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The School Board of Escambia County215 West Garden Street

Pensacola, Florida 32502Telephone: (850)469-6362 / Facsimile (850)469-6303

Jeff Bergosh, Vice ChairDistrict 1

Gerald Boone, ChairDistrict 2

Linda MoultrieDistrict 3

Patricia HightowerDistrict 4

Bill SlaytonDistrict 5

Donna Sessions WatersGeneral Counsel

M E M O R A N D U M

TO: Jeff Bergosh

FROM: Donna Sessions Waters

RE: Impasse Isolation Period

DATE: 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.

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

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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 ofOcala, 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.