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.

County Attorney's Response to the Clerk's Non-Payment of a BCC Approved Expenditure.

This item should have been paid three months ago....Why wasn't it?

I wrote extensively last week about what I felt was an unnecessary, unprofessional withholding of payment by the clerk's office of a duly approved and voted-upon item by the BCC.  The County Attorney has now sent the below response to the Clerk and her attorney to address this failure to make the payment.  Hopefully, payment will be made without ANY further delay, as it should have all along....From the email:

"First, let me express how extremely disappointed I am that you did not extend the courtesy at the earliest opportunity to advise of your concerns with this expenditure relating to Mr. Selover’s attorney’s fees and administrative fine.  As you know, the Board voted to authorize this expenditure at its October 6, 2022 meeting. Since then, more than three months have passed, and until now, you have not contacted me regarding this matter.

 Pursuant to Fla. Stat. §125.17, the Clerk shall make payments as directed by the Board of County Commissioners.  The Board is the elected legislative body that determines what expenses serve a public purpose and, unless illegal, those payments shall be timely made.  Under home rule authority, it is not necessary to demonstrate specific statutory authorization to make payment; instead, upon legislative authorization, payment shall be made unless illegal.  While you have provided statutory authority for payment of public officer and employee attorney’s fees, that authority is clearly not preemptive or exhaustive as illustrated by the common law theories regarding those expenses.

 There is no authority of which I am aware finding the payment of attorney’s fees or a fine illegal or inappropriate.  To the contrary, there is a strong public policy in favor of financially supporting public sector employees who become engaged in legal jeopardy arising out of their public sector employment.  To not defend such employees would discourage public employment as such employees are often asked to perform duties that are subject to legal challenges for various reasons.

 Mr. Selover’s attorney’s fees and the fine at issue were associated with an administrative action, rather than a criminal proceeding, that was directly related to his employment with the County.  The settlement agreement made no finding of grossly negligent conduct, bad faith, malicious purpose, or willful and wanton disregard of human safety.  Moreover, the settlement was entered into for the purpose of effecting an expeditious resolution rather than incurring the costs of a lengthy proceeding. 

To require a public employee or former employee to undergo an evidentiary hearing to avoid a fine instead of entering into a settlement agreement as a condition for authorizing payment is contrary to the public policy and would, undoubtedly, result in unnecessary expense.  It is also relevant to note, on occasion, the County must pay fines or penalties assessed against the County, whether arising out of the actions of its employees or otherwise.  Thus, assuming proper legislative action, it stands to reason that public funds may be used to pay fines assessed against a public employee when those fines arose out of his public employment.

 Additionally, although you have not communicated any concerns, it is my understanding the Clerk has not yet processed payment of Kate Kenney’s attorney’s fees, which the Board voted to authorize on  October 20, 2022.  I assume the issue of expenditures for fees or other expenses incurred by Public Safety employees was the subject of Ms. Childers discussion with the JLAC auditors after our meeting on Friday afternoon.  If so, I point out that only the elected legislative body can make a legislative determination as to what serves a public purpose.  That said, if the auditors provided specific advice on this issue then it should be shared between our agencies in the unified effort to perform and accomplish the public’s business. 

 Thus, I respectfully request the payment authorized by the Board on October 6 be processed as expeditiously as possible."

 

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.

Case between Escambia County Commissioners and Clerk Pam Childers is transferred Once Again....

Recently the board of county commissioners of Escambia County filed a complaint in the circuit court for a writ of mandamus against the clerk of the court Pam Childers.  That complaint was moved to a judge in Okaloosa county on Tuesday.  That particular judge quickly recused.  Now, today, comes word that the case was reassigned to a different Circuit Court Judge in Okaloosa County.  We shall see what comes of this.  Some with whom I have spoken predict that all judges in the first circuit will recuse and this complaint will land in the 14th circuit, in Panama City.

But we will see what happens in the next several days......

 

Escambia Circuit Judges Out of Ruling on BCC Complaint Against Pam Childers

This order, below, was issued by Chief Judge John Miller this afternoon.  The complaint filed against Clerk of the Court Pam Childers on behalf of the BCC has now officially been transferred to Okaloosa County.

