STATE of Florida, et al., Appellants, v. FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., et al., Appellees, 613 So. 2d 415

GRIMES, Justice. We have for review State v. Florida Police Benevolent Association, 580 So.2d 619 (Fla. 1st DCA 1991), which declared a proviso in a state appropriations bill unconstitutional. We have jurisdiction under

article V,

section 3(b)(1) of the Florida Constitution. Pursuant to

chapter 447 of the Florida Statutes (1987), the governor entered into collective bargaining agreements with several unions. The agreements were to be effective between July 1, 1987, and June 30, 1990. These agreements incorporated by reference the then-existing provisions of

section 22A-8 of the Florida Administrative Code, which governs attendance and leave of career service employees. Under this section, employees were entitled to 17.333 hours per month of annual leave and four hours and twenty minutes per month of sick leave. If an employee accumulated more than 240 hours of annual leave in a year, the employee had the option of converting the excess hours into sick leave or receiving a cash payment for one-half of the excess hours. Finally, the rules provided that sick leave could only be used when the employee’s illness was verified in writing by a physician. In 1988, the legislature enacted its general appropriations act. Ch. 88-555, Laws of Fla.

Section 9.3.A(5) of the act contained proviso language that altered the leave policy for career service employees, and thus the leave awards for which the unions had bargained. Under the proviso, annual leave was decreased from 17.333 hours per month to thirteen hours per month. Sick leave was increased from four hours and twenty minutes per month to eight hours per month. All accumulated annual leave in excess of 240 hours was cancelled, thus eliminating the cash-payment and sick-leave conversion options.

Finally, the requirement of obtaining a written verification of illness for employees claiming sick leave was eliminated. This last measure apparently was aimed at preventing employees from being paid for time off necessary to visit the doctor to obtain the written verification. The unions contend that the legislature’s actions abridged their right to collectively bargain, which is guaranteed by the Florida Constitution. Both the trial court and the district court of appeal agreed. The trial court granted

summary judgment in favor of the unions, and the district court of appeal affirmed the judgment, finding

section 9.3.A(5) of the Appropriations Act to be invalid under

article I,

section 6. In addressing this issue, we begin by examining the extent of the right of public employees to collectively bargain. In Dade County Classroom Teachers’ Association v. Ryan, 225 So.2d 903, 905 (Fla.1969), this Court construed

article I,

section 6 to include public employees. Three years later we threatened to impose judicial guidelines if the legislature failed to pass legislation implementing the right of public employees to engage in collective bargaining. Dade County Classroom Teachers Ass’n v. Legislature, 269 So.2d 684 (Fla.1972). Thereafter, the legislature enacted

Part II of

Chapter 447 pertaining to public employees. While this Court has been vigilant in upholding the right of public employees to collectively bargain, we have also recognized that public employee bargaining is not the same as private bargaining. Thus, in United Teachers of Dade v. Dade County School Board, 500 So.2d 508, 512 (Fla.1986), we stated: Our holding in Ryan that “public employees have the same rights of collective bargaining as are granted private employees,” 225 So.2d at 905, did not, however, mean that there exists no differences between public and private employee bargaining.

Indeed, we recognized as much in City of Tallahassee [v. Public Employee Relations Comm’n, 410 So.2d 487 (Fla.1981) ] by stating that “[i]t would be impractical to require that collective bargaining procedures ... be identical in the public and the private sectors.” 410 So.2d at 491. Myriad distinctions, not just those of procedures, exist between public and private collective bargaining, and have been noted by the highest courts of several sister states. See, e.g., West Hartford Education Association, Inc. v.

DeCourcy, 162 Conn. 566, 295 A.2d 526 (1972) (private sector view of wages, hours, and terms and conditions of employment is not easily superimposed on the field of education); Spokane Education Association v. Barnes, 83 Wash.2d 366, 517 P.2d 1362 (1974) (area of management control in private sector different than the duty imposed on those who manage schools).

