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08-16-1988 Regular Meeting• • Miami Shores Village Pension Board Meeting of August 16, 1988 The meeting of the Village of Miami Miami Shores Pension Board was called to order Mayor Spero Canton at 8:02 a.m. The following were in attendance: Board Members Also Present Mayor Spero Canton Mr. William Walker Sgt. Jack Ulmer Mr. Elly Johnson Dr. Robert Butler Ms. Patricia Varney Mr. William Fann, Village Attorney Ms. Gail Macdonald, Plan Administrator Ms. Karen Cole and Mr. David Newman of Kidder Peabody Ms. Ann Held and Mr. R. Scott Givens of NCNB Mr. Bill Eickhoff of Eickhoff & Pieper Mr. Wally Wilson of The Wyatt Company 1. The Quarterly Investment Review Presentation by Ms. Karen Cole and Mr. David Newman Kidder Peabody Ms. Cole reported that the overall performance of the fund is up 3.2% from last quarter and is stable. Presentation by Mr. Bill Eickhoff - Eickhoff & Pieper Mr. Eickhoff indicated that the fund was being handled conservatively with the anticipation of the PResidential election. The Plan was performing well and is stable. by Presentation by Ms. Ann Held & Mr. Scott Givens - NCNB Mr. Givens reported to the Board that inflation was building across the country but the economy was strong and that NCNB was taking a cautious posture with the Pension Plan. 2. Approval of NCNB Quarterly Fees Mr. Johnson made a motion to approve the quarterly fees that were presented by NCNB. Mr. Walker seconded the motion and the motion passed unanimously. 3. Approval of Eickhoff & Pieper Quarterly Fees Mr. Walker made a motion to approve the quarterly fees that were presented by Eickhoff & Pieper, Mr. Johnson seconded the motion and the motion passed unanimously. 4. Approval of the Minutes from Mr:'Johnson made a motion to meeting. Sgt. Ulmer seconded the. July 12, 1988 Pension Board Meeting. approve the minutes of the July 12, 1988 Pension Board the motion and the motion passed unanimously. Pension Board Minutes August 16, 1988 Page 2 5. Old Business Mr. Johnson reviewed with the Board the report submitted by Carson & Linn with regard to the ruling by the State on the Police Pension Appeal. (Copies attached) • 6. New Business Mr. Wally Wilson addressed the Board and requested a pre -evaluation Actuarial meet- ing with the Pension Board at their next meeting to be held on November 15, 1988. The Board granted the meeting. 7. Adjournment Mr. Walker made a motion to adjourn the meeting. The motion was seconded by Ms. Varney and the meeting adjourned at 9:02 a.m. Elly on, Secretary • LEONARD A. CARSON JAMES W. LINN JOHN D.C. NEWTON, II MICHAEL WM. MORELL LUCILLE E. TURNER • CARSON & LINN, P. A. LAWYERS MAHAN STATION 1711 - D MAHAN DRIVE TALLAHASSEE, FLORIDA 32308 (904) 878-2057 TELECOPIER (904) 877-1000 July 21, 1988 Mr. Elly F. Johnson Village Manager Miami Shores Village 10050 N.E. Second Ave. Miami Shores, FL 33138 Re: Police Pension Appeal Dear Elly: JAMES C. ADKINS OF COUNSEL On July 7, 1988, the First District Court of Appeal issued an opinion in the case of City of Orlando, et al. v. State of Florida Department of Insurance, et al., Case No. 87-1409. This is the case in which we represented Miami Shores Village and the Miami Shores Village Pension Board as amicus curiae ("friends of the court"). We recently sent you a copy of the District Court's opinion under separate cover. The case, which had been brought by the City of Orlando and a number of other cities, challenged the constitutionality of the 1986 amendments to Chapters 175 and.185, Florida Statutes -- the laws governing municipal police and firefighter pension plans. The trial court upheld the statute's constitutionality, and in addition ruled: (1) that all municipalities had to comply with the provisions of Chapters 175. and 185, regardless of whether they receive state premium tax revenues under those statutes; and (2) that elected and appointed municipal officials were precluded from serving on police/firefighter pension boards by the