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06/07/1999 TRUSTEES OF THE EMPLOYEES' PENSION FUND SPECIAL MEETING CITY OF CLEARWATER June 7, 1999 Present: Brian J. Aungst Chair Ed Hooper Vice-Chair/Trustee J. B. Johnson Trustee Robert Clark Trustee Ed Hart Trustee Also Present: Michael J. Roberto City Manager - arrived 3:36 p.m. Rick Hedrick Assistant City Manager Pamela K. Akin City Attorney Rick Ebelke Human Resources Manager Debbie Ford Administrative Analyst Cynthia E. Goudeau City Clerk Patricia O. Sullivan Board Reporter The Chair called the meeting to order at 3:30 p.m. at City Hall. Deputy City Manager Rick Hedrick said the Pension Trustees June 1, 1999, approval of buybacks for Messrs. Marotta and Krieger in amounts not provided in Pension Plan rules has raised questions regarding the legality of that decision. The Trustees' attorney could not be present today. On June 1, 1999, he had recommended against the action. In response to a concern, the City Attorney indicated staff, as directed by the Trustees, is preparing a study to assess future requests by comparing Plan impacts of buybacks at the actuarial equivalents versus an interest computation. Trustee Hart moved to rescind approval of the buybacks for Messrs. Marotta and Krieger and to complete the study. There was no second In response to a question regarding how today's action could affect cases involving Messrs. Donagan and Harper and Ms. Maroon, the City Attorney said each case has factual differences. Ms. Maroon's settlement was determined by litigation. Mr. Harper's settlement was based on his erroneous exclusion from participation and is consistent with the IRS' correction rules. She expressed concern that Mr. Donagan's case involves a different set of circumstances as he has retired. She expressed concern it would be difficult to try and alter benefits after the fact. In response to a question, Administrative Analyst Debbie Ford said staff has identified 200 employees whose hire dates differ from their pension dates. The exact number who may qualify for buybacks has not been determined. Human Resources Manager Rick Ebelke said 18 employees responded in 1996 to buyback opportunities at the actuarial equivalent rate or payback of pension contributions plus 5%, whichever is higher. Some employees did not respond after being advised of the actuarial equivalents. More employees may be interested in buybacks at the lower rate. A memorandum has been sent to departments regarding the mpf06b99 1 06/07/99 study requested by the Pension Trustees. Employees interested in applying for buybacks at the lower rate have a deadline of June 30, 1999. Andra Dreyfus, representative for Messrs. Marotta and Kreiger, said both have taken actions based on the June 1, 1999, vote. Mr. Krieger has repaid his contribution to the Plan. Mr. Marotta has ordered the sale of securities to repay his contribution. Both are planning to retire within the year. The City Manager suggested the Pension Trustees gather information on the impact of buybacks using both computations, then decide if the plan should be changed to accommodate that benefit. Changes to the plan must be approved by the unions, employees, and citizens in a referendum. He estimated results of the study could be presented by September. Ms. Dreyfus said changing the status of her clients is unfair as the case has been ongoing since April. In response to a statement, the City Attorney stated Assistant City Attorney Leslie Dougall-Sides had provided the PAC (Pension Advisory Committee) the same opinion as Mr. Christiansen that allowing the 5% buyback was not provided in the plan. The City Attorney said new cases no longer have distinguishing factors such as those related to Ms. Maroon and Messrs. Harper and Donagan. She expressed concern the Trustees are establishing a precedent. If the June 1, 1999, action is rescinded, it is possible those affected will press their case in court. In response to a question, the City Attorney said the Trustees action of June 1, 1999 is outside the plan. Concern was expressed the Trustees could face a lawsuit by acting outside their fiduciary bounds. It was recommended the Trustees decide what is best for the employees and plan after receipt of the study. Trustee Hart moved to rescind the June 1, 1999, action and move forward with study. There was no second. In response to a question, the City Attorney said Mr. Christiansen is the Trustees legal counsel. She did not know the Trustees exposure to lawsuits if they continue making similar decisions or rescind the June 1, 1999, action. It was stated the PAC's approval of buybacks at the lower amount was based on information provided the committee at that time. Concern was expressed the Trustees and PAC had not been advised the decision violated the law. John Lee, President of the IAFF