STATE OF FLORIDA

ADMINISTRATION COMMISSION

AC Case No.: SBA-17-003

DAVID MORGAN,
Sheriff of Escambia County

Petitioner,
v.

ESCAMBIA COUNTY, FLORIDA,

Respondent.

Appeal of Sheriff David Morgan, Sheriff of Escambia County,

of Budget for Fiscal Year 2017-2018

ESCAMBIA COUNTY'S
MOTION TO ENFORCE SETTLEMENT

Respondent, Escambia County, Florida (County), moves this

Commission to enforce the settlement reached between Respondent and

Petitioner, David Morgan, Sheriff of Escambia County, pursuant to Rule 28-

106.204 and Section 120.57(4), Fla. Stat. (2017) for the following reasons:

INTRODUCTION

Sheriff David Morgan (hereinafter Sheriff), submitted an appeal of the

County's budget for the Fiscal Year 2017-2018 using the statutory procedure

set forth in Section 30.49(4 )(a), Fla. Stat. (2017). The parties engaged in

mediation through the offices of Thomas H. Bateman, Ill of the law firm of
Messer and Caparello, P.A. The County agreed to pay for all costs of

mediation. The mediation was held at the offices of County Administration

on March 9, 2018. As a result of the mediation, a mediation agreement was

executed, a copy of which is attached and incorporated by reference as

Exhibit "A", and a settlement reached. The Board of County Commissioners

approved the settlement at a public Board meeting on March 15, 2018.

ARGUMENT

I. SHERIFF HAS REFUSED TO ABIDE BY THE SETTLEMENT AS

REFLECTED IN THE MEDIATION AGREEMENT WHICH THIS
COMMISSION SHOULD ENFORCE.

Pursuant to Board approval, a proposed interlocal agreement (IA) was

submitted to Sheriff as provided by the mediation agreement. In his draft of

the IA, Sheriff proposed new terms and asserted that the four payments set

forth in Paragraph 1. b. of the mediation agreement actually did not

encompass all benefits and raises for the Fiscal Years beginning October 1,

2018 and ending September 30, 2021, despite its express language. Rather,

Sheriff argued that there should have been language allowing for increases

in Sheriff's budget for the next three years for escalation of health care costs,

Workers' Compensation insurance and employer contributions to the Florida

Retirement System.

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 Florida courts uniformly favor settlement and seek to enforce

settlements reached between litigating parties. Robbie v. City of Miami, 469

So. 2d 1384 (Fla. 1985); Spiegle v. H. Allen Holmes, Inc., 834 So. 2d 295,

297 (Fla. 4th DCA, 2002). Furthermore, even though a subsequent

document is contemplated to implement a settlement, a settlement is not

invalidated or unenforceable even if the more formal agreement is not

signed. Warrior Creek Development v. Cummings, 56 So. 3d 915, 917 (2d

. DCA 2011) (a separate, unexecuted settlement agreement did not invalidate

settlement reached through a series of emails); Hansen v. Maxfield, 23 So.

3d 736, 740 (Fla. 1st DCA 2009) (letters exchanged between counsel

constituted a binding settlement agreement as the letters contained the

essential terms of the settlement); Seal Products v. Mansfield, 705 So. 2d

973, 976 (Fla. 3d DCA 1998) (binding settlement took place even though

separate settlement stipulation was never drafted)'.

The terms of the mediation agreement are unambiguous and clear.

Paragraph 1. b. provides that the payments contemplated for the three-year

period beginning October 1, 2018 and ending September 30, 2021 were

"inclusive of all benefits and all raises for the implementation of a pay plan."

No further payments were to be made for raises and benefits other than the

three annual payments described in Paragraph 1.b. This Commission has

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always promoted informal settlement between the parties, which has been

communicated to both parties through the Office of Policy and Budget, Public

Safety Unit. Most importantly, in Section 14.202, Fla. Stat. (2017), which

established the Administration Commission, the Legislature has given this

Commission the power to take affirmative action through the approval of the

Governor and two other members of the Commission. The Legislature has

not proscribed the Commission from enforcing settlements of budget

appeals.

II. SHERIFF'S CLAIM OF A MISTAKE IN THE WORDING OF THE

MEDIATION AGREEMENT WILL NOT PRECLUDE
ENFORCEMENT OF SETTLEMENT.

Sheriff may urge that the settlement cannot be effectuated because it

does not include escalation clauses for increasing health care costs,

Workers' Compensation coverage or FRS contributions should those occur

in the coming years encompassed by the settlement. As expressed by

Florida courts, "[a] mistake is mutual when the parties agree to one thing and

then, due to either a scrivener's error or inadvertence, express something

different in the written instrument." Feldman v. Kritch, 824 So. 2d 274, 277

(Fla. 4th DCA, 2002) (citing Circle Mortgage Corp. v. Klein, 645 So.2d 75, 78

(Fla. 4th DCA 1994)). However, relief from a settlement is not available, if

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there is only a unilateral mistake. Id. (citing DR Lakes, Inc. v. Brandsmart

U.S.A. of West Palm Beach, 819 So. 2d 971, 974 n. 2 (Fla. 4th DCA, 2002)).

Here, Sheriff has had a change of heart as to the settlement reached.

