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12/14/1992 TRUSTEES OF THE EMPLOYEES' PENSION FUND MEETING December 14, 1992 The City Commission, meeting as the Board of Trustees of the Employees Pension Fund, met in regular session at City Hall, Monday, December 14, 1992 at 1:05 P.M., with the following members present: Rita Garvey Chairperson Richard Fitzgerald Trustee Sue Berfield Trustee Arthur X. Deegan, II Trustee Also Present were: Michael J. Wright City Manager Milton A. Galbraith, Jr. City Attorney Cynthia E. Goudeau City Clerk ITEM #2 - Minutes: Trustee Fitzgerald moved to approve the minutes of the November 30, 1992, meeting. The motion was duly seconded and carried unanimously. ITEM #3 - Request for Acceptance into Membership: The City Manager presented the recommendation of the Pension Advisory Committee to approve membership for the employee(s) listed below: a) Ann Scheffer b) David Fletcher c) Stephanie Stefanelli d) Louis Corona II e) Margo K. Gustavson f) Daniel W. Slaughter g) Derek D. Ayers h) Donald L. Welch, Sr. Trustee Berfield moved to accept the recommendation of the Pension Advisory Committee. The motion was duly seconded and carried unanimously. ITEM #4 - Requests for Pension: a) Shirley Mobley The City Manager presented the recommendation of the Pension Advisory Committee that Shirley Mobley be granted a job-connected disability pension under Section 26.35 of the Employees' Pension Plan. Ms. Mobley was employed on January 9, 1970. She began participating in the Pension Plan on May 29, 1978, when her position was converted to full-time status. She has a back problem which resulted in her application for a job-connected disability pension. Ms. Mobley submitted letters from Dr. Cynthia Huffman (dated 8/3/92), Dr. James Rivenbark (dated 7/15/92) and Dr. David Seales (dated 6/17/92) in support of her request. Her disability pension was approved by the PAC at its October 21, 1992 meeting. Based on an average salary of approximately $19,175 over the past five years and the 75% minimum disability benefit, Ms. Mobley's pension will approximate $14,382 annually. Charts from Finance which take into consideration mortality rates and age reflect the "present value cost of financing" this pension will be approximately $170,401. On November 2, 1992, the Trustees remanded this request to the PAC pending receipt of a legal opinion as to whether or not under the ADA and the City's Pension Plan the City could make reasonable accommodations for an employee and place that employee in another position. An opinion was received from the firm of Thompson, Sizemore and Gonzalez, P.A., indicating the City could make an accommodation for an employee but the employee would not have to accept it. In addition, an employee is entitled to a disability pension if in the opinion of the PAC that employee cannot perform the duties of his/her job. On December 2, 1992, the PAC reviewed this matter and the legal opinion received. At the conclusion of its review, the Committee, by motion duly made and seconded, again approved a job-connected disability pension for Shirley Mobley. In response to a question, H. M. Laursen, Human Resources Director, indicated Ms. Mobley was not receptive to an alternate job assignment. Trustee Fitzgerald moved to grant a job-connected disability pension to Shirley Mobley. The motion was duly seconded and carried unanimously. b) Arthur Carpentieri The City Manager presented the recommendation of the Pension Advisory Committee that Arthur Carpentieri be granted a job-connected disability pension under Section 26.35 of the Employees' Pension Plan. Arthur Carpentieri was employed on October 16, 1963 and began participating in the Pension Plan on that date. In October, 1991, Mr. Carpentieri applied for a regular pension based on 28 years of service. With his application for pension, he exercised his option to extend his retirement date by the use of vacation and one-half of his accumulated sick leave. That request was approved by the PAC and the Trustees, resulting in a pension benefit of 70% (28 yrs. x 2 1/5 %) of his last five years' average salary of $32,917 annually or approximately $23,042 per year. While using his vacation benefits and prior to this extended retirement date, Mr. Carpentieri suffered a heart attack. In January, 1992, Mr. Ed Hooper, President of the IAFF, appeared before the PAC as a representative of Mr. Carpentieri to ask that the regular pension be changed to a job- connected disability pension based on provisions of Chapter 112, Florida Statutes, which provides that disabilities due to heart disease, hypertension or tuberculosis are presumed to be job-related for firefighters. Mr. Carpentieri has submitted letters from Dr. Marshal DeSantis (dated 2/13/92) and Dr. Akshay Desai (dated 2/10/92) in support of his request for a job-connected disability pension. The PAC approved his request to change to a job-connected disability pension at its meeting on September 16, 1992. On September 28, 1992, the Trustees deferred the item pending receipt of a legal opinion as to the applicability of the Firefighter's line-of-duty injury presumption. Upon receipt and review of a legal opinion from the firm of Thompson, Sizemore & Gonzalez, P.A., stating the presumption does not