The blanket recusal anticipated in the order necessitated this action.

I'm told the Judge in Okaloosa County to whom this was transferred has now recused as well.  Already.

Some observers believe this will eventually have to be sent over to the 14th Circuit in Panama City.  We will see what happens.

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.

Florida Auditor General's Office to Commence Operational Audit of Escambia's TDT Funds Beginning Today

Later this morning staffs from the County and the Clerk of the Court's office will "kick-off" the process for the conducting of an operational audit on the county's use of Tourist Development Tax dollars from October of 2020 through December of 2021.  This audit is coming via the Joint Legislative Audit Committee at the specific request of the Escambia Tourist Development Council.  

The county will facilitate the auditors with whatever information they require to do this work, to include office space, parking, network connections, information and files.  The Clerk's office, I assume, will do likewise.

For my part, as a brand new member (as of last Thursday) of the Escambia Tourist Develoment Council------ I welcome the audit and any findings which will be helpful in our local administration of these important funds for the purposes allowed and according to statutory limitatations and stipulations/conditions. 

The estimated time for completion of the field work will be 4-5 months--with an initial, preliminary report to come sometime in late spring or early summer.  See the engagement letter, below.

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

Retirement Compensation

I received a somewhat cynical, sardonic, and accusatory email late yesterday evening on everybody's favorite topic: the County's 401(a) program.  Here, below, is the email I received from this person with whom I am acquainted.  My response to his email follows below.....

"Jeff,

            The actions of you and the rest of the BOCC over the previous 12 months take me back to the W.D. Childers days. It’s unfortunate that our elected officials tend to lose sight of what their duties and responsibilities are as it relates to supporting their constituents and overall needs of the County. Of course the latest debacle is over Commissioners retirement compensation as it relates to the County’s contribution and subsequent payout. It’s apparent that the Board feels their duties and responsibilities are more important and hazardous than our Public Safety employees. It’s evident the retirement language as it relates to the Board and upper management is not crystal clear and without ambiguity. Knowing this, why doesn’t the Board simply accept a rate that is more reasonable and commensurate with the part-time job they currently hold?  Doing the right thing these days has become the exception rather than the norm – morals and ethics have become words of the past.

            I would hope the BOCC will regain their senses and remember who they actually serve and support. If the Board feels they are entitled to this rate of retirement, then the military retirees have been severely under compensated.

            The typical County employee receives a retirement contribution rate of less than 13%, while the Board feels their rate should be greater than 50%. Although I am not confident, I am hopeful the voters remember this compensation grab especially if additional County funds are expended via a law suit to assist the Board in obtaining this ridiculous compensation package.

XXXX"

My response---below:

XXXX,

Thanks for the frank and candid opinion you’ve provided below.  Thanks also for your military service, which I respect and appreciate strongly—as I grew up in a military family with a dad that did 33 years in the Navy, a brother who is a retired Marine, and two of my children who have now served or are serving in the US Military.  Knowing what I know about military retirements—I do believe they are deserved and very generous.  However—the public sector and the state and some local Florida governments offer some programs such as a deferred retirement (DROP) plan as well as pensions for many employees and classes of employees that are legal, appropriate, and MUCH more generous than a military pension.

This all said--  I must strongly disagree with some of the assumptions you have mentioned in your below email which no doubt have been generated via media coverage of this debacle that has been one-sided, incomplete, and downright dishonest. 

So before you flippantly relegate me and my professional reputation to the rubbish heap—I certainly hope you will hear me out, below, on what the realities are surrounding the 401(a) plan. 

First off—a couple of points of note worth consideration.  

Number 1—WD Childers was a dishonest, criminal politician who was eventually indicted, tried, and convicted for his criminal behavior.  He spent time in jail. Years.  Deservedly.

Conversely-I have spent 15 years in local elected office, living under a microscope, and have not ever once even been accused of doing anything unethical, immoral, or-----illegal.  It’s because I follow rules, do my job, and am a “Boy Scout” that plays it straight.

