Bear Trap Part III

 

The legal saga over a 401(a) plan's "legality"  will eventually be settled.  But for the clerk of the court and comptroller--either outcome produces a pyrrhic victory so far as I can tell.....

As I discussed via multiple blog posts way back in June  and August, respectively, of last year--the ratcheting up of legal wrangling back and forth by the Clerk's office really does not help the Clerk's case.

It's simple.  The 401 a plan is either legal for commissioners--or it isn't.

And a judge will decide this.

And then we can all move forward---- as the legality of the plan is and aways has been the seminal question that needs to be answered so far as I am concerned.

Meanwhile--a bona fide contract approved by the Escambia BCC has been terminated by the clerk (constructively) via her failure to uphold the terms of it by the withholding of payments stipulated within said contract.  That's what my issue is and has been from the beginning--I don't take the plan at issue but I jealously guard the powers, rights, and responsibilities of this board, just as constitutional officers like the clerk guard their powers, duties and responsibilities under statute.  The passive allowance of this unilateral decimation of a bona fide contract of the BCC by the clerk  is bad  precedent to set, outside the purview of the clerk, and in very poor form if----as many believe-----the contract and stipulations as to 401 a payments are in fact legal.

But again, that is now in the hands of  one judge and a bunch of lawyers, and now even more lawyers(with new lawyers signing up recently to jump on the clerk's side churning up legal bills, fees, costs and $$ invoices the clerk will likely ask us to pay--not unlike orcas and sharks churning the bloody water feeding on a decaying whale carcass  out  at sea....it's an ugly display.  Meanwhile-the legal team the county is utilizing has provided their service pro-bono).  

So yes the legality question will get worked out--some lawyers will churn fees and costs others are

working free for the county, and eventually we will move forward from there, one way or the other.

Like deep sea predators churning the water feasting on a whale carcass-new lawyers have entered the county/clerk 401(a) litigation, on the clerk's side, (BCC lawyers are working pro bono) writing massively long briefs, churning up legal costs and fees that will eventually have to be paid from public funds......

But for the clerk--a victory for her (if she is able to get a ruling stating that the payment of the 401a to a commissioner is illegal) is pyrrhic.

If she is wrong, and the payments are legal--it's even worse.

It is a bear trap she's in--either way the ball bounces and nobody seems to be seeing this or saying this except for yours truly.

Because if she paid an illegal charge (and IF  this is shown to be true from the court ruling)--she sure will be vindicated on the question of whether or not she has to stop paying these fees.  She has stopped and this will have been shown to be appropriate.  But wait--if that is the outcome--it will be pointed out that she, the clerk, willfully paid these same payments throughout Commissioner Robert Bender's tenure from 2019 through Dec. of 2021--to the tune of over $100K!  (at a recent meeting, Commissioner Bender even asked the clerk directly why she and her office answered multiple queries he (Bender) made--including phone calls directly to the clerk herself where she and here office stated the plan was appropriate and legal to Bender!) And under state statutes--an illegal charge paid by the clerk must be repaid by the clerk from personal funds--not budgeted departmental funds.  So if that is the outcome and the clerk is right on this and the plan is illegal---is that a win for her if she has to turn around and write a $100K check to reimburse the county?

On the other side of the coin--if the contract with ICMA was and is found to be legal--then the improper withholding of the payments to my three counterparts will most assuredly draw an ethics complaint (or multiple) for misfeasance and/or malfeasance via non-payment of a bona fide BCC contract.  

That could result in penalties up to and including removal from office for the clerk.

So either way--it is a bear trap.  It will spring.  and either way the "controversy" will be settled.

But for the clerk--I'm not certain either outcome will work out well.............