Childers’ attorneys respond in BCC retirement case

The Escambia County Board of County Commissioners received this filing yesterday. For background, read The BCC’s case against Childers.

IN THE CIRCUIT COURT IN AND FOR ESCAMBIA COUNTY, FLORIDA CIVIL DIVISION

ESCAMBIA COUNTY,

Plaintiff,

vs. CASE NO.: 2022 CA 000141

PAM CHILDERS,

Clerk of the Circuit Court and Comptroller for Escambia County,

Defendant.

______________________________________

CLERK OF CIRCUIT COURT’S RESPONSE TO ALTERNATIVE WRIT OF MANDAMUS

Defendant, Pam Childers, Clerk of the Circuit Court and Comptroller for Escambia County, Florida, (the “Clerk”) hereby responds to the Alternative Writ of Mandamus (the “Alternative Writ”). This response is filed subject to, and without waiving, the Motion to Quash Alternative Writ of Mandamus (the “Motion to Quash”). The responses and showings of good cause set forth in or contemplated by the Motion to Quash are incorporated herein and deemed a part of this response.

The Amended Complaint for Writ of Mandamus (the “Amended Complaint”) was incorporated by reference into the Alternative Writ. The numbered paragraphs, below, correspond to the numbered paragraphs of the Amended Complaint. The allegations in the Amended Complaint are restated below, verbatim, followed by the Clerk’s responses thereto. All allegations in the Amended Complaint that are not specifically admitted herein are to be deemed as having been denied.

Page 1 of 42

Prefatory Statement:

As stated by the Florida Supreme Court in Alachua County v. Powers, 351 So. 2d 32, 36 (1977):

The clerk, as auditor, is required by law to refuse to sign and deliver a county warrant for an unlawful expenditure, even though approved by the board of county commissioners. [Citation omitted.] Although an appropriation of county funds may serve a county purpose, there must be some type of pre-audit review of the disbursement in order to be sure that the funds will not be used for an unlawful purpose. (Emphasis added.)

Moreover, in elaborating on the great public importance of the responsibilities of a county clerk’s discretionary responsibilities as county auditor, the Fourth DCA said:

The public has every right to be concerned with the legitimacy of each and every payment involved in this project. The taxpayers look to the clerk’s audits to shield them from the kinds of misuse of public funds that have recently surfaced in other Florida communities and in other jurisdictions. They fervently hope his ministrations will be an effective antidote to several political maladies found in other communities: the soap syndrome—one hand washes the other; complacency— be concerned only when someone gets caught, and lockjaw — don’t rock the boat. If there is potential for public harm in what the clerk seeks to achieve in this case, the trial court did not perceive it nor do we.

W and F Ltd. V. Dunkle, 444 So. 2d 554, 558 (Fla. 4th DCA 1984) Similarly, the Second DCA has held:

Prior to signing any warrant for the payment of any claim, bill or indebtedness from county funds, the Clerk is required to insure that the payment is lawful. Consequently, any auditing necessary to insure the legality of the expenditure prior to the payment is proper.

Brock v. Board of County Com’rs of Collier County, 21 So. 3d 844, 846 (2nd DCA 2009)

And the Florida Attorney General, addressing a situation identical to that proposed herein by Escambia County, explained:

… pursuant to s. 5(c), Art. II, State Const., “[t]he … compensation … of … county officers shall be fixed by law,” i.e., a law (special or general) enacted by the State Legislature. As this office commented in AGO 81–7… “it appears that the Constitution requires that the compensation or salaries of all county officers … ‘shall be fixed by law.’ ” Thus, counties have no independent authority to set the compensation of county officers.

Chapter 145, F.S., represents the Legislature’s enabling scheme for the requirement in s. 5(c), Art, II, State Const. This chapter was enacted “to provide for the annual compensation and method of payment for the several county officers named herein.”

Section 145.031, F.S., provides the compensation to be paid to members of the board of county commissioners. As with the salaries of other county officials prescribed in this chapter, the salaries for county commissioners are based on the population of the county in which they serve. As discussed above, the moneys which are contributed to the state retirement system by the county on behalf of an officer or employee represent a part of an official’s total compensation.

Thus, in the absence of specific statutory authority for a county’s contribution to a private retirement fund on behalf of a county commissioner, such a contribution would appear to be additional, unauthorized compensation. Because the compensation of a member of a board of county commissioners must be fixed by general law …, the payment of county funds into a private retirement fund not authorized by general law is prohibited. (Emphasis added.)

