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01/11/2001PENSION ADVISORY COMMITTEE MEETING CITY OF CLEARWATER January 11, 2001 Present: Brian Aungst Chair/Mayor J. B. Johnson Vice Chair/Commissioner Dick Fitzgerald Committee Member Pat Greer Committee Member Ed Hart Committee Member/Commissioner John Lee Committee Member Absent: John Schmalzbauer Committee Member Also Present: Scott Christiansen Pension Advisory Committee Attorney Stephen Cypen Cypen and Cypen Paul O’Rourke Human Resources Administrator Margie Simmons Financial Services Administrator Debbie Ford Human Resources Analyst Brenda Moses Board Reporter The Chair called the meeting to order at 9:30 a.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. ITEM #2 – Approval of Minutes of December 14, 2000 Member Johnson moved to approve the minutes of the regular meeting of December 14, 2000, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. ITEM #3 – Employees to be heard – None. ITEM #4 – Action Items Review and Action on Employee Requests for Years of Service Pension Phillip Gatewood – Public Service Technician III, Public Works Peter Verhoeven – Fire Support Manager, Fire Department Member Johnson moved to approve the request by Phillip Gatewood and Peter Verhoeven for a Years of Service Pension. The motion was duly seconded and carried unanimously. Approval of New Hires as Plan Members As of January 4, 2001, the City had 1679.27 FTEs out of 1797.9 budgeted positions (including the City Commission). Member Fitzgerald moved to accept the following employees into membership in the Pension Plan: Date of Pension Employment Elig. Date Richard Clayton, Arborist Public Works 11/20/00 11/20/00 Maurice Hunter, Parks Svc. Tech. I Parks & Recreation 12/04/00 12/04/00 Beverly Ice, Police Information Tech II Police 12/04/00 12/04/00 Christopher Potts, Recreation Supv. Parks & Recreation 12/18/00 12/18/00 Melanie Hasburgh, Public Info. Coord. Parks & Recreation 12/18/00 12/18/00 The motion was duly seconded and carried unanimously. ITEM #5 – Pending/New Business Neil Arfmann, Hearing on Request for Job-connected Disability Pension Pension Advisory Committee Attorney Scott Christiansen said the Pension Advisory Committee (PAC) must follow provisions of the Pension Plan with respect to granting and denying of disability and pensions. The Pension Plan provides that Police and Firefighters shall be granted disability pension to those members who are permanently and totally disabled to the extent they cannot perform useful and sufficient service. If those two criteria are determined, the PAC also must find that none of the exclusionary factors exist: 1) The disability was not occasioned by excessive or habitual use of drugs, intoxicants, alcohol or narcotics; 2) from an injury or disease sustained while willfully and illegally participating in fights, riots, or insurrections; 3) while committing a crime; 4) by injury or disease sustained while serving in the armed forces: 5) by injury or disease while participating after his employment as a firefighter or police officer with the City shall have terminated; or 6) by injury or disease sustained while working for anyone other than the City and arising out of such employment. There is no evidence that any of those exclusionary provisions apply to Mr. Arfmann’s request. Mr. Christiansen said total disability is an inability to perform service as a police officer. He referred to a memorandum from the Deputy Police Chief indicating the Police Department has no light duty position to transfer Mr. Arfmann to in order to allow him to perform his duties as a police officer. Assuming the PAC finds Mr. Arfmann is totally disabled as a police officer, the PAC also must find that the disability is permanent. Mr. Christiansen reviewed the medical records provided to the PAC. He said Mr. Arfmann has experienced back problems, particularly the cervical region of his spine. He has had a number of surgeries and fusion. Dr. Hicks’ evaluation indicates that Mr. Arfmann’s limitations do not allow him to perform active police officer functions. Dr. Moskowitz had performed surgery and fusion. Doctors Sweeney, Cuttler, Piazza, and Colbasani also submitted letters regarding Mr. Arfmann’s condition. Dr. Colbasani’s letter states that Mr. Arfmann’s entire cervical spine has been fused and he is unable to continue to perform his duties as a police officer. An occupational assessment performed indicated that Mr. Arfmann’s physical status would allow him to perform only at a light duty level. Police officers are required to perform at a medium to high level duty. Dr. Cuttler performed an IME (independent medical examination) and provided a letter indicating that Mr. Arfmann has reached maximum medical improvement without more surgery. Dr. Cuttler feels he is disabled from performing the duties of a police officer as indicated in his job description; is disabled from performing those duties and other duties that would require him to lift greater than 15 pounds; and duties that would involve physical activity with the neck. He felt although Mr. Arfmann may benefit from a decompression and proper fusion of the neck, that procedure would not allow him to perform the functions of a police officer. Neil Arfmann