union, said he had received many calls since the June 1, 1999, decision. Union members have expressed concern regarding the plan's solvency if a loophole is opened. He recommended a study be done. The City Manager reviewed the sequential steps necessary to change the Plan. Ms. Dreyfus said if there is no harm, there is no foul. Concern was expressed the taxpayer will be harmed if funding to the Plan is increased based on this decision. The City Manager said employees have expressed concern allowing this benefit will prevent another benefit from occurring. Ms. Dreyfus expressed concern voters may not approve the referendum question to change the Plan. It was noted the Plan's funding levels are excellent. It was felt this issue started when Jeff Harper's buyback for a non-actuarial amount was mpf06b99 2 06/07/99 approved. Concern was expressed the PAC had not had legal help when reaching its decision. The City Attorney said reconsideration of the Donagan case should not be eliminated as a possibility. Trustee Hart moved to rescind the June 1, 1999, action and move forward with study. There was no second. Concern was expressed Mr. Christiansen was not in attendance. The City Attorney said Mr. Christiansen is prepared to attend all future regularly scheduled meetings. Concern was expressed the Trustees will be exposed to litigation regardless of their decision. The City Attorney said the impact of decisions similar to the one made on June 1, 1999, will not be known until the study is complete. In response to a question, she said the City must bargain that impact with the unions once the consequences are identified. Mr. Lee questioned if a Pension Plan member could sue the Trustees for awarding benefits the Plan cannot afford to pay. The City Attorney reviewed acts necessary before Trustee members can be held personally liable for decisions. In response to a question, the City Attorney said Mr. Christiansen had advised the Trustees that Plan language did not allow approval of buybacks at the lower rate of interest. A plan participant is permitted to take legal action regarding that decision. Mr. Lee expressed concern if decisions are made outside the Plan's guidelines, then the guidelines have no value. It was noted if the Trustees rescind action related to Messrs. Krieger and Marotta, the Trustees also could rescind decisions related to Messrs. Donagan and Harper. The City Attorney said the Trustees could revisit the Donagan and Harper cases although related facts differ greatly. Concern was expressed regarding harm to the Plan if a large number of employees are provided the lower buyback rate. Mr. Lee requested the Trustees reconsider their June 1, 1999, decision, review the results of the study, and change the plan if that action is deemed appropriate. Pat Greer, PAC member, suggested many of the 200 employees had worked part time and did not qualify for buybacks. It was felt the cost to the Plan must be known before a decision is made. The City Manager said the study could be completed by mid-July with added staff time. It was noted, even with the study, the unions and voters must approve any changes. Concern was expressed the June 1, 1999, decision could result in potential group and individual exposure for Trustee members. In response to a question, the City Attorney said a court would have to determine exposure. Concern was expressed Messrs. Marotta and Krieger could retire before the study is completed. The City Manager said the Trustees will have more information on June 17, 1999. It was questioned how the difference between the buyback amount approved June 1, 1999, and the actuarial equivalent would be covered. Concern was expressed a dangerous precedent has been set without information regarding the long-term consequences to the Plan or taxpayers. Concern was expressed union suspicions will increase if the Trustees do not follow established rules. It was felt the Trustees should limit exposure rather than expand it. It mpf06b99 3 06/07/99 was noted the PAC had reached its decision without input from Mr. Christiansen and may change its recommendation now that additional information is available. Trustee Hart moved to schedule a Special Pension Trustees meeting on June 17, motion 1999, at 5:00 p.m. The was duly seconded. Trustees Johnson and Hart and Chair carried Aungst voted "Aye"; Trustees Clark and Hooper voted "Nay." Motion . Trustee Hart moved to rescind the Trustees June 1, 1999, decision to permit Messrs. Krieger and Marotta to buyback their pension time by repaying the amount they had withdrawn motion plus 5% interest and to readdress at the June 17, 1999 special meeting. The was duly seconded. Trustees Johnson, Hooper, and Hart and Chair Aungst voted "Aye"; Trustee Clark carried voted 'Nay." Motion . The meeting adjourned at 5:03 p.m. mpf06b99 4 06/07/99