Attorney General Opinion 91-68 (Sept. 13, 1991)
Subject to the foregoing, the Clerk answers and responds to the Alternative Writ,

as follows:

1. Allegation in Complaint: “This is an action for issuance of a writ of mandamus to the Clerk, ordering her to resume her ministerial duties and to comply with County ordinances and State law. Specifically, the County seeks to have the Clerk resume her longstanding practice of making payments of County money to the retirement plan the County established. The Clerk is required to do this by a County ordinance, a binding contract entered into in 1997 between the County and the ICMA Retirement Corporation (or just “ICMA”), and the Florida statute requiring the Clerk to act as the Board of Commissioners’ clerk and accountant.”

Clerk’s Answer: Admitted this is an action in mandamus directed at the Escambia County Clerk of Court and Comptroller (the “Clerk) and that the Clerk, among other duties, is the accountant to the Escambia County Board of County Commissioners (the “Board”); otherwise denied.

2. Allegation in Complaint: “The Clerk’s sole function with respect to the County’s retirement plan is to issue checks on behalf of the County to the County’s designated investment company.”

Clerk’s Answer: Denied. As auditor of all County funds, Florida Statutes require, and decisions of the Florida Supreme Court and the First District Court of Appeals (one of which involves the Escambia County Board of County Commissioners) confirm, that before approving a County expenditure the Clerk must exercise her discretion to first determine that the expenditure is lawful. The Clerk is expressly prohibited from approving an illegal expenditure.

3. Allegation in Complaint: “Despite honoring her obligations for years, in the summer of 2021 the Clerk made the unilateral decision to cut payments to an arbitrary reduced rate, and then in 2022 decided to discontinue them entirely. Nothing has changed about the longstanding investment contract or the law to explain the Clerk’s unilateral decisions. But in the same summer 2021 timeframe, the Clerk aired in writing that she has personal and political disagreements with three members of the Board of Commissioners. As it so happens, three members of the Board are affected by the Clerk’s unilateral decision, including two of those the Clerk has the disagreement with.”

Clerk’s Answer: Denied. It is admitted, however, that the Clerk determined that the contributions to the private ICMA Plan for the benefit of Commissioners Barry, Bender, and May were not authorized by general law and, as such, were unlawful. Further admitted that the Clerk, having exercised the discretionary judgment instilled upon her office as auditor of Escambia County and custodian of the public’s funds, and having determined that the contributions were unlawful, has declined to approve further contributions to the ICMA Plan for the benefit of Commissioners Barry, Bender, and May.

4. Allegation in Complaint: “Other than the three Commissioners, no other County employee has had their retirement contributions cut by the Clerk.”

Clerk’s Answer: Admitted that the Clerk ceased payments to the ICMA for the benefit of Commissioners Barry, May, and Bender. Admitted there was no cessation of payments for Senior Management Service Employees (“SMSC”) who participate in the private ICMA Plan.

Of course, for the Plaintiff to suggest inconsistency between the Clerk refusing private retirement plan contributions for Commissioners Barry, Bender, and May but not for any other County employee, ignores the Constitutional genesis for the Clerk’s actions. Article V, Section 2(c), of the Florida Constitution requires the compensation of elected county officials “to be fixed by law.” It does not address compensation of County employees (i.e., unelected county officials). Here, contributions for Commissioners Barry, Bender, and May to a private retirement plan is not a manner of compensation that was “fixed by law;” thus the Clerk’s actions to decline payment.

5. Allegation in Complaint: “The Clerk has no discretionary authority to refuse to honor the County’s contract with ICMA. On the contrary, the Clerk’s duty to honor the contract is purely ministerial.”

Clerk’s Answer: Denied that the Clerk exercises no discretion as ex officio county auditor. Denied that the Clerk’s duty is purely ministerial. To the contrary, as auditor of all County funds, that before approving a County expenditure the Clerk must exercise her pre-payment audit discretion to first determine that the expenditure is lawful. The Clerk is expressly prohibited from approving an illegal expenditure. See the Prefatory Statement, above. See, also, Defendant’s “Motion to Quash.”

6. Allegation in Complaint: “The Clerk has failed to uphold the duties of her office. Mandamus is the appropriate relief and a writ should be issued as soon as possible.”

Clerk’s Answer: Denied that the Clerk has failed to uphold the duties of her office. Denied that mandamus is the appropriate cause of action and that a peremptory writ of mandamus should be issued.

7. Allegation in Complaint: “This Court has jurisdiction under Article V, Section 5(b) of the Constitution of the State of Florida and under Fla. R. Civ. P. 1.630.”

