Latest Briefs Filed on 401(a) Case: Compensation is Salary--Retirement Benefits are NOT Salary

Three briefs were filed last Friday in the circuit court related to the county's suit against the clerk of the court for her refusal to fund the lawful retirement accounts of three sitting commissioners.

Two of the briefs (here and here) were filed by the clerk's attorneys and essentially argue that the retirement contributions are salary--and thus the higher rate of return for the local plan amounts to an unlawful increase in commissioners' "salaries".

The county's brief goes into great detail in demonstrating that the retirement benefits of the local plan are not salary under Florida law.  Further, the county brief describes why the clerk's insistence on focusing on the "57%" figure is a political argument not relevant to the issue before the court.  From the county's brief:

"The County's opinion is that the Clerk's injection of "57 percent" is more about politics and policy choices than the actual legal issues. The fact is that, until June 2021, the County, the Clerk, and ICMA all agreed that the contribution amount toward the Local Plan would be equal to whatever the FRS's charge was in a given year. This is why the County is correct to say that the Local Plan does not cost the taxpayer a penny more than the FRS. The amount the County spends on the Local Plan is exactly the same.      The Clerk's injection of this figure into this motion (and her statements to the press) just shows that what the Clerk really seeks is to make policy: to overturn a legislative choice made by the Board of County Commissioners which she finds personally objectionable."

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'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 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.