Pam Childers Loses in Court on Motion(s) for Summary Judgment against County 401(a) plan......

Commissioners were notified late this afternoon that both of Escambia County Clerk of the Court Pam Childers' motions for summary judgment in the Escambia County 401(a) lawsuit were denied by Circuit Court Judge William Stone. 

Denied.  

These motions have been before the court for several months and this is a huge loss for the clerk and a big win for Escambia County--- and paves the way for this case to move forward to trial.

FULL DISCLOSURE:  I do not take the 401(a)--I take the FRS pension plan, which I joined when I was on the school board beginning in 2006.  So I have no "dog in the hunt" as it relates to the 401(a) plan issue.  But what I do have is a philosophical disagreement with the politicization and subsequent weaponization of this issue by the clerk via her unilateral decision to summarily stop paying these amounts---after she paid them, business as usual, for years and years.  Suddenly, coincidentally after rumors and hearsay that someone allegedly called her an unflattering name---then suddenly this plan, in her opinion, was/is ILLEGAL!!  This plan is not illegal, her legal opinions were weak and this situation is purely political and an attempted power game, so far as I can tell.

Read both of the orders from Judge Stone below...

Judge Stone's Most Recent Order on the 401(a) Suit is Interestingly Cryptic --YET Telling Also....

 Below is the 3 page order from Judge Stone, the Circuit Court Judge seated in Okaloosa County who is handling the County's Case regarding the 401(a) issue between the Board of County Commissioners and the Clerk of the Court, Pam Childers.  Although caught off guard by Jim Little's article on this topic (as the BCC was not made aware of this order before it made it into the PNJ Friday Morning)--I did note something from Little's article (and the Judge's order) which was somewhat interesting and telling:

"Stone also wants further arguments on how Florida law defines compensation and salary.  Stone noted that one law makes supplemental compensation illegal to elected officials, while the law that created the Florida Retirement System says that retirement contributions are not considered supplemental compensation under the law.  Stone said he doesn't find it 'reasonable' the legislature would've created the authorization for the retirment programs while also making contributions to them illegal"

Right.  (Imagine that I am saying that, a reaction to just that seminal quote above from Judge Stone's order,  really, really s-l-o-w-l-y)........   R-I-G-H-T.

read the order for yourself, below.

Grizzly Bear Trap Part IV: Clerk's Motion to Quash is Dismissed; Lawsuit Against Commissioners is Dismissed

Saying something is illegal after demonstrating the belief this same thing was legal by paying on it for years is a tenuous argument.  Particularly high are the stakes---because if you are "right" and the "thing" you were doing was, in fact, illegal---well then you have to explain why you did it all those years.  On the other hand, if the "thing" you used to do but suddenly, unilaterally stopped doing is deemed to be legal---well oops you are facing a different problem because such action might be deemed to be acting ultra vires.

Either way it's bad.  Bad if you're right, bad if you're wrong.  It's a two-way, unescapable grizzly bear trap.  I describe my rationale for this in depth here , here,  and here. 

That's the position I believe Escambia County Clerk Pam Childers has been in for a while now.  I harbor no ill-will toward her--I'm just perplexed by the way this has played out and the WHY it went down like it did.  

It didn't have to happen this way.

And I'm particularly concerned about what has transpired with a bonafide, Board Approved contract that the clerk unilaterally terminated by failure to pay on it.  That is a dangerous, slippery slope precedent that-- if allowed to happen unchecked-- has great potential for abuse.  Thus my continuing interest in this matter.  (and no, I don't take the 401a plan).

We each have to stay in our lanes as constitutional officers, that's my take.  

So yesterday two rulings came down in the court case regarding the county and the clerk.

Both rulings went the county's way.

The Clerk's motion to quash was dismissed, and the lawsuit against Commissioners Barry, May, and Bender was also dismissed.

We will have to see what comes next, what the next ruling is.  

But for today, anyway, things went our way.

I Normally Don't Do it, But......

.....This time I did.  I Picked up the phone and made the call.

Yes, I normally do not return calls where the citizen is irate and yells at my aide(s) or is rude, threatening, or just plain onry in their call to our office.  I especially avoid the ones where they make a threat or an ultimatum.