Clerk’s Answer: Admitted that Circuit Courts in Florida have jurisdiction over mandamus proceedings; however, it is denied that this is a valid proceeding for mandamus. A writ of mandamus cannot be directed to require an official to perform an act that involves the exercise of discretion.

8. Allegation in Complaint: “This is the proper venue. The grounds for this complaint arose in Escambia County, all parties are domiciled in Escambia County, and the County/ICMA contract is to be performed in Escambia County.”

Clerk’s Answer: Admitted.
9. Allegation in Complaint: “Escambia County is governed by the Escambia

County Board of Commissioners (the “Board”) and is a political subdivision of the state of Florida and has all powers accorded to it pursuant to Chapter 125, Fla. Stat. and its home-rule authority.”

Clerk’s Answer: Admitted, except that the County’s home rule authority is expressly limited by VII, Sec. 1(f) of the Florida Constitution to enact ordinances that are not inconsistent with general or special law.

10. Allegation in Complaint: “The Clerk is the Clerk of the Circuit Court and Comptroller for Escambia County, an elected County official under Article V, Section 16 and Article VIII, Section l(d) of the Florida Constitution and Chapter 28, Fla. Stat.”

Clerk’s Answer: Admitted.

11. Allegation in Complaint: “In Section 121.182, Fla. Stat., the Legislature authorized counties to create local supplemental retirement programs.”

Clerk’s Answer: Denied. This allegation is deceptive as it references only a few words of Section 121.182 and uses them out of context. The full sentence in Section 121.182, Fla. Stat., states: “Municipalities and counties are authorized to invest funds, purchase annuities, or provide local supplemental retirement programs for purposes of providing annuities for city or county personnel.” Thus, Section 121.182 allows counties to provide supplemental retirement programs for the purpose of providing annuities to county personnel. The ICMA Plan is not a program that provides annuities (i.e., a defined benefit plan); rather, it is a defined contribution plan. Moreover, it is clear that Section 121.182 – considering all six sentences of the statute, not simply a few words taken out of context from one sentence– (i) not only pertains to providing “annuities” to certain personnel, but also (ii) Commissioners Barry, Bender, and May are clearly NOT persons contemplated by the statute for whom the annuities may be purchased.

12. Allegation in Complaint: “In Section 121.182, Fla. Stat., the Legislature also authorized counties to invest funds, purchase annuities, or provide local supplemental retirement programs.”

Clerk’s Answer: Admitted in part and denied in part. The Legislature authorized counties to invest funds, purchase annuities, or provide local supplemental retirement programs, but the investment of funds, purchase of annuities, or local supplemental retirement programs are for the purposes of providing annuities to the personnel identified in statute. The Escambia County Commissioners are not included within the scope of County personnel for whom the annuities may be purchased.

13. Allegation in Complaint: “Section 121.182’s sole requirement is that any local supplemental retirement program established thereunder must comply with Art. X, Section 14 of the Florida Constitution, which requires that the program be actuarially sound.”

Clerk’s Answer: Denied. Section 121.182, Fla. Stat., states “All retirement annuities shall comply with Sec. 14, Art. X of the State Constitution.” The County has not satisfied the Constitutionally-required “actuarial soundness” mandate. Further, the supplemental retirement programs contemplated by Section 121.182 are limited to the purpose of providing annuities for certain County personnel (which do not include Commissioners Barry, Bender, and May).

14. Allegation in Complaint: “Escambia County created such a supplemental retirement program on January 7, 1997, by passing Resolution (R97-1) “Relating to a Money Purchase plan authorizing the establishment of a money purchase plan.” Ex. 1.”

Clerk’s Answer: Denied. Ordinances creating the Plan can be traced back to 1994. Further, as it pertains to retirement benefits for Escambia County Commissioners, the said ICMA Plan does not meet the requirements of Section 121.182.

Florida Statutes Ch. 145 reserves to the State, and not individual counties, the authority to enact laws establishing forms of compensation for county commissioners. Individual counties are prohibited from enacting their own forms of compensation for county commissioners. The Florida Legislature, explaining the need for enacting Ch. 145, stated:

… that a uniform and not arbitrary and discriminatory salary law is needed to replace the haphazard, preferential, inequitable, and probably unconstitutional local law method of paying elected county officers.

Correspondingly, to the extent that Escambia County Resolution 97-1 purports to establish a manner of compensation for Escambia County Commissioners, the Resolution is an ultra vires act and is void ab initio.

