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01/18/1994 TRUSTEES OF THE EMPLOYEES' PENSION FUND MEETING January 18, 1994 The City Commission, meeting as the Board of Trustees of the Employees Pension Fund, met in regular session at City Hall, Tuesday, January 18, 1994 at 11:24 A.M., with the following members present: Rita Garvey Chairperson Richard Fitzgerald Trustee Sue Berfield Trustee Arthur X. Deegan, II Trustee Fred Thomas Trustee Also Present were: Elizabeth M. Deptula Interim 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 January 3, 1994, 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) David Fletcher b) Samuel L. Dukes c) Catherine M. Markham d) John W. Cole, Jr. e) John G. Henry f) Susan H. Burns g) John H. Coombs h) Mary Wood i) Mark Hannah j) Patricia Sullivan k) Patricia Hirt l) Timothy Caldwell m) Jon M. Wilbur n) Robert D. Jaeger o) Darrell Don Trustee Berfield moved to accept the recommendation of the Pension Advisory Committee. The motion was duly seconded and carried unanimously. ITEM #4 - Request for Pension: The City Manager presented the recommendation of the Pension Advisory Committee that Gustave A. Nelson, Jr. be granted a regular pension under Section 2.396 of the Employees' Pension Plan. Gustave A. Nelson, Jr. was employed on June 3, 1974, and began participating in the Pension Plan on that date. His retirement will be effective on June 7, 1994, at the beginning of the day. Mr. Nelson's pension was approved by the PAC at its meeting of December 15, 1993. Based on an average salary of approximately $38,178 over the past five years and the formula for computing regular pensions, Mr. Nelson's pension will approximate $19,089 annually. Charts from Finance which take into consideration mortality rates and age reflect the "present value cost of financing" this pension will be approximately $208,492. Trustee Berfield moved to accept the recommendation of the Pension Advisory Committee. The motion was duly seconded and carried unanimously. ITEM #5 - Request for Pension: The City Manager presented the recommendation of the Pension Advisory Committee that Elton Reichardt be granted a regular pension under Section 2.396 of the Employees' Pension Plan. Elton Reichardt was employed on September 12, 1973, and began participating in the Pension Plan on that date. His retirement will be effective on January 8, 1994, at the beginning of the day. Mr. Reichardt's pension was approved by the PAC at its meeting of December 15, 1993. Based on an average salary of approximately $34,330 over the past five years and the formula for computing regular pensions, Mr. Reichardt's pension will approximate $17,422 annually. Charts from Finance which take into consideration mortality rates and age reflect the "present value cost of financing" this pension will be approximately $141,442. Trustee Deegan moved to accept the recommendation of the Pension Advisory Committee. The motion was duly seconded and carried unanimously. ITEM #6 - Request for Pension: The City Manager presented the recommendation of the Pension Advisory Committee that Lynn Smith be granted a non-job-connected disability pension under Section(s) 2.396 and/or 2.399 of the Employees' Pension Plan. Lynn Smith was employed by the City on October 25, 1972, and began participating in the Pension Plan on that date. On April 28, 1993, Ms. Smith submitted an application for a job-connected disability pension. On July 7, 1993, the PAC recommended Ms. Smith be granted a non-job-connected disability pension but retain the right to continue to submit additional documentation to support her request for a job-connected disability pension. Ms. Smith had submitted letters from several doctors, including an independent medical examination (IME) at the request of the PAC. Those letters included an April 12, 1993, letter from Dr. Levi Cohen whose diagnosis was major depression and which indicated he could not envision Ms. Smith returning to her work, although he wrote an additional letter on September 21, 1993, to clarify his original letter by indicating Ms. Smith's depressive reaction was related to a demotion and the specific supervisor to whom she had to report; a March 19, 1993, letter from Dr. Alan Waldman who also diagnosed major depression and indicated that the stimulus for the depression was her job situation; and the IME from Dr. Ron Lopez, dated June 6, 1993, who related that Ms. Smith has a permanent impairment to function in her communications manager job. On August 2, 1993, the Trustees denied the recommendation of the PAC for a non-job-connected disability pension. Subsequently, Ms. Smith submitted an additional letter from Dr. Alfred E. Fireman, dated November 1, 1993, which related that "... well within reasonable medical certainty ... Ms. Smith suffers from two serious conditions of mental and emotional illness: Acute Major Depression, DSM III, 296.2 and Post Traumatic Stress Disorder, DSM, 309.89. These conditions were precipitated by her employment with the Clearwater Police Department and permanently and totally disable her from continuing employment there ...". At its meeting of December 1, 1993, the PAC reviewed all the medical documentation provided regarding Ms. Smith. Based on a determination that Ms. Smith is disabled from performing her job as Police Communications Manager and that the disability is not job-related, the PAC recommended the granting of a non-job-connected disability pension. Ms. Smith's attorney, Mr. Louis Kwall, proposed that the documentation supports a job-connected disability pension and, in that the Trustees previously rejected a non-job-connected disability pension, it must now approve the pension as job-connected. Based on an average salary of approximately $36,327 over the past five years and the formula for computing non-job-connected disability