dual office -holding prohibition in the Florida Constitution. As amicus curiae on appeal, we chose to focus our argument on the two additional rulings of the trial court (the other city - appellants argued extensively that the 1986 amendments were unconstitutional). In its opinion, the First District Court affirmed the trial court's ruling that the 1986 amendments did not violate the Constitution. However, the District Court specifically addressed the two issues we raised, holding: 1. That only those cities which participate in the premium tax funding mechanism of Chapters 175 and 185 are required to comply with the statutory requirements; and • Page Two Mr. Johnson July 21 2. That municipal officials, including elected or appointed officials, can be appointed by the local legislative body to serve as the municipality's representatives on police and firefighter pension boards. The court specifically found that "there is nothing inherently inconsistent or incompatible in service by municipal officials on these boards... ." Obviously, we are pleased that the District Court ruled in our favor on the two points we raised. At this time we do not know whether any of the parties in the case will move for rehearing or seek review by the Florida Supreme Court. We will continue to apprise you of developments in the case. With best personal regards, I am Sincerely, CARSON & LINN, P.A. JWL:ifa cc: Gail McDonald, Finance Director CARSON & LINK', P. A. LAWYERS. LEONARD A. CARSON JAMES W. LINN JOHN D.C. NEWTON, II MICHAEL WM. MORELL LUCILLE E. TURNER CARSON & LINN, P. A. LAWYERS MAHAN STATION 1711 - D MAHAN DRIVE TALLAHASSEE, FLORIDA 32308 (904) 878-2037 TELECOPIER (904) 877-1000 TO: FLORIDA MUNICIPAL CLIENTS FROM: CARSON & LINN, P.A. DATE: July 22, 1988 J JAMES C. ADKINS OF COUNSEL RE: Recent Court Decision Concerning Police and Fire - Fighter Pension Funds On July 7, 1988, the First District -Court of -Appeal -issued - an opinion in the case of City of Orlando. et al. v. State of Florida Department of Insurance, et al; Case No. 87-1409. In this case the City of Orlando and a number of other cities challenged the constitutionality of the 1986 amendments to Chapters 175 and 185 Florida Statutes, the laws governing municipal police and firefighter pension funds. A copy of the court's opinion is attached. In essence, the district court affirmed the trial court's ruling that the 1986 amendments do not violate the Constitution. However, the district court also made two important rulings: 1. The district court ruled that the pension program created by Chapters 175 and 185 is purely voluntary for participating cities. Only those cities which participate in the premium tax funding mechanism under Chapters 175 and 185 are required to comply with the provisions of those. chapters. In the words of the court, "cities may opt into or out of such plans at their discretion." This means that cities which decide to establish pension programs that do not conform to the statutory requirements -- such as a deferred compensation program -- may do so. Of course, cities which opt out of the Chapter 175 and 185 program would have to give up the premium tax revenues provided under those statutes. 2. The district court reversed the trial court's holding that the dual office -holding clause of the Florida Constitution precludes municipal officials from serving on police and firefighter pension boards. The district court specifically found that "there is nothing inherently inconsistent or incompatible in service by municipal officials on these boards..." Thus, elected and appointed city officials may continue to serve on police/firefighter pension boards. • It is anticipated that the appellant cities will move for rehearing of the court's decision on the constitutionality of the 1986 amendments, and/or seek review in the Florida Supreme Court. We will advise you if the district court's decision is modified or reversed. Please let us know if you have any specific questions concerning