15. Allegation in Complaint: “R97-1 was codified at Section 2-151, Escambia County Code of Ordinances. Ex. 2.”

Clerk’s Answer: Admitted.
16. Allegation in Complaint: “R97-1 was duly adopted by the Board and all

formalities necessary to enact that resolution were observed.”

Clerk’s Answer: Without knowledge and therefore denied.
17. Allegation in Complaint: “Finally, in connection with R97-1, the County

entered into a contract with ICMA Retirement Corporation for the establishment of a supplemental local retirement program. Ex. 1, at p. 4.”

Clerk’s Answer: Admitted that the County entered into a contract with ICMA and that such contract is in connection with Escambia County Resolution 97-1; otherwise denied.

18. Allegation in Complaint: “The January 7, 1997 contract with ICMA was signed by the then- County Administrator and Clerk of Circuit Court.”

Clerk’s Answer: Admitted that the former County Administrator signed a contract between the County and ICMA dated January 7, 1997. Admitted that a Deputy Clerk attested to the signature of the County Administrator and such attestation necessitates a signature which appears below the signature of the County Administrator on the referenced ICMA contract.

19. Allegation in Complaint: “The 1997 County/ICMA contract was duly executed and all formalities necessary to form a contract were performed.”

Clerk’s Answer: Without knowledge; therefore, denied.
20. Allegation in Complaint: “In this complaint, the County will refer to these 1997 activities as having created the County’s “Local Plan,” and the contract-including

successive, non-material amendments and extensions-as the “County/ICMA” contract.”

Clerk’s Answer: In this Answer the Clerk will refer to the local retirement plan created by the County as the “ICMA Plan” or the “Plan.” Such references do not imply that the Plan was created in 1997. The Clerk will refer to the contracts between the County and ICMA as the “ICMA Contract” with each respective date of execution – January 7, 1997; December 29, 1997; or March 3, 2016. Collectively the contracts will be referred to as the “three ICMA Contracts.” The remaining allegations in this paragraph are denied, including that the amendments between the three ICMA contracts are non-material.

21. Allegation in Complaint: “The Local Plan is sometimes also referred to as a “40l(a) program,” meaning that it meets criteria established in 26 U.S.C. § 401(a), the Internal Revenue Code.”

Clerk’s Answer: Admitted the ICMA Plan is sometimes referred to as the “401(a) program.” Without knowledge, and therefore denied, as to whether the Plan meets the criteria established in 26 U.S.C. § 401(a). The ICMA Plan is a private plan that is not (i) part of the Florida Retirement System, (ii) administered by the Florida Department of Management Services through its Division of Retirement, or (iii) overseen by the Florida State Board of Administration.

22. Allegation in Complaint: “The County/ICMA contract created the Escambia County Money Purchase Plan Trust, which allowed management employees and Senior Management Service Employees of Escambia County Constitutional Office to participate in the Plan.”

Clerk’s Answer: Admitted that the three ICMA Contracts by their express terms all create the Escambia County Money Purchase Plan and Trust. Denied that the three ICMA Contracts allow “management employees” to participate in the Plan. Admitted the three ICMA Contracts, on their face, purport to allow Senior Management Service Class (“SMSC”) employees of Escambia County Constitutional Officers to participate in the Plan. Denied that Escambia County Commissioners are allowed by law to participate in the ICMA Plan or that the County may make retirement contributions for the benefit of Commissioners Barry, Bender, and May to the ICMA Plan.

23. Allegation in Complaint: “The Florida Retirement System (“FRS”) is a state-level agency that sets contribution amounts for local governments in Florida. The Local Plan is not part of the FRS, but it is parallel to it.”

Clerk’s Answer: Denied that the Florida Retirement System (“FRS”) is a state agency. Denied that FRS sets contribution amounts for local governments in Florida. Admitted that the ICMA Plan is not part of the FRS. Denied that the Plan is parallel to the FRS. The FRS is the state administered retirement system comprising primarily of the Florida Retirement System Pension Plan, administered by the Florida Department of Management Services (a state agency), and the Florida Retirement System Investment Plan, administered by the State Board of Administration of Florida (a state agency). The contribution rates for FRS are set by act of the Florida Legislature.

24. Allegation in Complaint: “Employees can join the Local Plan or a plan operated by the FRS, but not both, and their election to be in one system or the other is irrevocable.”