apply, the Trustees remanded the issue to the PAC. On December 2, 1992, the PAC moved that this matter be remanded to the Trustees indicating the PAC approved the disability pension as job-connected under the presumption based on the fact Mr. Carpentieri was an active employee using available benefits. Based on an average salary of approximately $32,917 over the past five years and the 75% minimum disability benefit, Mr. Carpentieri's pension will approximate $24,688 annually. Charts from Finance which take into consideration mortality rates and age reflect the "present value cost of financing" this pension will be approximately $221,777. This situation, while seemingly incidental in terms of cost, raises a major issue which may have considerable cost impact to the Pension Plan in the future. The issue is whether a firefighter has to be incapacitated while on active duty to have the "presumption law" apply. The employee in this case had retired from active duty and selected an option to remain on the payroll through the use of accrued vacation and sick leave benefits. During the time of use of the vacation portion of such extended benefits, he suffered a heart attack. Whether a firefighter who retires can utilize the "presumption law" after his/her last active workday because he/she suffers a heart attack during use of a retirement benefit which allows an extended use of vacation and/or sick leave materially may impact costs of the Pension Plan. The issue may possibly be raised even after a formal retirement date (i.e., a former firefighter who suffers a heart or lung disability months after a formal retirement has occurred). Based on the October 8, 1992, legal opinion of Deborah Crumbley of the firm of Thompson, Sizemore & Gonzalez that " ... it would be our opinion that the presumption should not be applied to retired firefighters ...," it is staff's recommendation the PAC's action be rejected and Mr. Carpentieri's pension remain as a years-of-service retirement. If the Trustees accept staff's recommendation, it is likely a lawsuit will result on behalf of Mr. Carpentieri and the International Association of Firefighters. Mr. Laursen emphasized that if the Trustees accept staff's recommendation not to approve this request, it will likely result in a lawsuit. Ed Hooper, President of International Association of Firefighters (IAFF), stated he was representing Mr. Carpentieri as Mr. Carpentieri is medically unable to be at the meeting. He stated the case upon which Ms. Crumbley based her opinion was irrelevant. He further indicated the state presumption has been in place since 1979 and that a firefighter's lifespan is decreased by five to ten years due to the stress of the job. He stated, based on current contracts, employees can no longer extend their retirement date as allowed for Mr. Carpentieri and that this would not be a precedent setting case. He stated Mr. Carpentieri was still employed on vacation and not on extended sickleave when his heart attack occurred. He reported Mr. Carpentieri is on chemotherapy and radiation treatment for inoperable cancer. He requested the Trustees accept the PAC's recommendation. The City Manager indicated that while he agreed that this particular case would not have significant dollar impact, he did feel the decision would be precedent setting. He stated he wished to make a point that this was not directed at the individual. He stated Mr. Carpentieri, while still on the payroll, was no longer an active firefighter. He emphasized that firefighters can be on the payroll for 18 months after their actual separation from the City. In response to questions, it was indicated Mr. Carpentieri's termination date was August 31, 1992 but that his last day of active duty was October 31, 1991. His heart attack occurred in November of 1991, 17 days after his last active date. In response to a question, it was indicated that normally, vacation leave is used prior to the extended sickleave and that the maximum vacation an individual could have would be roughly 2 months. Mr. Laursen also indicated accrued vacation is taken first as, if it is not used by the first of a year, it is lost, whereas sickleave continues to accrue while on the payroll. It was also indicated that if the extended leave spans the first of the year, additional vacation is accrued. Mr. Hooper indicated they have not threatened a lawsuit and the crux of the argument is that Mr. Carpentieri complied with the City's procedures and he is still a certified firefighter. In response to a question, it was indicated an employee can resign from a position and return to work within 6 months but that once a choice regarding option 1 or 2 for retirement is made, that decision is irrevocable. Trustee Fitzgerald moved to disapprove the job-connected disability pension for Arthur Carpentieri. The motion was duly seconded. It was stated the facts are not in dispute and it was questioned whether or not there was a way to get a declaratory judgment from the court. The City Attorney indicated that in order to get a declaratory judgment, there has to be an adversary situation, at least on paper. It was emphasized that a resolution is being sought and the Trustees' decision is not against Mr. Carpentieri but rather a concern for