Loading...
09/13/2004 Pension Trustees Agenda Date: 09/13/2004 Location: Council Chambers - City Hall Call to Order Approval of Minutes 08-02-2004 Pension Trustee Items 1. Accept the employees listed below into membership in the City of Clearwater's Employees' Pen ion Plan. 2. Mathew Gunther, Public Utilities Department, and Douglas L. Griffith, Police Department, be granted regular pensions under Section(s) 2.393 and 2.397 of the Employees' Pension Plan as approved by the Pension Advisory Committee. 3. Elaine Larimer, Public Utilities Department, and Diana L. Atkinson, Police Department, be allowed to vest their pensions under Section(s) 2.397 and 2.398 of the Employees' Pension Plan as approved by the Pension Advisory Committee. 4. Adopt the attached Administrative Rule Governing Forfeiture Proceedings. Other Business Adjourn f :~. Pension Trustee Cover Memorandum Trackinq Number: 785 Actual Date: 09/13/2004 Subiect / Recommendation: Accept the employees listed below into membership in the City of Clearwater's Employees' Penion Plan. Summary: Pension Elig. Name, Job Class, & Dept.jDiv. Hire Date Date Ronald Schluchter, Systems Analyst/Gas 7/12/04 7/12/04 Carl Korczak, Parks Service Technician I/Parks & Recreation7/12/04 7/12/04 Lindsey Newell, Development Review Tech. I/Development Services 7/12/04 Jaime Cuervo, Custodial Worker/General Services 7/12/04 Donald Lagroix, WWTP Operator Trainee/Public Utilities 7/12/04 7/12/04 7/12/04 7/12/04 Oriqinatinq: Human Resources Review Approval Cvndie Goudeau 08-31-2004 10:07:24 f :~. Pension Trustee Cover Memorandum Trackinq Number: 784 Actual Date: 09/13/2004 Subiect / Recommendation: Mathew Gunther, Public Utilities Department, and Douglas L. Griffith, Police Department, be granted regular pensions under Section(s) 2.393 and 2.397 of the Employees' Pension Plan as approved by the Pension Advisory Committee. Summary: Mathew Gunther, Wastewater Treatment Plant Operator A, Public Utilities Department, was employed by the City on March 12, 1979, and his pension service credit is effective on that date. His pension will be effective September 1, 2004. Based on an average salary of approximately $46,713 per year over the past five years, the formula for computing regular pensions, and Mr. Gunther's selection of the Joint & Survivor Annuity, this pension will approximate $32,629 annually. Douglas L. Griffith, Police Sergeant, Police Department, was employed by the City on January 7, 1985, and his pension service credit is effective on that date. His pension will be effective February 1, 2005. Based on an average salary of approximately $62,865 per year over the past five years, the formula for computing regular pensions, and Mr. Griffith's selection of the 100 % Joint & Survivor Annuity, this pension will approximate $34,971 annually. These pensions were approved by the Pension Advisory Committee on August 12, 2004. Section 2.393 (p) provides for normal retirement eligibility when a participant has reached age 55 and completed twenty years of credited service, has completed thirty years of credited service, or has reached age 65 and completed ten years of credited service. Section 2.393 also (p) provides for normal retirement eligibility when a participant has completed twenty years of credited service in a type of employment described as "hazardous duty" and further specifically defines service as a Police Sergeant as meeting the hazardous duty criteria. Mr. Gunther qualifies under the age 55 and 20 years of service criteria. Mr. Griffith qualifies under the hazardous duty criteria. Oriqinatinq: Human Resources Review Approval Cvndie Goudeau 08-31-2004 10: 16: 19 f :~. Pension Trustee Cover Memorandum Trackinq Number: 783 Actual Date: 09/13/2004 Subiect / Recommendation: Elaine Larimer, Public Utilities Department, and Diana L. Atkinson, Police Department, be allowed to vest their pensions under Section(s) 2.397 and 2.398 of the Employees' Pension Plan as approved by the Pension Advisory Committee. Summary: Elaine Larimer, Wastewater Treatment Plant Operator B, Public Utilities Department, was employed by the City on June 16, 1980, and began participating in the Pension Plan on that date. Ms. Larimer terminated from City employment on July 9, 2004. Diana L. Atkinson, Personnel/Payroll Technician, Police Department, was employed by the City on May 20, 1991, and began participating in the Pension Plan on that date. Ms. Atkinson terminated from City employment on July 23, 2004. The Employees' Pension Plan provides that should an employee cease to be an employee of the City of Clearwater after completing ten or more years of creditable service (pension participation), such employee shall acquire a vested interest in the retirement benefits. Vested pension payments commence on the first of the month following the month in which the employee