Clerk’s Answer: Denied that all employees can join the Plan. Admitted that the Plan states on its face that SMSC employees of the County can join the Plan after withdrawing from FRS and such withdrawal is irrevocable. Denied that such election to withdraw from the FRS is irrevocable for elected county officers, including Commissioners Barry, May, and Bender. Admitted that SMSC employees cannot participate in the Plan and FRS during the same service period. Denied that county elected officers can participate in the Plan.

25. Allegation in Complaint: “Upon being hired, employees choose the Local Plan or an FRS plan on a form that is given to them by the Clerk herself.”

Clerk’s Answer: Denied that all employees can join the Plan. Denied that the Clerk provides County employees with retirement election forms, including the referenced form.

26. Allegation in Complaint: “Under the County/ICMA contract, the County is bound to make employer contributions at a rate equal to the rate of contribution that would be required if participants were engaged in the Florida Retirement System.”

Clerk’s Answer: Admitted in part and denied in part. The ICMA Contracts dated – January 7, 1997 and December 29, 1997, state that the contribution rate to the Plan is“**Rate of Contribution Required per Florida Retirement System.” The ICMA Contract dated March 3, 2016 states that the contribution rate to the Plan is “**Rate of Contribution Per Florida Retirement System.” Admitted the express terms of the three ICMA Contracts purport to require the County to contribute county funds. The remainder of this paragraph is denied, including that the Plan contemplates changes in the contribution rates from those in effect when on the date the three ICMA Contracts were executed.

27. Allegation in Complaint: “As defined in this complaint, the “FRS Rate” means the rate that the County would have to pay to the Florida Retirement System if an employee were enrolled there, rather than the Local Plan.”

Clerk’s Answer: This paragraph is not an allegation, thus no response is required; yet, to the extent one is needed, this allegation is denied. For consistency, the Clerk will utilize the term FRS Rate in this Answer to mean the full rate the County would have to pay the FRS if such employee were enrolled in FRS and not the Plan.

28. Allegation in Complaint: “The County/ICMA contract was amended on December 29, 1997. In relevant part, it stated that the plan was available for “Senior Management Service Employees of Escambia County Constitutional Officers and All Elected Escambia County Officials.” Ex. 3. The contribution rate remained the same – to match the FRS Rate.”

Clerk’s Answer: Admitted that the ICMA Contract dated December 29, 1997 was an amendment of a previous contract. Admitted that quoted language accurately reflects the language set forth in the contract. Admitted that the contribution rate language in the ICMA Contracts dated January 7, 1997 and December 29, 1997 are identical. Denied that the contribution rate remained the same to match the “FRS Rate” (as defined in the response to Paragraph 27, above). The rate of contribution required in 1997 as set forth in statute required the normal cost portion as a contribution to the participant while also requiring an amount equal to the unfunded actuarial accrued liability to be contributed to FRS.

29. Allegation in Complaint: “At all times, the County/ICMA contract has required the County to make employer contributions to the Trust it created, at the FRS Rate.”

Clerk’s Answer: Admitted the express terms of the three ICMA Contracts purport to require the County to contribute county funds. Denied that the ICMA Contracts dated January 7, 1997 and December 29, 1997 require contributions to the Plan at the FRS Rate. Per express statute in 1997, the FRS Rate was divided between the Plan and the unfunded actuarial lability. Denied that the ICMA Contract dated March 3, 2016 requires contributions at the FRS Rate. Admitted the County has interpreted the ICMA Contract dated March 3, 2016 to require contributions at the FRS Rate; however, denied that the ICMA Contracts contemplate that rate of contribution.

30. Allegation in Complaint: “The cost to taxpayers is the same, whether a participant is enrolled with the FRS or in the Local Plan.”

Clerk’s Answer: Denied. Allocation of the entire FRS Rate for the exclusive benefit of County Commissioners Barry, May, and Bender diverts public funds away from the unfunded actuarial liability or future debt of the FRS Pension Plan, a debt that the County carries in its comprehensive financial statements. Moreover, the cost to the taxpayers is irrelevant to the legal issue at hand, to wit: whether Escambia County is allowed by law to make retirement contributions to the ICMA Plan for Commissioners Barry, Bender, and May.

31. Allegation in Complaint: “Escambia County is a non-charter county. In Florida, non-charter counties are broadly empowered with home-rule authority.”

Clerk’s Answer: Admitted that under Art. VII, Sec. 1(f), of the Florida Constitution, Escambia County has “such power of self-governance as is provided by general or special law.” But that section of the Constitution goes on to state:

The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law…. (Emphasis added.)