future requests. In response to a question, the City Attorney indicated this would be a precedent if another case should arise where a firefighter has finished their last active day of work and during using the extended sickleave or vacation, suffers a heart attack, even if it is a year or more after the active date. Upon the vote being taken, the motion carried unanimously. c) Caleb Winston The City Manager presented the recommendation of the Pension Advisory Committee that Caleb Winston be granted a job-connected disability pension under Section 26.35 of the Employees' Pension Plan. Caleb Winston was employed on November 23, 1981, as a permanent part-time Custodial Worker. He began participating in the Pension Plan on August 6, 1984, the date of his promotion to full-time status as a Maintenance Worker I. He has three herniated discs which resulted in his application for a job-connected disability pension. Mr. Winston submitted letters from Dr. Joseph M. Sena (dated 6/29/92) and Dr. Rosarioi Musella (dated 5/15/92 and 6/15/92) in support of his request. Mr. Winston's disability pension was approved by the PAC at its October 21, 1992 meeting. Based on an average salary of approximately $18,402 over the past five years and the 75% minimum disability benefit, Mr. Winston's pension will approximate $13,801 annually. Charts from Finance which take into consideration mortality rates and age reflect the "present value cost of financing" this pension will be approximately $163,582. On November 2, 1992, the Trustees remanded this request to the PAC pending receipt of a legal opinion as to whether or not under the ADA and the City's Pension Plan the City could make reasonable accommodations for an employee and place that employee in another position. An opinion was received from the firm of Thompson, Sizemore and Gonzalez, P.A., indicating the City could make an accommodation for an employee but the employee would not have to accept it. In addition, an employee is entitled to a disability pension if in the opinion of the PAC that employee cannot perform the duties of his/her job. The Trustees also requested the PAC review the independent medical examination (IME) which contained a statement indicating Mr. Winston had well-developed musculature for someone who has not been able to exercise normally for three years. On December 2, 1992, the PAC reviewed the IME and the legal opinion received. At the conclusion of its review, the Committee determined the medical documentation supported Mr. Winston's request for a job-connected disability pension. The Committee, by motion duly made and seconded, remanded this to the Trustees for their approval and requested the entire packet of information submitted by Mr. Winston's attorney be sent to the Trustees. Mr. Laursen indicated Mr. Winston was offered an accommodation but refused. Trustee Deegan moved to grant a job-connected disability pension to Caleb Winston. The motion was duly seconded and carried unanimously. ITEM #5 - Authorize a continuation of 8% employee contribution to the Pension Plan for calendar year 1993 and designate a city contribution for fiscal 1994 which is equal to the actual employee contributions for 1993 The Employees Pension Plan ordinance provides for a minimum 6% contribution by the employees, and further grants the Trustees the authority to increase the contribution percentage up to an additional 2%, providing the City contributes a like amount. Due to phenomenal asset growth in 1991, a 9.2% total contribution would have been sufficient to meet the state required minimum contribution for calendar year 1992. At staff suggestion, however, on July 13, 1992 the Trustees authorized a continuation of the 8% employee contribution for calendar 1992, and designated a like dollar amount to be contributed by the City during the first six months of fiscal 1993. At the same time, the Trustees authorized staff to begin investigating benefit adjustments which could be offered to employees without requiring a total contribution in excess of 16% (8% employees, 8% City). One such adjustment currently under discussion is an annual increase (or decrease, but never below the guaranteed benefit), not to exceed 3%, based on the actuary's determination that it can be funded within the 16% guideline. Preliminary discussions with the actuary indicate the relatively stagnant performance of pension plan assets thus far in 1992 may require a total contribution for 1993 in excess of 12% As a result, and in light of the ongoing discussions regarding benefit increases, staff recommends a continuation of the current 8% employee contribution levels at least through 1993, with the City contributing a like dollar amount in the first six months of fiscal 1994. Pending another favorable actuarial report, either benefit increases could be approved or contribution rates could be reduced effective in 1994. Trustee Berfield moved to authorize a continuation of the 8% employee contribution to the Pension Plan for calendar year 1993 and designate a city contribution for fiscal 1994 which is equal to the actual employee contributions for 1993. The motion was duly seconded and carried unanimously. ITEM #6 - Other Business: - None. ITEM #7 - Adjournment: The meeting adjourned at 1:48 p.m.