Sheriff may argue that his representatives at the mediation conference were

under the impression or believed that the terms of the settlement could be

renegotiated as part of the execution of an interlocal agreement. However,

mistaken assumptions or misconceptions about what terms mean are

unilateral mistakes which will not relieve the Sheriff of his obligations under

the agreed upon settlement. It is black letter law that mutual assent or a

meeting of the minds is determined. by the external signs of mutual assent

and not the motives of a party in reaching an agreement. Blackhawk Heating

and Plumbing Co., Inc. v. Data Lease Financial Corp., 302 So. 2d 404, 407

(Fla. 1974).

The terms of the Mediation Agreement, attached as Exhibit "A",

expressly provide that the annual payments include "all raises and all

benefits." Any argument that healthcare, FRS or Workers' Compensation

costs would be beyond the terms of "benefits" and "raises" is a

misconception harbored by Sheriff's representatives either at or subsequent

to mediation. However, this unilateral mistake by Sheriff in what the terms

of the settlement meant cannot provide a legal escape route from the

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settlement. The external signs of mutual assent are reflected in Sheriff's

representatives' signatures to the mediation agreement after several hours

of negotiation. The mediation agreement contained no reservation or

contingency that Sheriff himself must approve the settlement. The only

condition was the approval by the Board of County Commissioners which

was fulfilled on March 15, 2018

CONCLUSION

Florida, both through its courts and its administrative tribunals, favors

settlement and enforcement of settlements whenever possible. Sheriff and

County met in good faith and reached a settlement which was approved by

the Board of County Commissioners. The execution of an interlocal

agreement was solely intended as a mechanism to implement the binding

settlement. The motion to enforce settlement should be granted.

[This Space Intentionally Left Blank]

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 CERTIFICATE OF CONFERENCE PURSUANT TO

RULE 28-106.204, F.A.C.

Counsel for County has conferred with counsel for Sheriff who objects

to the granting of this motion to enforce settlement.

A · on P. Rogers, County 'A torney

Florida Bar No . 011230
Charles V. Peppler, Deputy County Attorney
Florida Bar No. 239739
221 Palafox Place, Suite 430
Pensacola, FL 32502
Attorneys for Respondent, Escambia County

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 29, 2018, I electronically filed the

foregoing with the Clerk of the Administration Commission by using e-filing

and that this document was furnished by email and U.S. mail to Gerald

Champagne, General Counsel and attorney for David Morgan , Escambia

County Sheriff at 1700 West Leonard reet, Pensacola, Florida 32501 .

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 MEDIATION AGREEMENT

This agreement made this 9th day of March 2018 by and between the parties for

the proposed settlement of the legal proceedings captioned Jn Re: Sheriff David

Morgan, Case No. SBA-17-003, and the parties hereby agree as follows:

1. The Board of County Commissioners shall agree to do the following in

furtherance of a four year pay plan requested by the Sheriff:

a. In the first year, payment of One Million Dollars ($1,000,000.00) for Fiscal

Year 2017/2018 to be paid according to the standard formula commencing in their April

disbursement for a six-month period of time. This payment shall completely resolve the

Sheriffs budget request for the Fiscal Year 2017/2018.

b. Beginning October 1, 2018 and ending September 30, 2021 for a period of

three years, the Sheriff shall be paid a sum of Two Million Six Hundred Thousand

Dollars ($2,600,000.00) for two years and a sum of Two Million Nine Hundred Thousand

Dollars ($2,900,000.00) for the last year inclusive of all benefits and all raises for the

implementation of a pay plan. Each annual payment shall be in addition to the Sheriffs

operational budget adopted by the County for the immediate preceding Fiscal Year.

c. Beginning April 1, 2018, the Board will reduce by 50% the remaining

budgets for discretionary Outside Agencies funded by the General Fund with the

exception of ECC and Pathways for Change. These funds will be used to fund the

implementation of the Sheriffs pay plan. In Fiscal Year 2019 through Fiscal Year 2021

funding for Outside Agencies in the General Fund will not exceed $734,374.00.

d. In addition, the implementation of the pay plan shall be paid by 50% of the

Commissioner's Discretionary Fun~ totaling One Hundred Twenty-Five Thousand

EXHIBIT

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Dollars ($125,000.00) to be paid annually during the life of the plan to implement the

Sheriff's pay plan.

2. The Sheriff shall agree to do the following:

Each quarter, the Sheriff shall pay 50% of the funds received in the Law

Enforcement Trust Fund (LETF) to offset school resource officer expenses, where

possible. When this is not feasibl~, the remaining funds of this 50% shall be used to

offset other statutorily allowed General Fund expenses.

3. This Agreement is contingent upon approval by the Board of County

Commissioners. The parties understand that the Board of County Commissioners will

have to meet in attorney/client session prior to voting at a public meeting as to the

approval of this mediation agreement.

4. The parties agree and understand the terms of the mediation agreement

will be memorialized by an interlocal agreement to be approved by the Board of County

Commissioners.

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 5. The parties shall cooperate in the dismissal of the appeal with the

Administrative Commission after all parties approve the settlement and execute a

mutually agreeable interlocal agreement.

The parties by their hand and seal agree to the terms and conditions set forth

above.

ERIC HAINE , CHIEF DEPUTY SHERIFF