We find wise the counsel of Justice Nix, speaking for the Supreme Court of Pennsylvania: [W]e are not suggesting that the experience gained in the private sector is of no value here, rather we are stressing that analogies have limited application and the experiences gained in the private employment sector will not necessarily provide an infallible basis for a monolithic model for public employment. Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 500, 337 A.2d 262, 264-265 (Pa.1975). See also City of Tallahassee v.

Public Employee Relations Comm’n, 410 So.2d 487, 490-91 (Fla.1981). In fact, courts and commentators uniformly agree that public bargaining is inherently different from private bargaining. For example, in Antry v.

Illinois Educational Labor Relations Board, 195 Ill.App.3d 221, 141 Ill.Dec. 945, 552 N.E.2d 313 (1990), the court addressed the necessity of political activities by public union representatives in order to achieve what private sector unions can achieve solely at the bargaining table. [Cjourts have noted one important difference between collective bargaining in the public sector, as opposed to the private sector, is that in the public sector, it is often necessary for a labor union to, in effect, obtain approval of a proposed contract by a legislative body through appropriation of the funds required to provide the wage and salary increases called for by the contract, in addition to obtaining the assent of the employing governmental agency or department to the terms of the contract.

Id. 141 Ill.Dec. at 975, 552 N.E.2d at 343. See also Daniel P. Sullivan, Public Employee Labor Law § 11.4 (1969) (public sector employees engaging in wage negotiations are in a different position than private employees, because the employer is not the final authority for public employees — the legislature is). Indeed, the Missouri Supreme Court found the differences between public and private employees to be so overwhelming that it held that the Missouri Constitution’s collective bargaining provision did not apply to public employees at all. City of Springfield v. Clouse, 206 S.W.2d 539 (Mo.1947).

Most importantly, the court noted, private employers can be bound by collective bargaining agreements, while legislative discretion cannot be bargained away. Id. at 545. The court decided that the constitutional provision could not apply to public employees because a collective bargaining agreement in this context would amount to no more than an expression of the employees’ desires for the lawmaker’s consideration and guidance. See also Communications Workers v.

Union County Welfare Board, 126 N.J.Super. 517, 315 A.2d 709, 715 (App.Div.1974) (in interpreting statute implementing constitutional right to collectively bargain, which itself specifically differentiates between public and private employees, court noted “salient differences between public and private employment relations which necessarily affect the characteristics of collective bargaining in the public sector”). The fact that public employee bargaining is protected under Florida’s Constitution does not require us to ignore universally recognized distinctions between public and private employees.

The constitutional right to bargain must be construed in accordance with all provisions of the constitution. Surely it was not intended to alter fundamental constitutional principles, such as the separation of powers doctrine. Under the Florida Constitution, exclusive control over public funds rest solely with the legislature. Art. VII, § 1(c), Fla. Const. (“No money shall be drawn from the treasury except in pursuance of appropriation made by law.”). This fact in and of itself necessitates a realization that public and private bargaining is inherently different.

Unlike the case of a private employer, whose agreement with a union binds the employer to fund its terms, the public employer, deemed by statute to be the governor, cannot so bind the guardian of its funds, the legislature. The legislature and the district courts of appeal have interpreted

article I,

section 6, in this manner. Thus,

section 447.309(2) provides that “[t]he failure of the legislative body to appropriate funds sufficient to fund the collective bargaining agreement shall not constitute, or be evidence of, any unfair labor practice.” Further, in Pinellas County Police Benevolent Association v. Hillsborough County Aviation Authority, 347 So.2d 801, 803 (Fla. 2d DCA 1977), the court said: A public employee’s constitutional right to bargain collectively is not and cannot be coextensive with an employee’s right to so bargain in the private sector. Certain limitations on the former’s right are necessarily involved.