Because, what is the point, right?  Obviously this individual--whoever they may be at any given time--has made up their mind and have picked up a phone and taken the time to call my office to enunciate the fact that:

1.) If I vote for "X"--they will never vote for me again or 2.) They will never vote for me again because of some "thing" I purportedly did or 3.) they think I am somehow engaged in criminal conduct or 4.) all of the above.

These are not every day occurrences, but these sorts of calls do come in from time to time.

And I normally don't do it, I normally don't call back--especially when they explicitly tell my staff "not to bother having Bergosh call back."  But this time, along with the "don't bother having him call back" --the individual actually left a name and number.  So I did call back--and I am glad I did.  I actually had a productive conversation with the original caller and one of this individual's relatives who listened in.

The setup was this:  I am apparently not worthy of continued support because of the state retirment plan others on the board take.  And the article in the paper was infuriating to this constituent!

So, again, I called her and asked her about it.

"Look, I read that article in the PNJ, and it made me so angry!  It's not right that the commissioners are taking an extra $40,000.00 per year over and above their $85,000.00 salary for a part-time job--and I am mad!"  She continued..."Look, I know you don't take that plan, but you voted for it and so I am not happy about that either!"

I listened to her speak, and there is no doubt she was angry and worked up.  So I listened, and then we had a back and forth dialogue and she listened as well.

"I understand you are angry, but that was not a news piece you read--it was an opinion piece from the local cartoonist, Andy Marlette.  And, it is full of lies, half-truths, and falsehoods." I stated flatly. 

"Look, that guy is constantly taking shots at me, he has for the last 16 years.  Cartoons, hit pieces, and flat out lies, slander, and libel about me and other elected conservatives.  He is a sack of garbage, a liar, a misogynist,  a racist, and he is not anyone who is trustworthy in any sense of the word" I explained to her.  "I'm astonished you even take the paper locally--it is so bad, they LIE so OFTEN and so many I know have cancelled their subscriptions!" I stated.  Then I asked her how, if I was such an horrible dishonest politician as Marlette insinuates falsely--"how in the world could I not have been ever accused of doing anything unethical, illegal, or immoral in the last 16 years as an elected official where my entire life exists under a microscope for everyone to examine?"

We talked for a while, and I asked her if she has seen the toxic garbage lies this same individual, racist liberal activist and conservative Christian-hater ---Andy Marlette---  puts out about our Governor, Ron DeSantis, and our Senator(s) Marco Rubio and Rick Scott.  "Yes, I have" she conceded.  "And yet you still support those elected officials though?"  At which point she expressed support for these men while also volunteering the fact that she is/was a Democrat that "votes for the person, not the party, and at the last election I voted straight Republican."  

Then I asked a rhetorical.  "So, you support those Republicans, and do not believe what the PNJ says about them---but the Republican Commissioners---you believe what the cartoonist says about us?

Then we talked at length about the FRS, the 401(a) the differences and the costs for both plans.  I went through the plans in meticulous detail, including the fact that these plans have been in existance in the county for 25 years, the commissioners did not "invent" these plans, and I have not voted for these plans.

We talked about all the employees and elected officials who have expensive pensions, the employees who retire with 100% of their pay for life, and also the exorbitant costs associated with the pension plan for constitutional officers like, for instance, clerk of the court Pam Childers--who's FRS pension costs to the taxpayer are nearly DOUBLE every year (nearly $80K) what the county commissioner's plans

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

County Files Complaint for Writ of Mandamus in the Circuit Court

Late Friday afternoon Escambia County, through our attorney Troy Rafferty of Pensacola's Levin Papantonio Rafferty Law Firm, filed a complaint in the circuit court on the county's behalf.  The purpose of the Complaint for Writ of Mandamus is/was to compel Clerk of the Court and Comptroller Pam Childers to once again resume payment of the 401(a) payments she has now unilaterally withheld as of the beginning of this year.

The complaint is very straightforward and makes the case very succinctly in a 30 page filing.

We will see what happens next.

Read the complaint here.

Clerk Directs Staff to End Retirement Account Payments for Three of Five Commissioners

Attorney Troy Rafferty's Letter to the Clerk's Attorney on Behalf of the Board: BOOM!

 Here's the portion of a letter attorney Troy Rafferty sent out yesterday afternoon to the Clerk's office regarding the county's 401(a) plan:  It's a scorcher.