Number 2 is I have never taken one dime from the taxpayers, not one red cent, that was not afforded to me as a salary, benefit, or emolument of my position enumerated in the constitution of Florida and/or local ordinance.

Number 3 is this: I do not take the 401(a) plan.  I am in the standard Florida Retirement System (FRS) pension plan, just like teachers, deputy sheriffs, firemen, and other county employees---which is a formulaic program that calculates an employee’s salary average and length of service to determine a monthly stipend for the elected official-- when such an official reaches retirement age.  For me, that will be when I turn 62.

(It is worth mentioning here that if the board decided to voluntarily reduce the return rate on this 401(a) plan by even as little as 1% for the three members who take it Bender, Barry, and May-----it would save taxpayers’ dollars when juxtaposed with the costs of other elected officials like me who are stuck in FRS with their overhead which is obscene!)

Number 4 is this:  The 401(a) plan at issue----complete with these concomitant payments with higher levels of interest rate returns for some senior managers and those elected officials that have chosen this plan----has been established in the County since 1997 and paid in full by our current clerk and the former clerk, Ernie Lee Magaha. These plans are ubiquitous around the state—in counties, cities and other municipalities.  This is not something Escambia just cooked-up one day out of the clear blue sky for self-enrichment—regardless of what the liberal PNJ and their cartoonist espouse.

Sadly—the current clerk’s recent and unilateral decision to withhold funding and constructively void this BCC contract appears to be a political one, and one that does not stand up to the scrutiny of legal

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:

Are We in Junior High School Again?

Using hearsay to create a strawman:  Are we back in Junior High School Again?

Last evening (after I went to bed) an email was sent to commissioners apparently leveling some accusations at three of us.  It was hearsay that appears to have been put into an email in order to create a record which, in turn, will no doubt make its way on to various chat sites later this morning...

But hearsay is just that.  Unreliable, unverified, unsubstantiated statements that rightfully elicit doubt.  That's why when judges instruct juries, they give them a primer on hearsay--how it is not to be considered except in very rare, exceptionally unusual circumstances.  (This hearsay at issue doesn't rise to this level)

Often, as I suspect will be the case here in this instance, this sort of hearsay is used to create a strawman, which is then subsequently used to attack the purported subject of the hearsay.  See how that works?

Certain media outlets have perfected and vaulted the informal fallacy of the "straw man" into an artform.  Local facebook chat sites and a dozen or so commenters also revel in this misinformation.

So this latest one, this email from 9:00 last night, suggests I said something disparaging about the Clerk of the Courts.  This is not true, I deny this fully, categorically.   it's a lie.  It's hearsay.  

The genesis for this hearsay email (sent out 4 full days after the meeting, no less) was a discussion on the 401(a) plan at last Thursday's meeting.  FULL DISCLOSURE:  I do not take this 401(a) plan, I have not signed on to this plan, it does not impact my FRS account at all.  I was vested in the FRS pension plan at the end of 2011 due to my service on the school board, before the FRS changed vesting timelines to 8 years after 2011, and before anyone else currently on the BCC Dais held any elected office.  So it's not about me, that's number one.

Number two is this:  The team on that dais, the five of us, the deciders, the BCC--we had already--- as a team ----talked through the issue and decided obtaining a written legal memorandum before proceeding was the way we were going to go.  Our debate on this topic was over, it ended when commissioner Barry pulled the motion and we moved forward in the agenda.

ONLY THEN did the clerk speak up.  After the debate had ended.  After the angst, the debate, and all discussion.  After the smoke cleared.  It was over.

And by the time she did speak, anything she added was superfluous to the discussion, anything she felt like saying was already a MOOT POINT, as again, the leadership team, the BCC had already as a group decided on a course of action.

Chairman Bender was being congenial in allowing her to be recognized after the issue had passed, in a very gracious gesture.  But she is the clerk, she is not and was not a decider on this issue.  If she disagrees with the attorney's opinion, she as clerk could seek her own opinion.  If the board votes for something for which she has a disagreement--she has certain methods at her disposal with which she can respond.

But chiming in after an agenda item was dropped and after no vote was taken and AFTER a leadership team decision was made....that WAS completely unnecessary.