For instance, a wage agreement with a public employer is obviously subject to the necessary public funding which, in turn, necessarily involves the powers, duties and discretion vested in those public officials responsible for the budgetary and fiscal processes inherent in government. (Footnote omitted.) See also United Faculty of Florida v. Board of Regents, 365 So.2d 1073 (Fla. 1st DCA 1979) (legislature not required to fund public employees’ collective bargaining agreement).

Any other rule would permit the executive branch of government, by entering into collective bargaining agreements calling for additional appropriations, to invade the legislative branch’s exclusive right to appropriate funds. Indeed, to accept such a rule would require this Court to abrogate years of strict adherence to the separation of powers doctrine. See generally Chiles v. Children A, B, C, D, E, & F, 589 So.2d 260 (Fla.1991) (neither power to appropriate nor power to reduce appropriations can be delegated to executive); State ex rel. Kurz v.

Lee, 121 Fla. 360, 384, 163 So. 859, 868 (1935) (requiring legislative appropriation prevents expenditure of public money “without the consent of the public given by their representatives in formal legislative Acts ... [and secures to the legislature] the exclusive power of deciding how, when, and for what purpose the public funds shall be applied in carrying on the government”). This is not to say that the constitutional right to collectively bargain is meaningless for public employees.

In those states which do not have such a constitutional right, the right of public employees to even go so far as to organize and sit at a bargaining table with their employers is subject to the whims of the legislature. In Florida, by contrast, the legislature may not restrict the right to bargain. See, e.g., City of Tallahassee, 410 So.2d 487 (invalidating statute prohibiting bargaining over retirement benefits).

What the constitutional provision does not and cannot do, however, is give to public employees the same rights as private employees to require the expenditure of funds to implement the negotiated agreement. As is true in most states where public employees bargain, the enforcement of the monetary terms of the agreement is subject to the appropriations power of the legislature. The constitutional right of public employees to collectively bargain does not increase the right as commonly understood, but does guarantee that the right may not be taken away or limited.

Accordingly, the collective bargaining agreements entered into by the unions in this case were subject to the appropriations power of the legislature, as are any agreements entered into by public employees. Indeed, the agreements themselves recognized this. The fact that this contingency differentiates public bargaining from private bargaining does not represent an abridgment of the right to collectively bargain, but rather an inherent limitation due to the nature of public bargaining itself. We turn now to the issue of the power of the legislature to make the unilateral changes discussed above.

Other states have addressed a similar issue in the less complicated context of the legislature’s refusing to fund a negotiated benefit, or underfunding that benefit. In those cases where the legislature did not appropriate the amount necessary to implement the negotiated agreements, the vast majority of courts have held that the agreements were subject to this contingency. Arguments that the legislature was somehow bound by the negotiated agreement have been rejected as contrary to the legislature’s exclusive control over public funds. See, e.g., District 2A, Transp., Technical, Wrhse., Indus. & Serv.

Employees Union v. Government of the Virgin Islands, 794 F.2d 915 (3d Cir.1986) (legislature not required to appropriate funds to honor impasse arbitration award regarding salaries for public employees); Public Employees’ Local 71 v. State, 775 P.2d 1062 (Alaska 1989) (rejecting union’s challenge to legislative resolution refusing to fund negotiated pay raise; monetary terms of agreement not effective until funds are appropriated by the legislature, at its discretion); Suffolk County v.

Labor Relations Comm’n, 15 Mass.App.Ct. 127, 444 N.E.2d 953 (funding by legislature for negotiated raises and bonuses could not be compelled), review denied, 388 Mass. 1103, 447 N.E.2d 670 (1983); Minnesota Educ. Ass’n v. State, 282 N.W.2d 915 (Minn.1979) (upholding legislative reduction of salary increase from 18% to 14% as part of legislature’s final control over appropriations), appeal dismissed, 444 U.S. 1062, 100 S.Ct. 1001, 62 L.Ed.2d 744 (1980). See also Stephen F. Befort, Public Sector Bargaining: Fiscal Crisis and Unilateral Change, 69 Minn.

