorney, and John A. Greco,
Deputy City Attorney, and Kerri L. McNulty and Kevin R.
Jones, Assistant City Attorneys, for appellant.
Klausner, Kaufman, Jensen & Levinson, and Robert D.
Klausner, Adam P. Levinson and Paul A. Daragjati
(Plantation), for appellees.
ROTHENBERG, C.J., and EMAS and LINDSEY, JJ.
City of Miami ("the City") filed suit against the
City of Miami Firefighters' & Police Officers'
Retirement Trust & Plan ("the Trust") and the
Board of Trustees of the City of Miami Firefighters'
& Police Officers' Retirement Trust ("the
Board"), seeking temporary and permanent injunctive
instant appeal, the City seeks review of the trial
court's order (1) denying the City's emergency motion
for temporary injunctive relief; and (2) granting the Trust
and the Board's motion for abatement and abating the
proceedings below, pending exhaustion of the conflict
resolution procedures in Chapter 164.
reasons that follow, we reverse the trial court's order
denying the City's emergency motion for temporary
injunctive relief, and affirm the trial court's order
abating the proceedings.
AND PROCEDURAL HISTORY
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. 20, Fraternal Order of Police ("the
Union"). The City implemented this change to the CBA by
amending its pension ordinance, resulting in reduced pension
benefits for retired police officers ("the 2010 pension
Union filed an unfair labor practice charge with the Public
Employees Relations Commission ("PERC") on
September 21, 2010, contending that the City improperly
modified the CBA without completing the impasse resolution
processrequired by the financial urgency statute.
See §447.403, Fla. Stat. (2010). The hearing
officer found that the City had properly invoked the
financial urgency statute and was not required to complete
the impasse resolution procedures before implementing changes
to the CBA. PERC adopted the hearing officer's
recommendation in its final order dismissing the Union's
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. Headley v.
City of Miami, 118 So.3d 885 (Fla. 1st DCA 2013).
Union sought review from the Florida Supreme Court, and on
March 2, 2017, the Florida Supreme Court issued its opinion,
agreeing with the Union that a 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 CBA only after the parties
have completed the impasse resolution proceedings and have
failed to ratify the agreement." Id. at 9. The
Court quashed the First District's decision and remanded
"for proceedings consistent with this decision."
Id. at 10. On remand, the First District issued an
order remanding the case to PERC "for further
proceedings consistent with the Florida Supreme Court's
remand, PERC concluded that the City failed to comply with
the impasse resolution procedures of section 447.403, and
that it was not statutorily authorized to unilaterally modify
the collective bargaining agreement. PERC further concluded
that the City engaged in an unfair labor
practice when it adopted the 2010 pension
ordinance, because the City unilaterally changed wages,
pensions, health insurance and other monetary items for the
police union employees prior to completing the impasse
resolution procedures. The order remanded the cause to a
hearing officer to recommend an appropriate remedy. On July
20, 2017, the hearing officer recommended that the City be
directed to rescind its modifications to the wages, health
care, and pension benefits of employees represented by the
Union and that PERC direct the parties to return to the
status quo ante as of September 29, 2010, the day prior to
the adoption of the 2010 pension ordinance.
September 27, 2017, the Board sent a letter to the City
Manager, inviting the City to engage in discussion with the
Board on the issues arising out of the Florida Supreme
Court's decision and PERC's recent orders ("the
Board's September 27 letter").
October 18, 2017, PERC adopted the hearing officer's
recommendations and determined that "[t]he appropriate
remedy in this case requires the City to rescind the changes
in wages and benefits that were legislatively imposed on
September 30, reinstate the status quo ante as of September
29, 2010, and make the employees whole." PERC directed
the clerk to open a back-pay case and schedule a hearing
before a hearing officer for that purpose. Importantly, the
PERC order specifically provided:
This is not an appealable final order because the
amount of back pay remains for determination. When the amount
of back pay is resolved, the Commission will issue a
final order that will allow either party to appeal the ...