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03/09/2006 . . . PENSION ADVISORY COMMITTEE MEETING MINUTES CITY OF CLEARWATER March 9, 2006 Present: John Lee Nathan Hightower Tom Jensen John Schmalzbauer Hoyt P. Hamilton Carlen Petersen John Doran Chair Vice-Chair Committee Member Committee Member Committee Member/Councilmember Committee Member/Councilmember Committee Member/Councilmember Also Present: Robert Klausner Joe Roseto Brenda Moses Attorney for the Board Human Resources Director Board Reporter The Chair called the meeting to order at 9:00 a.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. 2 - Approval of Minutes Member Hamilton moved to approve the minutes of the regular meeting of February 9, 2006, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. 3 - Selection of Seventh Member Human Resources Director Joe Roseto said the seventh member is appointed by the other six PAC (Pension Advisory Committee) members. Member Hightower, whose term expires this month, is eligible for reappointment. Staff can search for additional candidates if directed by the PAC. Member Hamilton moved to appoint Nathan Hightower as the seventh member of the Board. The motion was duly seconded and carried unanimously. 4 - Emplovees to be Heard - None. 5 - Action Items a. Review & Action on Employee Requests for Regular Pensions 1. Herman Pittman, Fire 2. Marsha McGrath, Library Member Hightower moved to approve the requests for regular pensions for Herman Pittman and Marsha McGrath. The motion was duly seconded and carried unanimously. b. Review & Action on Employee Requests to Vest Pensions Pension Advisory 2006-03-09 1 . 1. Marlene Mitchell, Library Marlene Mitchell, Librarian II, Library Department, was employed by the City on March 21, 1994, and began participating in the Pension Plan on that date. Ms. Mitchell terminated from City employment on February 14, 2006. 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. Mitchell would have completed at least 20 years of service and reached age 55 on March 21,2014. Her pension will be effective April 1 ,2014. This pension was approved by the Pension Advisory Committee on March 9, 2006. Member Petersen moved to recommend approval of the request by Marlene Mitchell to vest her pension. The motion was duly seconded and carried unanimously. c. Approval of New hires as Plan Members: . As of February 22, 2006, the City had 1823.01 FTEs out of 1899.2 budgeted positions. Plan: Member Doran moved to accept the following employees into membership in the Pension Name. Job. Class. & Dept./Div. Catherine Cotton, Fire Inspector I/Fire Bonnie Bagry, Police Communications Operator/Police Michael Nodes, Marine Lifeguard/Marine & Aviation Brad Womack, Survey Assistant I/Engineering Martin Holmes, Survey Assistant I/Engineering Angela Trueblood, Rec. Programmer/Parks & Rec. David Storck, Air Conditional Tech.lGeneral Services Lan-Anh Nguyen, Engineering Specialist II/Engineering Himanshu Patni, Engineering Specialist II/Engineering Michael Springer, Solid Waste Worker/Solid Waste Angel Lucena, Solid Waste Worker/Solid Waste Jayme Loy, Rec. Leader/Parks & Rec. William Andrews, Electro-Mechanical Tech.lPublic Utilities The motion was duly seconded and carried unanimously. . 6 - Pendina/New Business Pension Advisory 2006-03-09 Pension Elig. Hire Date Date 1/23/06 1/23/06 12/27/05 12/27/05 1/23/06 1/23/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/6/06 2/7/06 2/7/06 2 . . . a. Virginia Ford - Retroactivity Member Hightower declared a conflict of interest. Mr. Roseto said the PAC recently had approved a job-connected disability for David Lee Ford, the deceased husband of Virginia Ford. The PAC needs to determine the effective date of compensation. Frank Brown, representative, referenced a memorandum and supporting documents he had provided the City. He said 10 years ago, the City's Human Resource Director had stated that Mr. Ford's benefits would revert back to the original date of the determination of disability if a job connection disability finding was made in the future. He said on March 21, 1996, the PAC granted a non-job-connected disability, effective April 1996. He said since then, the only remaining question was the cause of the disability. Mr. Brown said benefits in this case should be retroactive to April 1996, regardless of current City claims that previous staff statements were incorrect and that benefits should not be retroactive. Mr. Brown said when this issue first came before the PAC, Mr. Ford's Worker's Compensation claim was pending, however, it never was determined if the disability was job-connected. Mr. Brown said the City has had many opportunities to resolve this issue. He said in 1997, the City claimed Ms. Ford had no basis to proceed with her claim after her husband had died. He said it is the PAC's responsibility to decide this issue. Assistant City Attorney Leslie Dougall-Sides said the City bases its position on the Code, which indicates that benefits commence following the date a disability determination is made. She said until last month's PAC hearing, nothing in the record indicated the disability was job- connected and no basis for retroactivity exists. She said she was present at the 1996 meeting when former Human Resources Director Larsen stated that benefits would be retroactive if it later was determined that the disability was job-connected. She said Mr. Larsen did not have the authority to make that statement, which was a legal interpretation of the Code, and nothing in the record indicates that the City Attorney's office or outside counsel agreed with the statement. She said the PAC has the authority to investigate and determine eligibility for pension plan participants. She suggested the PAC could refer questions of legal interpretation of the Code to the Pension Trustees. Over ten years, the