this case. JWL:ifa Attachment CARSON & LINN, P. A. .410NM s THE CITY OF ORLANDO; THE CITY OF BRADENTON; THE CITY OF FERNANDINA BEACH; THE CITY OF PLANT CITY; THE CITY OF PANAMA CITY BEACH; AND THE CITY OF DAYTONA BEACH, Appellants, v. STATE OF FLORIDA DEPARTMENT OF INSURANCE; and BILL GUNTER as INSURANCE COMMISSIONER OF THE STATE OF FLORIDA, Appellees. IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES * TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF * FILED. * CASE NO. 87-1409 * * * * * Opinion filed July 7, 1988. Appeal from the Circuit Court for Leon County Charles Miner, Judge. James C. Massie, Tallahassee, for Appellants. Gabriel Mazzeo, Tallahassee; Richard A. Sicking of Kaplan, Sicking & Bloom, Miami; Robert D. Klausner of Robert D. Klausner, P.A., Hollywood, for Appellees. James R. Wolf, Tallahassee; James W. Linn and Lucille E. Turner of Carson & Linn, P.A., Tallahassee, for Amicus Curiae. BARFIELD, J. Appellants seek review of an order finding Chapters 86-41 and 86-42, Laws cf Florida, amending Chapters 175 and 185, Florida Statutes (1985) respectively, to be facially constitutional. We affirm, with one exception, the trial court's determination the Acts do not violate constitutional tenets. Chapters 175 and 185 create a purely voluntary program whereby municipalities may receive state -collected taxes, imposed on property and casualty insurance premiums, with which to fund retirement programs for local police and firefighters. In exchange for receipt of these funds, the legislature has established certain criteria under which the funds must be operated and managed. The cities may opt into or out of such plans at their discretion. As the program is not mandatory as to any city's participation, we find nothing that, renders the amended statutes to be facially unconstitutional. that However, we both Chapters 5(a), Florida reverse that portion of the order finding 86-41 and 86-42 and Article II, Section Constitution, precluded municipal officials barring dual officeholding, from serving on the Boards of Trustees of the. respective municipal police and firefighters pension trust funds. The legislative history, submitted to this Court without objection, reflects the legislative intent that elected or appointed officials could be appointed by the local legislative body to serve as the municipality's representatives on the Boards. Further, there is nothing inherently inconsistent or incompatible in service by municipal officials on these Boards so as to say that it 2 presumptively violates the prohibition against dual officeholding in Article II, Section 5(a). Bath Club, Inc. v. Dade County, 394 So.2d 110 (Fla. 1981) ; Grvzik v. State, 380_ • So.2d 1102 (Fla. 1st DCA), oetition for review denied, 388 • So.2d 1113 (Fla. 1980). ,Such determination must be made on a case-by-case basis as to each Board or individual trustee. Accordingly, the trial court's order is AFFIRMED in part and REVERSED in part. THOMPSON AND NIMMONS, JJ., CONCUR. 3 IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA THE CITY OF ORLANDO; THE ) CITY OF BRADENTON; THE CITY ) OF FERNANDINA BEACH; THE ) CITY OF PLANT CITY; THE ) III CITY OF PANAMA CITY BEACH; ) AND THE CITY OF DAYTONA BEACH,) Appellants, ) ) v. ) CASE NO. 87-1409 ) STATE OF FLORIDA DEPARTMENT ) OF INSURANCE; and BILL GUNTER ) as INSURANCE COMMISSIONER OI' ) THE STATE OF FLORIDA, ) Appellees. ) ) • APPELLANTS' ALTERNATIVE MOTION FOR REHEARING OR FOR CERTIFICATION Appellants, The City of Orlando, The City of Bradenton, The City of Fernandina Beach, The City of Plant City, The City of Panama City Beach, and The City of Daytona Beach, pursuant to Rule 9.330, Fla.R.App.P., respectfully move this Court to grant rehearing in this cause. In the alternative, Appellants move this Court to certify the question presented below to the Supreme Court of Florida pursuant to Rule 9.030(a)(=)(A)(v), F1a.R.App.P. As grounds for the alternative motions, Appellants state: 1. This Court, in its opinion filed