Thus, a county governing body has full authority to act, through the exercise of home rule power, unless the legislature has preempted a particular subject relating to county government by either general or special law. If a statute has a general and uniform operation throughout the state, a county may not legislate on the subject unless authority is expressly granted.

32. Allegation in Complaint: “Unless the legislature has pre-empted a particular subject relating to county government by either general or special law, a non- charter county has full authority to act through the exercise of home rule power.”

Clerk’s Answer: Admitted in part and denied in part. See response to Paragraph 31, above.

33. Allegation in Complaint: “Escambia County has full authority to create and implement the Local Plan.”

Clerk’s Answer: Admitted in part and denied in part. Admitted the County has authority to contribute county funds to the Plan for SMSC employees. Denied the County has authority to create a plan whereby county funds, as opposed to salary-reduction contributions, are contributed to a local plan for the benefit of an elected officer. Further denied that Escambia County may make contributions to the ICMA Plan for the benefit of Commissioners Barry, Bender, and May because that Plan is not authorized by Florida general law (where the Florida Constitution and Florida Statutes require retirement programs for county commissioners to be expressly authorized by statute).

34. Allegation in Complaint: “The County/ICMA contract is the type of contract contemplated by Section 121.182.”

Clerk’s Answer: Denied.
35. Allegation in Complaint: “The County Commissioners had the legal

authority to enter into the ICMA contract.”

Clerk’s Answer: Admitted that the Board can enter into contracts. Admitted the Board can enter into contracts to contribute county funds to the Plan for SMSC employees. Denied that the Board can enter into a contract to contribute county funds to the Plan which for the benefit of Commissioners Barry, May, and Bender.

36. Allegation in Complaint: “The County Commissioners, acting as a Board, are the only party to properly exercise the contract authority of Escambia County.”

Clerk’s Answer: Denied. The Clerk serves as ex officio county auditor, recorder, and custodian of all county public funds. The Clerk can bind the County to contracts within her constitutional duties.

37. Allegation in Complaint: “The Clerk does not have the legal authority to bind Escambia County to a contract like the County/ICMA contract.”

Clerk’s Answer: Admitted. The ICMA Contract, dated March 3, 2016, purports to obligate actions outside the bounds of general laws of the State of Florida.

38. Allegation in Complaint: “The Clerk is not a person or official with the authority to exercise the contract authority of Escambia County.”

Clerk’s Answer: Admitted that the Clerk in her individual capacity cannot contract of behalf of Escambia County. The remainder of this paragraph is denied. The Clerk serves as ex officio county auditor, recorder, and custodian of all county public funds. The Clerk can bind the County to contracts within her constitutional duties.

39. Allegation in Complaint: “The Clerk’s duty is to disburse Escambia County funds at the direction of the Board.”

Clerk’s Answer: Admitted in part and denied in part. The Clerk’s duty is to disburse County funds after approval by the Board, but not before the Clerk in her capacity as ex officio county auditor makes a determination of the legality of the expenditure.

40. Allegation in Complaint: “The Clerk lacks the authority to refuse to disburse funds that are lawfully apportioned and approved.”

Clerk’s Answer: Denied. The Clerk, in her role as ex officio county auditor, may properly refuse payments even though such expenditure was approved by the Board. Funds that are lawfully apportioned or approved through a lawful legislative process does not imply legality of the expenditure. The Clerk is statutorily prohibited from approving unlawful County expenditures.

41. Allegation in Complaint: “The Escambia County Local Plan is no anomaly. Many other counties and cities in Florida have also implemented similar programs.”

Clerk’s Answer: Without knowledge; therefore, denied. However, it is believed that of the 67 counties in Florida (all of which have at least five commissioners, some more), there are no more than two county commissioners (excluding, of course, Commissioners Barry, Bender, and May) who participate in a private, non-FRS retirement plan such as the ICMA Plan.

42. Allegation in Complaint: “For instance, DeSoto County has implemented a plan that, like Escambia County’s Local Plan, uses a fixed contribution equal to the FRS Rate.”

Clerk’s Answer: Without knowledge; therefore, denied. Also denied to the extent this allegation suggests that because one county in Florida may participate in a private, non-FRS retirement plan for one of its county commissioners, that it is appropriate for Commissioners Barry, Bender, and May to do so.

43. Allegation in Complaint: “DeSoto County’s plan is available to all employees of DeSoto (except leased employees and part time employees). There is at least one County Commissioner who has participated in DeSoto County’s plan.”