L.Rev. 1221, 1243-45 (1985) (legislative power over appropriations combined with definition of the executive as the employer results in potential for unilateral change of agreements if legislature fails to appropriate all funds necessary to implement a contract; notes that “courts consistently have refused to enforce the financial provisions of state employee agreements in the absence of an express legislative appropriation”). Contra AFSCME/Iowa Council 61 v. State, 484 N.W.2d 390 (Iowa 1992).

The facts of the present case are somewhat unique, in that the legislature did not simply underfund or refuse to fund certain benefits, but rather unilaterally changed them. Accordingly, we must determine whether the proviso language at issue here falls under the exclusive domain of the legislature’s appropriations power. In making this determination, we find persuasive the New Jersey case of State v. State Troopers Fraternal Association, 91 N.J. 464, 453 A.2d 176 (1982), a case factually similar to the case at bar.

There, the New Jersey Legislature changed a term of a collective bargaining agreement through an appropriations act. The collective bargaining agreement gave the troopers participation in the state’s prescription drug program, which at the time provided that the state would pay for drugs, but the employee would pay a deductible of $1.25 per prescription. In its next appropriations act, the legislature allocated funds for the program “based upon a copayment [by employee] of $2.50” per prescription.

The court upheld this change, basing its decision on a clause in the contract which provided that all terms were “subject to budgetary and/or legislative limitations or changes.” The court also addressed whether the legislature’s exclusive power over appropriations entitled it to make unilateral program changes. The state argued that requiring funding at the $1.25 level would violate the appropriations provision of the constitution, since the legislature chose to fund the program at the $2.50 level only.

The court addressed this argument by first noting that the legislature was not bound to fund the program simply because the contract called for it. However, because the legislature did choose to fund the program, and because there was no suggestion that the money appropriated was insufficient to cover the program at the $1.25 level, the court held that enforcing the program at this level would not infringe on the appropriations power. Id. 453 A.2d at 179. We find this test to be a reasonable accommodation of both the right to collectively bargain and the legislature’s exclusive control over the public purse.

Where the legislature provides enough money to implement the benefit as negotiated, but attempts to unilaterally change the benefit, the changes will not be upheld, and the negotiated benefit will be enforced. This result would not impede upon the legislature’s exclusive power over public funds, because the funds would already be there to enforce the benefit. Where the legislature does not appropriate enough money to fund a negotiated benefit, as it is free to do, then the conditions it imposes on the use of the funds will stand even if contradictory to the negotiated agreement.

See United Faculty, 365 So.2d 1073. Any other result would necessarily entail impeding on the right to appropriate, since enforcing the negotiated agreement would necessitate additional funding under this scenario. For the foregoing reasons, we reverse the district court’s decision declaring

section 9.3.A(5) of the 1988 Appropriations Act to be unconstitutional, quash the order of the trial court granting

summary judgment in favor of the unions, and remand to the trial court for further proceedings consistent with this opinion. There is currently no record evidence on the issue of whether the negotiated benefits could be fully funded by the money already allocated by the legislature. Indeed, the parties cannot even agree on the question of whether the legislature’s benefits program actually saved the state money over the cost of funding the benefits as negotiated.

Therefore, the trial court must determine whether the legislative appropriation was sufficient to fund the annual and sick leave provisions of the collective bargaining agreement. If it was, these provisions of the collective bargaining agreement must be enforced. If these provisions were underfunded, the legislative determination shall control. It is so ordered. OVERTON, McDonald and HARDING, JJ., concur. KOGAN, J., dissents with an opinion in which BARKETT, C.J., and SHAW, J., concur. .

Article I,

section 6, Florida Constitution, provides:

SECTION 6. Right to work. — The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike. . That provision provides as follows: "That employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” Art. I, § 29, Mo. Const. .