July 7, 1988, found that As the program is not mandatory as to any city's participation, we find nothing that renders the mended statutes to be facially unconstitutional. Appellants respectfully submit that in making the above finding this .Court has overlooked or misapprehended the point of law that once the Legislature has elected to establish a State program, ..even where participation in that prc;ram- .is voluntary, the Legislature may not require that participation to be . in Compliance subject to to:uneonstituttonai ednditIo._... r , Or, ;,o exp reSs the proposi tion of i.aw manner-. ;;:'pile the 7-4. c7'a-7—e Ir.'s' -h::e the complete authority to with in another on utilization of that privilege which violate the tenets of the Constitution. See Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Simmons v. Division of Pari -mutual Wagering, 40,7 So.2d 269,270 footnote 3 (Fla. 3d DCA. 1981); City of Alex- andria v. Texas Co., 1 S.E.2d 296, 172 Va.209 (Va. 1939). 2. We express a belief, based upon a reasoned and studied professional judgment, that the decision of this Court is of great and exceptional public importance. The effect of the decision is to dramatically change the relationship between cities and boards of trustees of police _ and fire pension funds by permitting independent non -elective - boards, in their sole discretion, to.incur financialobligations which are unlimited in scope and which will ultimately have to be funded by revenue derived from taxation levied by municipal governing bodies. This will have not only a great effect on hundreds of Florida municipal governments, but will also have an effect on millions of municipal taxpayers and thousands of current and former employees who are membersofthe police and firepension plans. • Accordingly, in the alternative we respectfully request that this Court certify the following question to the Florida Supreme Court pursuant to Rule 9.030(a)(2)(A)(v), Fla.R.App.P., as one of great public importance: Whether the voluntary nature of a City's participation in a State program renders moot any possible unconstitutional conditions the Legislature may have required for participation; and, if not,. Whether statutes are unconstitutional which establish independent non -elective adminis- trative boards with the authority to create unlimited debts which ultimately must be .funded -by revenue. derived from taxes levied by municipal governing bodies. • WHEREFORE, Appellants respectfully request this Court to grant Appellants' Motion for Rehearing, or in the alternative, to certifythe question tothe Florida Supreme Court as one of great public importance.. Respectfully submitted, JAMES C. MASSIE assie & Scott P. 0. Box 10371 Tallahassee, FL 32302 (904) 222-8021 Attorney for Appellant Cities CERTIFICATE OFF -SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. Mail to the following_ on this the 22nd day of July, 1988. Gabriel Mazzeo Legal Division Department of Insurance -413-B Larson Building Tallahassee, FL 32399-0300. Robert Butterworth Attorney General The Capitol Tallahassee, FL 32399-1050 Richard A. Sicking, Esq. P,. 0. Drawer 520337 Miami, FL 33152 Robert L. Hamilton • City .Attorney City of Orlando Post Office Box 1007 Orlando, FL 32802 Frank B. Gummey.Ill City.Attorney City of Daytona Beach Post Office Box 551 Daytona Beach, FL 32015 Wesley R. Poole City Attorney -City of Fernandina Beach Past Office Box P Fernandina Beach, FL:32034 Robert D. - Klausner, Esq. 1922 Tyler Street Hollywood, FL 33020 Paul S. Buchman City Attorney City of Plant City Post Office Box 5 Plant City, FL 34289 William R. Lisch City Attorney City of Bradenton 519 13th Street, West Bradenton, FL 33505 Douglas J. Sale City Attorney City of Panama City Beach P. 0. Box 426 Panama City Beach, FL 32402 James R. Wolf General Counsel Florida League of Cities Post Office Box 1757 Tallahassee, FL 32302 James W. Linn Leonard A: Carson Lucille Turner Carson &"Linn, P.A. 1711-D-. Mahan Drive 'Tallahassee, FL 32308 / /%