Writ of Mandamus Filed by Escambia County against Clerk Pam Childers in Circuit Court

As the board authorized her to do, County Attorney Alison Rogers' office has now moved forward with an action in circuit court to compel the timely completion of a duly authorized payment by the Board of County Commissioners ------which the clerk refused to honor and pay.  It's been almost 5 months now since the board voted to make the payment and also voted that this payment served a bonafide public interest.

Late yeserday afternoon the board was advised that the below complaint had now been filed, and the board was provided the document.

It will be interesting to see which Judge takes this.........and it never should have come to this.

Rick Outzen and I discussed this issue at length recently when he invited me to appear on his morning radio show.  Check out that podcast, here.

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.

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:

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?

Escambia County Clerk returns Nearly $1,000,000.00 to BCC!

Escambia County Clerk of the Court Pam Childers returned $914,107.81 to the BCC yesterday.

Escambia County Clerk and Comptroller Pam Childers returned $914,107.81 dollars to the BCC yesterday--excess revenue that by statute must be returned at the end of each fiscal year by her office.  It is important to note that although the board does frequently receive money back from the constitutional offices at the end of October yearly (Clerk's office returned $723,000.00 last year) the exact amount of this revenue was neither known nor anticipated by the board prior to the BCC finalizing the FY2018 budget last month so far as I understand this situation...

In a letter that accompanied the check (above), Mrs. Childers described the revenue, explaining that it came from two sources--Finance and Official Records.  From the letter:

"The first is the savings of the finance budget, and the second is the effect of additional revenues generated in the official records function..the savings in the Finance department totals $429,042..the Official Records department has excess funds of $485,065 which is predominately the impact of an upward turn in the economy."

The board, in conjunction with recommendations from the Administrator and the staff, will ultimately decide where these excess funds will be spent.