Clerk's Attorney Provides Memo and Opinion about County's 401(a) Plan

The Escambia County Clerk of the Court Pam Childers sent BCC Chairman the below letter and memo from her attorney Cody Leigh--detailing thier continuing position that the county's 401(a) plan is illegal.  Although they don't say it is illegal in the memos--instead there is the new code word "propriety" thrown into the mix. But they both said it was "illegal" in a recent BCC meeting, but not in these memos..... Look--it's either legal or it isn't.  Why mince words?  Why split hairs to create expensive haircuts?  Why the intentional muddying of the descriptive language they use?   

JUST CALL IT ILLEGAL IF YOU REALLY BELIEVE IT TO BE!  

Gamesmanship not necessary.

Interestingly, the letter and memo appear to be some sort of an ultimatum--as an immediate response to his memo is being requested--with a 30 day deadline at which point it appears the clerk's office will withhold all payments under this contract.  That's the way I read it.  It's somewhat threatening.  It's unnecessary.

I don't take this plan, but I have been outspoken about the way our contract with ICMA is being constructively terminated by the Clerk.  I believe it is an improper and inappropriate usurping of issues under the BCC's purview and area of responsibility.  There is and was a much cleaner, less-aggressive way to address this issue.  Heck, I've even publicly stated and agreed that the rate of return appears excessive.  But why battle us?  The public spectacle of unilaterally dictating that this plan could not continue was uncalled for, is/was inappropriate, and appears to be one constitutional officer meddling in the affairs of another--inappropriately.  It also appears to me to be a feckless attempt at pandering to the local daily print press--- who already display an extreme dislike for most if not all duly elected county commissioners--- and who also harbor complete, utter disdain and disapproval for ANY retirment plan and or monetary compensation for such elected officials...  So why throw them red meat if the question at issue is not settled?  It is puzzling, this conflict which erupted out of nowhere.

Some questions for Cody and the Clerk:

1.) If the hang up is about the rate of return the county's 401(a) provides to commissioners who take this plan--then what rate of return is acceptable to you?  (The overall cost to the taxpayer is the same with ICMA or with the FRS investment or pension plan---it is just that the overhead from FRS eats up the balance of the county's contribution if these commissioners had chosen one of the FRS offerings and not the 401(a).)

2.)  Why, suddenly, did this 401(a)--which your office had been paying commissioner Bender on for three years--become such a source of consternation to you and your office?  If you were paying on it and the returns were greater than the FRS returns in 2018, 2019, and 2020---what happened in 2021 to lead you to exclaim at our meeting that this was "Illegal!"  (If it is illegal now returning 51%--wasn't it also illegal in 2019 paying 44%?)  If the answer, in your opinion, is "Yes"--then why did you and the clerk approve these expenditures before, in 2018, 2019, and 2020--- and why did your office tell Com. Bender this was perfectly fine when he called you all about the high rate of return over a year ago?  i.e.  how can it be legal then, in your opinion, but suddenly illegal now?)

3.)  If the full board of county commissioners determine that setting a similar rate of return for commissioners as what is being given to senior level commission staffers is appropriate (which would be far less than the current rate of return for commissioners is and that would result in a savings to taxpayers compared to what county contributions toward either the FRS pesnion or investment plan would cost)--would your opinion change?

4.)  If the County's attorneys are right and this program is legal--then is/was the act of unilaterally ceasing payments on this contract by the clerk an act that was ultra vires? Inappropriate?

5.) If a judge rules the plan is legal--will you make a public apology to the board upon your office's return of the monies withheld inappropriately from three commissioners?

6.) Why exclaim it is illegal, then walk that back?

7.)  Why the stubborn resistance to Alison (and my) offer to work together to seek, jointly, an opinion from the Attorney General of Florida about the legality of this plan?

See the memos, below:

Big Name Law Firm to Provide Pro Bono Legal Representation on County's 401(a) Issue

 I am of the opinion that the county ought to be able to sort out the issues with our 401(a) program.  I don't take the program but multiple employees and several commissioners do.

However, as we have seen from the numerous cartoons and editorials on this subject--the local print media's "crack" two-person "editorial board" have their panties in a wad over this issue.  They don't like it, damnit! is the sentiment.

Along the way, the PNJ seems to insinuate the employees and board members who take this plan are somehow acting nefariously and criminally.

The fact of the matter is the plan is legal.  And because it is, the clerk of the court had no business constructively terminating the legitimate contract the board entered into with ICMA back in early 2016.