normally would have been eligible for retirement. Section 2.393 (p) provides for normal retirement eligibility when a participant has reached age 55 and completed twenty years of credited service, has completed 30 years of credited service, or has reached age 65 and completed ten years of credited service. Ms. Larimer would have completed 20 years of service and reached age 55 on October 6, 2004. Her pension will be effective November 1, 2004. Ms. Atkinson would have completed 20 years of service and reached age 55 on May 20, 2011. Her pension will be effective June 1, 2011. These pensions were approved by the Pension Advisory Committee on August 12, 2004. Oriqinatinq: Human Resources Review Approval Cvndie Goudeau 08-31-2004 10:17:14 f :~. Pension Trustee Cover Memorandum Trackinq Number: 791 Actual Date: 09/13/2004 Subiect / Recommendation: Adopt the attached Administrative Rule Governing Forfeiture Proceedings. Summary: Under provisions of Section 2.401 of the City of Clearwater Employee's Pension Plan, the Board of Trustees has jurisdiction over the forfeiture of pension benefits should a participant be convicted of the following offenses committed prior to retirement: a. The committing, aiding or abetting of an embezzlement of public funds; b. The committing, aiding or abetting of any theft by a public officer or employee from the employer; c. Bribery in connection with the employment of a public officer or employee; d. Any felony specified in F.5. Ch. 838 (except 9838.15 and 9838.16); e. The committing of an impeachable offense; and f. The committing of any felony by a public officer or employee who willfully and with intent to defraud the public or the public agency, for which he acts or in which he is employed, of the right to receive the faithful performance of his duty as a public officer or employee, realizes or obtains, or attempts to obtain, a profit, gain, or advantage for himself or for some other person through the use or attempted use of the power, rights, privileges, duties or position of his public office or employment position. The Board of Trustees is required to hold a hearing in accordance with F. S. Ch. 120 to determine whether the benefits should be forfeited. Counsel to the Board has recommended the Board adopt the attached administrative rule in this regard. Oriqinatinq: Human Resources Review Approval Joseoh Roseto 09-07-2004 11:57:21 Cvndie Goudeau 09-10-2004 11:55:18 BOARD OF TRUSTEES CITY OF CLEARWATER EMPLOYEES' PENSION FUND ADMINISTRA TIVE RULE GOVERNING FORFEITURE PROCEEDINGS 1. Florida Statute S 112.3173 governs the forfeiture of pension benefits of public officers and employees when convicted of certain specified offenses which constitute a breach of the public trust. The statute provides that any public officer or employee who is convicted of a specified offense committed prior to retirement, or whose office or employment is terminated by reason of his or her admitted commission, aid, or abetment of a specified offense, shall forfeit all rights and benefits under any public retirement system of which he or she is a member, except for the return of his or her accumulated contributions as of the date of termination. 2. The Board shall follow the procedure outlined in Florida Statute S 112.3173 regarding the initiation of forfeiture proceedings against members convicted of specified offenses. However, the statute does not address procedures to be employed by the Board in instances where the member has been charged with a crime, and prior to conviction, has either filed an application for retirement with the Board or is retired and receiving benefits. The Board has the authority to adopt this administrative rule addressing the procedure to be followed in these circumstances. 3. When a member has filed a retirement application, and evidence has been brought to the Boards attention that the member has been charged with a specified offense, the Board shall vote at the next regularly scheduled meeting to defer acting on the retirement application until the criminal case is resolved. Should the member be convicted of a specified offense under the terms of Florida Statute 112.3173, the Board shall initiate forfeiture proceedings at that time. If the member is not convicted of a specified offense, the Board shall act on the retirement application of the member. 