was present in the event of questions. Human Resources Administrator Paul O’Rourke said Mr. Arfmann was awarded Officer of the Year two years ago and has a distinguished career as a police officer in Clearwater. Mr. Christiansen said Mr. Arfmann had sustained an injury to his back prior to employment with the City. Chapter 185 of the Pension Plan does not provide for pre-existing condition exclusions. Mr. Arfmann had a physical examination prior to employment with the City and was determined to be capable of performing the duties of a police officer. A specific injury involving an arrest while employed with Clearwater affected his ability to continue to do the job. In response to a question, Mr. Christiansen said if Mr. Arfmann accepts future employment commensurate with the function of a police officer, he would be required to see a doctor to determine his physical status. Should he refuse to see a doctor for a physical evaluation when requested by the City, his disability could be discontinued. He would continue to be subject to recall for duty by the City up to his retirement age. Member Lee moved to approve Neil Arfmann’s request for a job-connected disability pension. The motion was duly seconded and carried unanimously. James Kleinsorge – Request to Buy Back Pension Service Credit Mr. O’Rourke said staff is requesting this item be tabled to the next meeting. Member Johnson moved to continue Item 5b to the next meeting. The motion was duly seconded and carried unanimously. Police Chief/Deputy Police Chief Pension Issue Stephen Cypen, Cypen & Cypen, reviewed his firm’s experience. He said the City has retained him to give a legal opinion regarding Police Chief Sid Klein and Deputy Police Chief William Baird’s pension requests. He said he has not been lobbied by anyone, does not know the financial conclusions that would occur as a result of his opinion, and is merely providing a legal opinion. Mr. Cypen said under a section of Florida Statute 185.15, which has since been repealed, both the Chief and the Deputy Chief clearly opted not to participate in the Employees’ Pension Plan. Their actions met the City’s Pension Plan definition of employees who are in unclassified positions to make arrangements pursuant to their contracts, which they did. He said in one case, there is a specific provision affirmatively stating both employees are not to be included in the Pension Plan. In the other case, benefits are clearly listed and those not listed would obviously be excluded by implication. Andra Dreyfus, representative for Police Chief Klein and Deputy Police Chief William Baird, said she disagrees with Mr. Cypen. She said Chief Klein’s first attempt to apply for inclusion in the Police Supplementary Pension Plan was in the early 1980s. At that time, the City Attorney rendered an opinion that he may be in the Plan. Ms. Dreyfus said throughout his career, Chief Klein made attempts for inclusion into the plan. He also was told in order to participate in the Supplementary Pension Plan, he would have to be a participant in the Employees’ Pension Plan. She said both Chief Klein and Deputy Chief Baird are governed under Section 185 of Florida Statutes which deals with sworn Police Officers’ ability to participate in the Supplementary Pension Plan. Ms. Dreyfus said Chapter 185.15 of Florida Statutes states “Any person who enters the employment of any incorporated municipality of the state as a police officer after July 31, 1953, and who does not desire to accept the provisions of this chapter shall, within twelve months after employment, notify the officer or board paying the salary of such police officer, in writing, to that effect. Thereupon, it shall be the duty of the board of trustees to refund from the municipal police officer’s retirement trust fund the full amount, without interest, withheld from such police officer’s salary and deposit it into such fund. Thenceforward no withholding shall be made from such salary and all such police officers who have given such notice shall be barred from participating in the retirement system.” Ms. Dreyfus said neither Chief Klein or Deputy Chief Baird notified the City that they affirmatively did not wish to participate in the Employees’ Pension Plan. She said this Statute was later repealed. Chief Klein made good faith attempts via applications to participate in the Supplementary Pension Plan and was told he may be able to participate. Ms. Dreyfus said statutory law takes precedence over a City ordinance. She said the City cannot enact an ordinance that is contrary to statutory law. She said Deputy Chief Baird was never given the opportunity to make a decision to make application to the Employees’ Pension Plan and his case should be treated differently than Chief Klein’s case. In response to a question, Ms. Dreyfus said she has documentation of application attempts made by Chief Klein for the Supplementary Pension Plan. Mr. O’Rourke noted records for such an application are kept in the Police Supplementary Pension Plan records, not in personnel files. In response to a question, Mr. Cypen said the records relating to the alleged applications by Chief Klein would probably confirm his legal conclusion that he was not eligible for inclusion in to the