This is my interest in this issue.  The board is the entity that contracts for service with service providers on behalf of the citizens and employees of the county, NOT the clerk.  Her function is to keep the books and pay the invoices.  If we do something illegal, she has an obligation to NOT pay the invoice.  But she has a legal obligation TO pay legal invoices.  If we allow, without any resistance, the clerk of the court to unilaterally void some contracts she "doesn't like" (after paying invoices on said contracts for nearly a decade)--that usurps our authority, resposibility, and areas under our purview.  It is a bad precedent to passively allow, so yes, although I do not take this plan I won't stand by and watch our responsibilities  be usurped inappropriately by the clerk.    

On this particular matter, the clerk has waffled back and forth between saying payments under the board's 401(a) contract are "problematic"-or they are "Improper" or "Outside the General Law" and she finally gave her honest opinion "It's ILLEGAL" last month when I pressed her.

But now she is walking that back saying she didn't mean to say that.

What??

Meanwhile, we have presented her with multiple legal opinions that show, in great detail, that the plan is a legal one, the contract is valid.  The one she used to pay, until she decided not to pay....

Still, she remains intransigent

Still, she won't honor the board's legitimate, legal contract.  She won't make the payments.  She is stuck now in a two way bear trap as I discussed in these posts here and here.

But we're trying to work with her.

Both attorney Alison Rogers (in writing, via an email) and I both offered to work jointly between entities to seek an Attorney General's Advisory Opinion.  In both instances, the clerk rejected this good will offer to get the legality question answered.  To put it a different way--the olive brance was broken in half and handed back to us.

That's alright.

Now comes word that one of the nation's leading trial lawyers from one of the nation's leading law firms will weigh in on the County's side, and work with the county to resolve this issue with the clerk on a pro bono basis.  

Hopefully this doesn't have to go to court, that's not what anyone wants.

But if it does, it looks like we will be well-represented, and very well prepared.

Then, once we ascertain the legality, which is the central issue, we can address the rate and other issues that appear to be in need of adjustment.  But step one has to be taken before step two.  See attorney Troy Rafferty's letter, below, signalling his willingness to step in and assist the county for free.

Is the Legality of the 401(a) Plan a "Grizzly Bear Trap?" Part II

 In part I,  which I posted last month, I asked this question.  Is the legality of the 401(a) plan a "Grizzly Bear Trap?"  I asked Because the Board of County Commissioners approved a contract in 2016 before I came on the board with ICMA to administer a local 401(a) plan for elected officials and senior staff members---and yet suddenly this contract was constructively voided by the clerk of the court when she and her attorney said the plan was "illegal" and began deducting monetary contributions described in this board contract as it pertains to several board members. (I don't take this plan, I have an FRS Pension plan from the School Board where I was elected in 2006)

When someone arbitrarily asserts that something is illegal--it must be backed up.  And if this opinion is flawed and such a contract is legal, it is not within anyone's purview, except the board of county commissioners as a body, to act on such a bonafide, legal  contract.

Is the 401(a) plan too generous?  Is the rate of return obscene?  These are legitimate questions and these are issues which the board can address and should address.  But, they are separate and apart for the foundational question which I asked from day 1 when this topic erupted.  Is it Legal?

The board requested and received a written opinion on July 21, 2021 from Allen Norton and Blue attorney Michael Mattimore.  His opinion, below, appears to support the position that the plan is legal and comports with statues.  His opinion was deemed attorney work product and was not releasable until tonight's vote on this matter--where the board voted 4-0 (Underhill left the meeting early) to release this opinion to counter the false narrative that this 401(a) plan is/was "illegal."  According to our county attorney and now this opinion from ANB-the plan is legal.

So why do I want to release it--when it doesn't even pertain to me and I don't take the plan?  

#1-Nobody definitively proved it was illegal--yet action was taken that unilaterally voided a contract the board voted to enter.  This is a right (BOCC contracting ability) I will guard zealously, this is within nobody else's purview but the Board of County Commissioners.  It is inappropriate for another constitutional officer to insert their view, judgment, or will on the Board's LEGAL contracts.

#2-The dishonest, unethical PNJ was going to continue to drag me into this issue and deliberatly paint me in a false light with actual malice by insinuating (via disparaging cartoons and  fake-news editorials) I am taking this 401(a) plan and I am acting unethically--even though they know (due to reports in at least one article they published) that I do not take this plan and never have. 