4. Benefits to members who have retired from employment are still subject to forfeiture if the specified offense is committed prior to retirement. The Board of Trustees shall make a determination on a case by case basis whether to initiate forfeiture proceedings based on the underlying individual circumstances of the particular case. If the retired member has been charged with a crime that constitutes a specified offense under the forfeiture statute, or charged with an offense that may fall under the catch-all provision of the forfeiture statute, and the retired member is already retired and receiving benefits, only those amounts that constitute employee contributions will continue to be paid. In this circumstance, payment of any amounts over and above the employee contribution shall be suspended pending the outcome of the criminal case and subsequent forfeiture proceeding, including any appellate proceedings. Should no forfeiture occur, the retired member shall be paid all sums withheld with interest at the Plan's assumed rate of actuarial return, and normal monthly benefits will recommence. 5. The Board of Trustees shall be represented by Plan counsel in all forfeiture proceedings. Plan Counsel shall act solely as an advisor to the Board during the hearing. The City Attorney may also choose to prosecute the forfeiture proceeding based on the May 13,2004 Page 2 circumstances of the particular case. 6. Should the Board of Trustees have reason to believe that the benefits of any member are required to be forfeited, an initial hearing shall be scheduled for the next regularly scheduled meeting of the Board to determine if probable cause exists to proceed with a forfeiture hearing. The member shall be notified in writing of the initial hearing. The member may be represented by legal counsel at the initial hearing. The initial hearing shall be informal in nature. At the initial hearing, the Board of Trustees shall review all documents that may serve as a basis for a probable cause determination. The member and/or his/her representative may make a presentation to the Board as to why no probable cause exists to proceed to a forfeiture hearing. Should the Board determine that no probable cause exists, member shall be entitled to receive or continue receiving a retirement benefit from the Fund. Upon a finding of probable cause, the Board of Trustees shall schedule a forfeiture hearing for a mutually convenient date. 7. The member shall be notified in writing of the date, time and location of the hearing. The notice shall advise the member that should they decide to appeal any decision of the Board, they will need a record of the proceedings, and that it would be their obligation to provide a Court reporter at their own expense. If the applicant is to be represented by counsel at the hearing, counsel shall file a Notice of Appearance with the Plan Administrator 30 days before the hearing. Ten days prior to the hearing, the parties shall file with the Plan Administrator copies of all documents to be offered into evidence, along with a complete witness list identifying the witness and providing a brief summary of the expected substance of the witnesses' testimony. 8. Although the hearing shall not be controlled by strict rules of evidence and procedure, the Board of Trustees should attempt to limit evidence or testimony which is hearsay, irrelevant, repetitive, or unfounded in law or fact, or not based upon the personal knowledge of the witness. Board counsel shall be responsible for administering the hearing and regulating the conduct of the parties in a judicious, fair and impartial manner. The parties and any of the trustees may raise an objection to the proposed evidence on any of the basis' listed above. The Chairperson shall rule on such matters and may request advice from Board counsel as to the propriety and admissibility of evidence presented at the hearing. The Chair's ruling shall stand unless overturned by a majority of the trustees present. 9. The parties may present witnesses and evidence on their behalf. All witnesses shall be subject to cross-examination on matters relevant to the issues, may be used to impeach adverse witnesses and may offer rebuttal evidence. Hearsay evidence may be considered provided there are guarantees of its trustworthiness and that it is more likely than not to prove the point for which it is offered than any other evidence which the proponent can procure by reasonable efforts. Written records shall be admitted as evidence so long as they are authenticated in a manner acceptable to the Chair. May 13,2004 Page 3 10. The order of presentation of the hearing shall be as follows. The prosecuting counsel, if any, followed by the member, shall each be entitled to make an opening statement. The opening statement shall be limited to a review of what each party expects the evidence to prove at the hearing. The prosecuting attorney shall then be entitled to present evidence and witnesses in support of their position as to why forfeiture is appropriate. Member will then be given the opportunity ro present his/her evidence and witnesses in support of their position as to why forfeiture is not appropriate. The trustees are entitled to ask question of the witnesses during the hearing. Each party shall then be entitled to present closing argument. 