Clerk’s Answer: Without knowledge; therefore, denied. Also denied to the extent this allegation suggests that because one county in Florida may participate in a private, non-FRS retirement plan for one of its county commissioners, that it is appropriate for Commissioners Barry, Bender, and May to do so.

44. Allegation in Complaint: “Numerous other Florida counties and municipalities also offer local plans to elected officials, including county commissioners.”

Clerk’s Answer: Denied.

45. Allegation in Complaint: “To counsel’s knowledge, no such program has ever been challenged as illegal or been disapproved of by any court in Florida.”

Clerk’s Answer: Without knowledge; therefore, denied.
46. Allegation in Complaint: “From 1997 to the beginning of June 2021, Escambia County’s Local Plan was operated without any current or former Clerk objecting to its legality.”

Clerk’s Answer: Without knowledge prior to January 2012. The Clerk did not take office until 2012. Admitted that the current Clerk did not object to Plan contributions for Commissioners Barry, May, and Bender until June of 2021. It appears that Commissioner Bender commenced participation in the ICMA Plan upon his taking office in late 2018, and that Commissioners Barry and May commenced participation in the ICMA Plan in 2021. It is denied that any other County Commissioner serving while the Clerk has been in office has participated in the ICMA Plan. The remainder of this paragraph is denied.

47. Allegation in Complaint: “During that time, the person holding the office of Clerk always calculated contributions to the Local Plan for participating Commissioners at the FRS Rate.”

Clerk’s Answer: Denied that the Clerk calculated the contribution rates for participating Commissioners. The contributions were transmitted by the County to the Clerk. Without knowledge as to remainder on this paragraph; therefore, denied.

48. Allegation in Complaint: “From 1997 until June 2021, the Clerk and each of her predecessors made all necessary payments under the County/ICMA contract at the FRS Rate.”

Clerk’s Answer: The ICMA Contracts dated January 7, 1997 and December 29, 1997, when read in conjunction with then existing statute, did not require contributions at the FRS Rate as it has been defined by Plaintiff. Admitted that the Clerk made payments at the FRS Rate to Commissioners Barry, May, and Bender. Also, the Clerk’s response set forth in Paragraph 46 is incorporated herein.

Further, the Clerk has filed (or will be filing) contemporaneously along herewith a declaratory judgment action seeking to have returned to the public treasury improper contributions to the ICMA Plan that have been made for the benefit of Commissioners Barry, Bender, and May.

49. Allegation in Complaint: “The present Clerk herself, from her investiture in office in August 2012 until June 2021, processed all necessary payments under the ICMA contract at the FRS Rate.”

Clerk’s Answer: Denied that the current Clerk’s investiture was in August 2012. Admitted that the current Clerk made payments to the Plan from the time of her investiture in January 2013 to June 2021. The remainder of this paragraph is denied. Also, the Clerk’s responses set forth in Paragraphs 46 and 48, above, are incorporated herein.

50. Allegation in Complaint: “Given that there are usually 26 paydays in a year, then just during the eight years 2013 through 2020 (before this dispute arose), the present Clerk made 200 or more payments to ICMA at the FRS Rate without raising any issue.”

Clerk’s Answer: Without knowledge as to whether “any issue” was raised for the time period alleged. The Clerk reduced the contribution rate to the Plan for the benefit of Commissioner Barry, May, and Bender effective July 1, 2021, and ceased payments to the Plan for the benefit of Commissioners Barry, May, and Bender effective January 1, 2022. Commissioners Barry, May, and Bender joined the Plan at various times. The remainder of this paragraph is denied. Also, the Clerk’s responses set forth in Paragraphs 46 and 48, above, are incorporated herein.

51. Allegation in Complaint: “Each of the payments the Clerk made during the years 2013 through 2020-i.e., at the FRS Rate required by the County/ICMA contract-was a legal and lawful payment.”

Clerk’s Answer: Admitted in part and denied in part. There is no specific statutory restriction on the contribution of county funds to the Plan for SMSC employees. The Florida Constitution and the current general laws of the State of Florida do not permit contribution of county funds to the Plan for the benefit elected officers. Also, the Clerk’s responses set forth in Paragraphs 46 and 48, above, are incorporated herein.

52. Allegation in Complaint: “The Clerk never made an illegal payment to ICMA on behalf of the County between the years 2013 and 2020.”

Clerk’s Answer: Admitted in part and denied in part. There is no specific statutory restriction on the contribution of county funds to the Plan for SMSC employees. The Florida Constitution and the current general laws of the State of Florida do not permit contribution of county funds to the Plan for the benefit elected officers. Also, the Clerk’s responses set forth in Paragraphs 46 and 48, above, are incorporated herein.