pensions, Ms. Smith's pension will approximate $18,845 annually. Charts from Finance which take into consideration mortality rates and age reflect the "present value cost of financing" this pension will be approximately $221,963. H. M. Laursen, Human Resources Director, indicated this request had been before the Trustees before and had been denied. He stated an additional letter from a doctor had been submitted by Ms. Smith and the PAC is now recommending a non-job-connected disability. Lou Kwall, attorney for Ms. Smith, stated he was here to answer any questions that the Trustees may have. He stated that Dr. Fireman, the doctor submitting additional information, has acted as an expert witness for the City. Chairperson Garvey questioned if Mr. Kwall agreed with the recommendation for a non-job-connected disability. He indicated he did not but at this point, there was no other recourse. He stated there was no issue regarding Ms. Smith being disabled. Ed Hooper, PAC member, stated they had reviewed the documentation and had recommended approval of a non-job-connected disability. Trustee Deegan disagreed with Mr. Kwall regarding there being no doubt that Ms. Smith is disabled. He stated according to Dr. Cohen's letter, there is a question. Mr. Kwall stated that Dr. Cohen's relationship with Ms. Smith was not particularly good and that at the end, Dr. Cohen did not want anything to do with the case. Trustee Deegan stated that was Mr. Kwall's interpretation but that Dr. Cohen had submitted two letters that seemed to contradict each other. He stated the final letter submitted stated there was no permanent impairment and the prognosis was excellent as long as Ms. Smith did not have to report to a particular supervisor. Mr. Kwall stated the relationship between the doctor and the patient deteriorated and it was not fair for Dr. Cohen's statement to go without clarification. He stated again that Dr. Fireman's word has been accepted by the City before. The additional information was provided to the PAC and the recommendation is for a non-job-connected disability. He questioned if Trustee Deegan was saying that no evidence could be presented to convince him of the disability. Trustee Deegan stated he was not saying that. He stated there is more evidence that disagrees with Dr. Cohen. He was simply stating that there is a question regarding the disability. Trustee Deegan stated he had a concern regarding setting a precedent that if an employee has a problem with their evaluation, that they could claim depression and get a permanent disability. He stated this makes a sham out of the evaluation program and is the reason he agrees with Dr. Cohen. Mr. Kwall stated he would not rely on Dr. Cohen's letter and that the evidence is clear and convincing that Ms Smith is disabled. He stated the PAC's decision was to recommend a non-job-connected disability. He stated the Trustees, at some point, would have to rely on the recommendations made to them. Chairperson Garvey pointed out that Dr. Fireman also states that the condition is precipitated by the employment at the Police Department. Mr. Kwall again stated that the PAC is satisfied and that he did not know what more could be asked. He stated Ms. Smith has been under care of doctors for a long time. He stated the recommendation is for a non-job-connected disability. He stated he does not agree that it is non-job-connected but that is what the recommendation is. Trustee Thomas pointed out that having the disability in the pension plan is a major flaw in the plan. He stated disability needs to be removed from the pension. He felt that job dissatisfaction should not be a criteria for disability pension. He further stated the City had offered employment elsewhere in the City but Ms. Smith had turned this down. Mr. Kwall expressed concerns that this was information that had not been provided in a public meeting. He stated it is not proper for people to talk to others outside the record. Trustee Thomas stated it was in the record and it was discussed. Chairperson Garvey questioned if the rule was that the PAC's recommendation could not be overturned. The Attorney indicated the Trustees were not bound by the PAC's recommendation. Mr. Hooper indicated that the only time that the Trustees do not have the right to overturn a PAC decision is in connection with a job-connected disability. Further discussion ensued regarding what could be discussed before the Trustees. Mr. Kwall alleged that references had been made to telephone calls in which additional information was offered. Mr. Hooper objected to the implication. He stated the current PAC has not discussed cases outside of the Sunshine. Trustee Berfield indicated that none of the letters state that Ms. Smith is disabled from employment, simply that she is disabled as a Communications Commander. There is nothing that says she can not work elsewhere. Mr. Kwall indicated that is saying that it is a job-connected disability. Trustee Berfield reiterated that if the individual can work elsewhere, they are not disabled. Mr. Laursen indicated the PAC had discussed the City's offer to Ms. Smith for employment elsewhere in the City. He stated the interpretation of the pension plan has historically been that if an individual can not do their particular job, they are disabled and are not required to take another job, although one may be offered. Trustee Berfield again stated she has read all the letters and that they say Ms. Smith can not function in that position or under that supervisor. She questioned if Ms. Smith could do that job if she had a different supervisor. Mr. Hooper indicated that was one of the discussions that occurred before the PAC and that there was some question regarding Ms. Smith's job description due to a reorganization in the police department. It was not clear if she was a Communications