difference between the non-job- connected and job-connected disability payments is $64,588.08, without interest. In response to a question regarding whose job it was to correct Mr. Larsen's erroneous statement, Ms. Dougall-Sides said the Code tasks the City Attorney's office with providing legal representation to the City Council and to the City in all matters. She said the City Attorney has retained outside legal counsel for the PAC and the Pension Trustees as a result of issues raised by PAC members, and that she was present when Mr. Larsen made the statement regarding retroactivity. It was questioned again who was supposed to have corrected Mr. Larsen if he had made an erroneous statement. Ms. Dougall-Sides said she was the legal counsel for the PAC at that meeting, but that the PAC had not requested a formal opinion at that time. She said Mr. Larsen had made the statement without first checking with her. She said she had not wanted to correct him in a public meeting. She said the City Attorney's office and outside counsel have not opined on the retroactivity question. She said it is a question of first impression. It was suggested that one could assume that statements made at that meeting, not corrected by legal counsel, were correct. Ms. Dougall-Sides said Mr. Brown's argument is that Pension Advisory 2006-03-09 3 . . . the City was estopped by Mr. Larsen's statement. Regardless of claims made by Messrs. Larsen and Roseto, the PAC and Trustees, with advice of counsel, is responsible for interpreting Code. In response to a question, Ms. Dougall-Sides said the question of retroactivity was hypothetical when asked of Mr. Larsen, as the PAC had not determined that the disability was job-connected. She said Mr. Larsen probably thought the case would be settled within months. Mr. Brown said the City's argument does not make sense. He said the March 1996 meeting minutes indicate that Mr. Ford had made a claim for a job-connected disability and that Mr. Larsen had indicated that the City did not have enough information to reach a determination. Mr. Brown said more evidence was needed. He said the Fords cannot be faulted because the City's record had not been developed fully in 1996. He said the PAC had approved a non-job- connected disability for Ms. Ford, and indicated that benefits would be retroactive if additional information could be provided that proved that the disability was job-connected. He said the City's IME (Independent Medical Exam) physician report was not presented until 1997. He said in 1996, some PAC members felt the case was job-connected. He said the evidence, facts, equity, and law support conversion to a job-connected disability, effective April 1996. In response to a question, PAC Attorney Robert Klausner said it is within the PAC's purview to make this decision. He said the job of PAC's legal counsel is to give the board legal advice. He said it is legal counsel's job to inform the PAC if someone makes an incorrect statement. Member Jensen moved to grant Virginia Ford retroactivity on the job-connected benefit for David Lee Ford to the first date of payment of his original disability award. The motion was duly seconded. Members Lee, Schmalzbauer, Jensen, Hamilton, Petersen, and Doran voted "Aye." Member Hightower abstained. Motion carried. b. Joseph Mack - Job-connected Disability Hearing Mr. Roseto said the City is not contesting this application and agrees that the disability renders the participant unable to perform any useful, meaningful, and necessary work for the employer in an available position for which the participant is reasonable qualified or for which the participant may be reasonably trained to perform. Member Jensen moved to introduce into evidence the entire file, inclusive of medical records and the IME. The motion was duly seconded and carried unanimously. Don Anderson, representative, was available to answer questions. Member Petersen moved that Joseph Mack is disabled due to a job-connected injury, such disability is likely to be continuous and permanent from a cause other than those listed as general disability exclusions, and such disability renders the participant unable to perform any useful, meaningful, and necessary work for the employer in an available position for which the participant is reasonable qualified or for which the participant may be reasonably trained to perform. The motion was duly seconded and carried unanimously. 7 - Director's Reports Mr. Roseto complimented the recent conference hosted by the Pension Plan's attorneys. Pension Advisory 2006-03-09 4 . . . 8 - Committee Members to be Heard Mr. Klausner said conference organizers would work to avoid conflicting dates for future conferences. In response to a question, Mr. Roseto said all unions have been notified that the City is ready to begin negotiations related to pensions. All negotiations must be brought before all employee groups. Some changes discussed by the PAC, such as permitting survivors to chose benefits the day they vest, probably could go forward without collective bargaining. He hoped some changes can be addressed at November's referendum. In response to a question, Mr. Klausner said the Council can act on changes that do not increase or reduce pension benefits upon recommendation by the Pension Trustees. The State governs most changes. The PAC's recommendation regarding survivor benefit selections would be an administrative change. It was requested that staff notify committee members in advance when the City does not plan to contest disability requests. Member Hightower was complimented for his reappointment and thanked for serving another term. Another PAC seat will expire shortly. Adiournment The meeting adjourned at 9:34 a.m. ~ ,~ L..../ ~ :.c air . Pension Advisory Committee 'f;~ ~ Board Reporter Pension Advisory 2006-03-09 5