11. At the close of the hearing, the Board shall conduct deliberations. During deliberations, Board counsel shall assist the Board, upon request, concerning legal or factual matters presented to the Board. Board counsel may offer legal advice regarding proper legal standards, weight of evidence, the relationship between evidence and opinion, and other legal or factual matters as may arise during the deliberations. Board counsel shall not offer his/her opinion or conclusion regarding the ultimate issues to be determined by the Board. At the conclusion of deliberations, the Board shall vote whether to forfeit member's pension benefit. 12. Within thirty days from the hearing, the Board shall serve upon member and the prosecuting attorney a Recommended Order including findings of fact and conclusions of law. The parties shall have twenty days from the date of the Recommended Order to file written exceptions to the Recommended Order with the Plan Administrator. At the next regularly scheduled meeting of the Board, the Board shall consider the exceptions and vote to deny or accept each of the exceptions. A Final Order will then be served upon the member. The Final Order shall advise the member of their right of appeal to the District Court. 13. The following sets forth the legal standards to be applied at the forfeiture hearing. Article II, Section 8( d) of the Florida Constitution provides that any public officer or employee convicted of a felony involving a breach of public trust is subject to forfeiture of retirement benefits as provided by law. This means that the Constitutional provisions are not automatic and depend on implementing legislation. Williams v. Smith, 360 So.2d 417 (Fla. 1978). The Florida Legislature passed Section 112.3173, Florida Statutes which defines the scope of the Constitutional provision. 112.3173 provides that a public officer or employee convicted of a "specified offense" forfeits all retirement benefits except the employee's own contributions. The term "specified offense" includes embezzlement, theft, bribery, and those offenses set forth in Chapter 838, Florida Statutes, except 838.15 and 838.16. Specified offense also includes any felony in which the employee "willfully and with the intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is May 13,2004 Page 4 employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains or attempts to realize or obtain, a profit gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position." This catch-all provision, quoted above, has been interpreted by the courts in a broad fashion. In Newmans v. State, Division of Retirement, 701 So.2d 573 (Fla. 1st DCA 1997), the court considered the case of a sheriff convicted of obstruction of justice. The Court of Appeals found that the conviction fell within the catch-all provision of 112.3173. The motivating reason for the decision was the underlying offense which was obstructed; that is, protection of a drug smuggling operation from which the sheriff received illegal profits. In Jacobo v. Board of Trustees of the Miami Police, 788 So.2d 362 (Fla 3rd DCA 2001), the Court held that it was a breach of the public trust to violate any standard of ethical conduct set forth in Chapter 112, Florida Statutes. The underlying crime which led to the forfeiture in that case was official misconduct, which is not an enumerated specified offense. This conclusion is bolstered by the general definition given to breach of public trust. The Constitution of Florida requires that any person convicted of a breach of public trust is liable to the State for any illegal profits obtained. St. John Medical Plans, Inc. v. Gutman, 721 So.2d 717 (Fla. 1998). In criminal cases involving police officers, courts have been willing to depart from sentencing guidelines where police officers misused their positions for personal gain. Spain v. State, 475 So.2d 944(Fla. 4th DCA 1985) and Cason v. State, 508 So.2d 448 (Fla. 3d DCA 1987). The Board of Trustee's decision must be based upon "clear and convincing evidence." To be clear and convincing, the evidence must be credible and of such weight that you hold a firm belief or conviction, without hesitancy, as to the truth of an allegation. Inquiry Concerning a Judge, re: Davey, 645 So.2d 398 (Fla. 1994). 14. Any of the time limitations contained in this Rule may be extended by the Chair, upon a showing of good cause. 15. The Board of Trustees reserves the right to amend this Administrative Rule from time to time as it deems appropriate. The Board shall retain the right to exercise its discretion in interpreting this Rule and in resolving any disputes that may arise hereunder. This rule was considered by the Board of Trustees at a public hearing, following proper notice, on , 2004. The Administrative Rule was adopted by vote of the Trustees on , 2004."