Read the opinion for yourself, below, now that it has been released by the board.  According to multiple expert government lawyers--the plan is legal.  So why has it been terminated unilaterally by someone who did not have the right or authority to do this?

Is Legality of 401(a) Plan a "Grizzly Bear Trap?"

 

Yesterday's board discussion about the county's 401(a) retirement plan was inartful.  And I said so multiple times.  It was a discussion that did not need to happen.  It should have been worked out between the lawyers in the background and the facts brought to us for a decision.  But nope, we had to make sausage even though we didn't need to have this discussion in public.

But it happened, nonetheless.  (Starting at 1:08:25 of this video)

Full disclosure, I do not take the 401(a) plan, I never knew it existed until two months ago, and obviously the rate of return for elected officials (over 51% for next year) is obscenely high.  These are the facts upon which we can ALL agree.  Do I believe these rates are too high?  Yes, of course I do, and I said so at the meeting.

Furthermore, the additional facts of the matter are very clear:  The county has had this plan in place for nearly 25 years (since 1997) and many current and former employees and current elected members of the board have made irrevocable elections out of the standard FRS plan to join this local plan.  This plan and the administration and rates for reimbursement to the accounts of employees and elected officials are memorialized in a contract the board approved in 2016 before I was on this board.  At the meeting yesterday, I again asked our attorney if this plan was legal, to which she replied "Yes."

Now comes the strange, artless, choppy, sloppy, and unusual stuff.  The Clerk's office put an "information item" on their portion of the agenda, stating they would unilaterally be reinterpreting portions of the board's 2016 executed contract with ICMA because they felt the "rate of payment into these accounts was too high."  They did not say, in their agenda backup, however, that they felt it was "illegal" to make these contributions.  So I asked the clerk and the clerk's attorney both point blank:  Is this illegal?  After pressing them---after wading through a lot of gibberish and gobldegook--they both finally stated at the meeting in answer to my query that yesthey believe it is "illegal."  But our attorney, again, believes otherwise.

So here's where it gets interesting and the questions come in rapid fire fashion:  

If it is indeed illegal--why has the clerk's office signed off and sent in the checks to pay these astonishingly high rates of return for the last 8 years?  If it is illegal today, was it illegal then?  Does paying from the treasury an illegal charge carry any penalty under state statutes?  Is ignorance of the law a defense?  Robert Bender made a very subdued, modest statement that resonated with me when he disclosed to us all via a statement to the clerk that he indeed sought a clerk's opinion about the plan shortly after he took office, specifically about the high rate of return and if this was legal, to which he apparently received reassurance from the clerks office that it was legal.  I mean, this must have been their opinion--otherwise the payments to Bender's account should have stopped right then and there, in early 2019.  

But no, the clerk's office continued to approve these huge payments ever since.   Apparently these queries from Bender to the clerk's office were made in writing.  (Someone should look at these).

So here's the bear trap.  If it is/was legal to pay these plans--then the clerk has NO legal authority to take action to prevent or pause payment--this is up to the BOCC to fix or adjust, our issue.  A clerk unilaterally not paying or attempting to void or reinterpret an executed contract is imporper at least-and could be that office acting ultra vires at worst-- according to our attorney.  (Yes, I asked that question yesterday, too)

On the other hand--if the clerk is right and this is in fact illegal--then why the heck have these payments been made for all these years?  How the heck could the clerk's office say yes--it is legal to Robert Bender in 2018 and continue to pay if it was illegal?  And why in the heck would it take them 3 years to finally figure out it is illegal and not simply problematic?  And if they figured out this past week, that it is/was illegal---why not just indicate that within the backup?  Why make me pry it out of the clerk's attorney like a pearl diver opening a clam?  Why not say "YES WE THINK IT'S ILLEGAL!"  Why the doublespeak about it being "problematic."  What the hell does that even mean, anyway?

Too many questions--but meanwhile we, the BOCC, have requested formal legal opinions on all these questions from an outside counsel.  The answers will be interesting to read.  Either way though, this spectacle of a discussion yesterday turned into a grizzly bear trap about to be sprung........ 

And whatever happens there with that---the BOCC will fix this issue--because It's our issue to fix.