01/25/2001
TRUSTEES OF THE EMPLOYEES' PENSION FUND SPECIAL MEETING
CITY OF CLEARWATER
January 25, 2001
Present: Brian J. Aungst Chair
J. B. Johnson Vice-Chair/Trustee
Ed Hart Trustee
Robert Clark Trustee
F. David Hemerick Trustee
Also present: William B. Horne II Interim City Manager
Pamela K. Akin City Attorney
Stephen Cypen Attorney
Paul O'Rourke Human Resources Administrator
Cynthia E. Goudeau City Clerk
The Chair called the meeting to order at 9:03 a.m. at City Hall.
ITEM - Request for membership in Pension Plan - Police Chief Sidney Klein & Deputy Chief
William Baird
On May 30, 2000, a letter was received from Andra Dreyfus, attorney for Police Chief
Sidney Klein, requesting he be allowed to participate in the City of Clearwater Employees'
Pension Plan (EPP). The request was predicated upon Chief Klein's request to participate in
the Police Supplemental Pension Plan to which he has made application on numerous
occasions. Various opinions received over the years indicate that Chief Klein can not
participate in the supplemental pension plan unless he is a member of a defined benefit plan
such as the EPP.
On June 14, 2000, Ms. Dreyfus submitted a letter requesting that Deputy Police Chief
William Baird also be allowed to participate in EPP.
At the same time that Ms. Dreyfus submitted the Chief's request to join the EPP, she
also wrote to the City Attorney indicating a possible conflict of interest with the City's pension
attorneys, Christiansen & Dehner, providing an opinion as to Chief Klein's and Deputy Chief
Baird's eligibility since this firm also represents the Police Supplemental Pension Plan. Scott
Christiansen had previously rendered an opinion as to the Chief's ineligibility for participation in
the supplemental plan. The Trustees appointed Stephen Cypen from the law firm of Cypen &
Cypen to render an opinion on these requests.
On January 11, 2001, Stephen Cypen appeared before the Pension Advisory
Committee (PAC) to address his written opinion provided via letters dated October 5, 2000 and
December 22, 2000. Mr. Cypen's opinion was that neither Chief Klein nor Deputy Chief Baird
are eligible to participate in the EPP based on the fact that by signing numerous
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Employment Agreement Letters, they both voluntarily opted not to participate and accepted the
alternative retirement provisions available to them. Based on Mr. Cypen's opinion, the PAC
denied the requests of both Chief Klein and Deputy Chief Baird to participate in the EPP.
Mr. O'Rourke indicated Deputy Chief Baird has asked that his request be tabled.
Mr. Cypen reviewed his background and experience in dealing with pension issues. He
has reviewed additional material sent to him. However, his opinion that Chief Klein is ineligible
due to voluntarily opting out of the pension plan remains unchanged. He did not address
whether or not the Chief could have legally been excluded from the plan.
Mr. O'Rourke indicated the many documents provided give a history of opinions that the
Police Chief has no standing for admittance into the Pension Plan. In response to a question,
Mr. O'Rourke reported the PAC unanimously recommended denial of the request.
Andrea Dryfus, representing the Police Chief, gave background relating to the Chief's
request. The Chief is not seeking to participate without paying. He was never given the
opportunity to participate in the plan, therefore never waived his right to participate. She
stated the Chief has a constitutional right to participate in the plan.
In response to a question, Ms. Dryfus, explained why she believed the Chief has a
constitutional right to participate in the plan. Her opinion is that the City's Ordinance is in
conflict with State Statute and therefore would fall. She stated, Mr. Cypen's opinion regarding
the Chief opting out of the plan, is based on a part of the statute that has been repealed. She
stated the Chief did not opt out as he was never given the opportunity to participate. In
response to a question, she indicated she does not have written applications to the general
plan but does have witnesses to discussions to get into the plan. Only last year was the Chief
advised that in order to get into the Supplemental Pension Plan he would have to apply to
participate in the Employees' Pension Plan.
Mr. Cypen explained because senior staff are at will employees, they participate in
defined contribution plans that provide portability instead of defined benefit plans such as the
Employees' Pension Plan. State Statute requires, in order to participate in the supplemental
pension plan, the participants belong to a defined benefit plan.
Discussion ensued regarding varying opinions over the years regarding the Chief's
ability to participate in the Supplemental Pension Plan and whether he should have been given
an opportunity to opt out of the General Employees' Pension Plan.
Trustee Johnson moved to deny Police Chief Sidney Klein's request for membership in
motioncarried
the Employees' Pension Plan. The was duly seconded and unanimously.
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In response to a question from Mr. O'Rourke, consensus was to hold the presentations
by the City Manager Search firms at a location other than Chambers.
In response to a question, the City Attorney reported Mr. Cypen is paid hourly and his
fee does not come out of the fees paid to the Trustees contracted attorney firm.
The meeting adjourned at 9:34 a.m.
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