Employee’s Pension Plan. Mr. Christiansen said there is a substantial file in the Supplemental Pension Plan file that outlines activity regarding Chief Klein’s application years ago. In response to a question, Mr. Christiansen said the ability to make application to the Supplementary Pension Plan is contingent upon being in the Employee’s Pension Plan. In response to a question, Mr. Cypen said he remains of the opinion that there may have been some specific rights and time limits, which would bolster his opinion. He said his opinion is based upon the law dictating this result if there had never been an application before today. He felt previous applications would indicate Chief Klein and Deputy Chief Baird sought their rights, were told those rights did not exist, then did nothing to pursue them in a timely manner. It was noted that various employment contracts with various City Managers signed by Chief Klein and Chief Baird indicate their agreement to available benefits. It was remarked this matter has been ongoing for some time and a conclusion must be made. The PAC is an advisory board to the Pension Trustees Committee, who will make the final decision. It was suggested making a determination and recommendation to the Pension Trustees today. In response to a question, Ms. Dreyfus said her clients do not wish to delay the PAC’s recommendation for the purpose of providing further documentation. Member Hart moved to deny Police Chief Klein’s application for inclusion into the Supplementary Pension Plan. The motion was duly seconded and carried unanimously. Mr. Cypen requested Ms. Dreyfus clarify which Pension Plan Deputy Chief Baird applied to in 1998. Ms. Dreyfus said Deputy Chief Baird began work with the Police Department on February 14, 1998. He worked in another division of the City prior to that time. She said he was not given the opportunity to participate in the Employee’s Pension Plan at that time, even though Florida Statutes provided him the opportunity to do so as a sworn police officer. Mr. O’Rourke said the date of Mr. Baird’s contract was February 22, 1998, however, the effective date of employment as a police officer was February 14, 1998. Mr. Cypen said by virtue of his contract, Mr. Baird would have been advised of his rights. It appears there are no requests prior to the most recent request for inclusion into the Employees’ Pension Plan or the Supplementary Pension Plan by Deputy Chief Baird. In response to a question, Ms. Dreyfus said Deputy Chief Baird applied for inclusion into the Employees’ Pension Plan last year. She said he was not given the option to participate in the plan at the time he transferred from another department. It was noted that his request was two and a half years after he signed his contract with the former City Manager. Mr. Cypen said the definition in the Employees’ Pension Plan includes language regarding exclusion of unclassified police and firefighters as well as other unclassified general employees. Therefore, Mr. Baird was unclassified in both positions and was never eligible to participate in the Employees Pension Plan. Ms. Dreyfus disagreed with Mr. Cypen, stating Florida Statute provides for Mr. Baird to have the option to participate in the Employees’ Pension Plan. She said Mr. Baird’s situation is different than Chief Klein’s, because of the state of the law at the time. Mr. Baird did not affirmatively turn down the option to participate in the plan. It was remarked that under Chief Klein’s contract, it was specifically stated that he was not eligible for the Employees’ Pension Plan, however, Mr. Baird’s contract did not mention eligibility or ineligibility. Mr. Cypen said as the documents provided to Mr. Baird did not indicate his eligibility into the Employees’ Pension Plan, he was not eligible. Member Hart moved to deny Deputy Chief William Baird’s request for inclusion in to the Employees’ Pension Plan. The motion was duly seconded and carried unanimously. ITEM #6 – Director’s Reports Mr. O’Rourke said a special election to fill an open PAC seat will be held in March. Member Greer has agreed to remain on the PAC until that time. A special Pension Trustees meeting is scheduled for 9:00 a.m. on January 25, 2001, to discuss Police Chief Sid Klein’s pension request. ITEM #7 – Committee Members to be Heard Member Greer expressed concern regarding the method of pension choices by eligible employees who experience untimely death prior to selection of an option or the effective date. The default option that would automatically be awarded the employee’s family would be 100% of the eligible benefits to the spouse for a five-year period, which would be reduced to 50% thereafter. Mr. O’Rourke said staff will present a number of proposed changes to the PAC regarding such matters. In response to a question, he said staff does not consider changing the Pension Plan every time an unfortunate situation occurs. It was remarked that the untimely death issue has been discussed previously but not rectified to date. In response to a question, Mr. O’Rourke said retirees are eligible to continue life insurance benefits upon retirement by paying the entire premium costs after separation. ITEM #8 – Adjournment The meeting adjourned at 10:25 a.m.