Commander or a Communications Supervisor. Chairperson Garvey again questioned if there were a different supervisor, if Ms. Smith could perform the duties. Mr. Hooper indicated the PAC agrees there needs to be a different direction in the pension plan, however, the City is bound by the current ordinance. Trustee Deegan questioned who was in power to review the interpretation of the plan as presented by Mr. Laursen. Mr. Laursen indicated he believed it would require a change in the ordinance as it refers to "their duties". Trustee Deegan indicated that there are now Americans with Disability Act (ADA) requirements for disabled individuals and that the City has to accommodate them. Mr. Laursen indicated that the City is required to try to accommodate the disability and they do make that effort. Ms. Smith was offered other employment, as other disability candidates have been, but most respond they do not want the other employment. They do not have to take the other job if they do not want to. Trustee Deegan questioned whether or not there would be a different interpretation of "their duties" under the new ADA requirements. Mr. Laursen agreed that the City is in the middle regarding this. He stated the Legal Department would have to address whether or not there can be a new interpretation. Trustee Thomas questioned what the difference would be between the disability pension and a standard pension. It was indicated that the calculation used is the same, however, on a disability pension, the individual is able to collect earlier. It was stated that Ms. Smith would be eligible for a regular pension in nine years and at that point, should she remain with the City, it is likely her salary would be greater and the calculation while using the same formula would result in a different pension. Trustee Thomas questioned what would be the down side to the City if the Trustees again denied the pension. Miles Lance, Assistant City Attorney, stated if the Trustees grant the non-job-connected disability, there is possibility of litigation for a job-connected. If they turn down the pension entirely, there is a chance of litigation in circuit court. Trustee Thomas questioned if this goes to court, whether or not the plaintiff would have the right to recover legal fees. It was indicated they would. Trustee Thomas felt there was a need to expeditiously address the removal of disability from the pension plan. Trustee Thomas questioned the estimate of legal costs. Mr. Lance indicated approximately $150 per hour for an outside attorney with the case probably taking 100 to 150 hours, plus there would be additional out of pocket expenses. Mr. Kwall indicated Mr. Lance's estimate was fair. He stated Mr. Laursen's statement regarding the disability for the specific job provides additional cause of action. Trustee Fitzgerald returned to the question of how the pension was figured. He stated if Ms. Smith continued employment to regular pension, her pension allotment would be based on the average of the last five years of employment which could be significantly different. He questioned if there was any idea of what this difference may be. Mr. Laursen indicated it would be difficult to say and that the additional nine years of pension benefits being paid would be offset to some extent. He stated the base pension rate would be higher. Trustee Deegan moved to approve the recommendation of the Pension Advisory Committee to grant Ms. Smith a non-job-connected disability pension. The motion was duly seconded. Trustee Deegan indicated his motion was based on the statements from Mr. Laursen and that the request could be resubmitted. He stated if the pension is given now, it will be about the same in the long run. Upon the vote being taken; Trustees Fitzgerald, Deegan and Chairperson Garvey voted "Aye", Trustees Berfield and Thomas voted "Nay". Motion carried. ITEM #7 - Other Business: Trustee Deegan referred to the interpretation of the phrase "their duties" and he asked what could be done to see if the interpretation could be changed. He stated he would not like for that interpretation to continue. He stated his fear is the precedents that are being set. He questioned if an applicant submits additional information, what the PAC does to also obtain additional information. Mr. Hooper indicated he felt that Deborah Crumbley, one of the City's labor attorneys, had rendered an opinion regarding this phrase. Mr. Laursen indicated the PAC has obtained independent evaluations as additional information. He stated cases such as this, regarding emotional injury, are more difficult. It was the consensus that Legal would research and report regarding the interpretation of "their duties". Trustee Deegan indicated he was disturbed by the direction of Mr. Kwall's comments seeming to indicate that the Trustees can not accept additional information than what was brought up before the PAC. He stated this is not an administrative hearing. Mr. Lance indicated that Mr. Kwall was making an argument common to lawyers in court and administrative hearings. He stated this does not apply in this case. He stated the PAC makes recommendations and is very limited in their function. He indicated the Trustees could get involved in a greater examination of the case. The Trustees are not an appellate court from the PAC. Trustee Thomas stated he hoped Legal and staff would come back with a new ordinance dealing with the disability, having a major insurance carrier specializing in disability and staff bring back a plan on how to separate disability from the pension plan. Ms. Rice indicated this would have to be bargained and it will be discussed at the closed bargaining session on January 31, 1994. The Attorney pointed out that any changes would also be subject to referendum. ITEM #8 - Adjournment: The meeting adjourned at 12:32 p.m.