Although generally the funding of a collective bargaining agreement is thought of in terms of financing wages, the providing of benefits to public employees, including annual and sick leave benefits, also necessarily requires the expenditure of public funds and therefore implicates the legislature’s appropriations power. . We therefore expressly disagree with that portion of City of Springfield v. Clouse, 206 S.W.2d 539 (Mo.1947), in which the Missouri Supreme Court asserted that public bargaining can be no more than a mere suggestion to the legislature.

While this may be somewhat true of those portions of the agreement requiring public funding, to characterize even these provisions as a mere suggestion ignores the practical.benefits of the political backing of these provisions by both the governor and the unions themselves. The fact that the governor is bound by the negotiated agreement and is required to include full funding for the agreement in his proposed budget, see

section 447.309(2), Florida Statutes (1987), gives significant weight to the effectiveness of collective bargaining for public employees. .

Each agreement contained a "Savings Clause,” which provided as follows: If any provision of the Agreement, or the application of such provision, should be rendered or declared invalid, unlawful, or not enforceable, by any court action or by reason of any existing or subsequently enacted legislation ... then such provision shall not be applicable, performed or enforced, but the remaining parts or portions of this Agreement shall remain in full force and effect for the term of this Agreement. .For this reason, we reject the unions’ argument that the proviso language in this case must be justified by a compelling state interest.

See Hillsborough County Governmental Employees Ass'n v. Hillsborough County Aviation Auth., 522 So.2d 358, 362 (Fla.1988) (fundamental right to collectively bargain subject to abridgment only upon a showing of a compelling state interest). This holding is inapplicable here, because the exercise of legislative power over appropriations is not an abridgment of the right to bargain, but an inherent limitation.

Of course, should the legislatively mandated change fall outside the appropriations power, it would constitute an abridgment of the right to bargain and would therefore be subject to the compelling state interest test. . Had that been the case here, then

section 447.309(2) would apply, requiring the governor to administer the collective bargaining agreement on the basis of the amount appropriated. . The unions contend that the legislature should have provided for the governor and the unions to return to the bargaining table to negotiate possible changes in annual and sick leave, rather than unilaterally imposing these changes. While such a solution would certainly be preferable to unilateral changes, we refuse to impose renegotiation on our own prerogative.

Although some courts have ordered renewed negotiations after a legislature fails to fund a provision, this remedy has only been imposed where the legislature itself mandated it. See Suffolk County, 444 N.E.2d 953 (statute mandates return to parties for further bargaining where legislature denies request for appropriations); Public Employees’ Local 71, 775 P.2d 1062 (legislature’s resolution directed parties to renegotiate monetary terms after funding was rejected). Accordingly, such a solution would be completely without precedent as a judicially-imposed remedy, in addition to being administratively untenable.

We are unwilling to eliminate the certainty of- appropriations by requiring renegotiation and then a subsequent reconvening of the legislature to pass a new appropriation every time the legislature attaches conditions to appropriations that happen to touch upon a collective bargaining term. . As an alternative argument, the unions contend that this proviso language deals with subjects other than appropriations and is therefore unconstitutional under

article III,

section 12 of the Florida Constitution. See Brown v. Firestone, 382 So.2d 654, 663-64 (Fla.1980). We reject this argument. The proviso language here "directly and rationally relates” to the appropriation. . The state argues that the Savings Clauses found in the present contracts likewise subject the unions to subsequent alterations of terms by the legislature.

To the extent that the legislative alterations fall under the appropriations power, this argument is essentially correct — not because the Savings Clauses limit the binding nature of the contract, but because the inherent nature of public bargaining itself so limits it. However, to the extent these Savings Clauses could be construed as general provisions bargaining away the right to bargain, they are void under the Florida Constitution. .

Of course, should the legislature be able to show a compelling state interest justifying the abridgment of the right to collectively bargain, its unilateral changes would be enforced. . We do not pass on whether the legislature could subsequently reduce an appropriation which it had previously enacted to fund a collective bargaining agreement.