53. Allegation in Complaint: “The clerk never made a legally unauthorized payment to ICMA on behalf of the County between the years 2013 and 2020.”

Clerk’s Answer: Admitted in part and denied in part. There is no specific statutory restriction on the contribution of county funds to the Plan for SMSC employees. The Florida Constitution and the current general laws of the State of Florida do not permit contribution of county funds to the Plan for the benefit elected officers. Also, the Clerk’s responses set forth in Paragraphs 46 and 48, above, are incorporated herein.

54. Allegation in Complaint: “On or about March 3, 2016, Thomas Turner, Director of Human Resources for the Escambia County Board of County Commissioners, recommended that the Board renew its contract with ICMA, with amendments that are not relevant here. Ex. 4.”

Clerk’s Answer: Admitted that Thomas Turner, Director of Human Resources made a recommendation to the Board on March 3, 2016. Denied that such recommendation was for renewal of the ICMA Contract. The recommendation for amendment was to simply “update” the ICMA contract because “…the IRS stated that all Governmental Money Purchase Plan & Trust Adoption Agreements must be updated.” (Plaintiff’s Exhibit 4, emphasis added). Without knowledge as to relevance of the amendments to this action.

55. Allegation in Complaint: “Mr. Turner’s recommendation noted that the “contributions to this plan for employees that elected the 401A plan is equal to the Florida Retirement System contribution rate for the employees’ retirement class, which is determined by FRS each July.” Id. In other words, he noted that the County would continue to make retirement payments at the FRS Rate.”

Clerk’s Answer: Admitted that the language in Thomas Turner’s March 3, 2016 recommendation is accurately stated in this allegation; otherwise denied.

56. Allegation in Complaint: “Mr. Turner’s recommendation also stated that the County Attorney’s Office had reviewed the policy and deemed it legally sufficient. Id.”

Clerk’s Answer: Admitted that Mr. Turner’s recommendation stated that the County Attorney’s Office had reviewed the policy and deemed it legally sufficient. Denied that it is lawful for Commissioners Barry, Bender, and May to Participate in the ICMA Plan.

57. Allegation in Complaint: “On March 3, 2016, the Board voted to amend the County/ICMA contract, keeping it in substantially the same form as the original 1997 version. Ex. 5.”

Clerk’s Answer: Admitted that during a Board meeting on March 3, 2016, the Board of County Commissioners voted to amend the ICMA Contract dated December 29, 1997. Admitted that the contract is in substantially the same form as the 1997 version, with the exception of the contribution rate language deleting the word “required.”

58. Allegation in Complaint: “As discussed above, from 1997 until June 2021, all former Clerks and the current Clerk observed the County/ICMA contract and sent payments to ICMA using the FRS Rate.”

Clerk’s Answer: Without knowledge as to actions prior to January 2013. Denied that the ICMA Contracts dated January 7, 1997, and December 29, 1997, at all times thereafter required contributions at the FRS Rate. Admitted that the current Clerk sent payments to ICMA using the FRS Rates sent by the County. Also, the Clerk’s responses set forth in Paragraphs 46 and 48, above, are incorporated herein.

59. Allegation in Complaint: “Around June 2021, the Clerk announced that she had perceived a dispute between herself and certain members of the Board of Commissioners. Shortly thereafter, the Clerk changed the longtime policy of her office and began shortchanging the County’s payments to ICMA. Some relevant events are recounted immediately below.”

Clerk’s Answer: Denied that in June 2021 the Clerk announced a perceived dispute. The Clerk sent an email to the County Attorney on June 6, 2021 about disparaging comments made by Barry, May, and Bergosh after the June 3, 2021, Board meeting. Admitted that the Clerk reduced contributions for Commissioners Barry, May, and Bender effective July 1, 2021. The remaining allegations of this paragraph are denied.

60. Allegation in Complaint: “On June 6, 2021, the Clerk wrote an email to the County Attorney and the former County Administrator.”

Clerk’s Answer: Admitted. 2021 email.

Allegation in Complaint: “The email states in relevant part:

Immediately following Thursday night’s Board of County Commission meeting (6/3/2021), three Commissioners were walking the back hallway together talking loudly about me saying, in order Barry, May and Bergosh:

[The words of the Clerk, which the County denies are accurate, are hearsay and they are inflammatory. They are omitted from this pleading.]

The commissioners were referring to the ICMA/401(a) issue and my reluctance in back-funding their personal retirements. I wish to state, I find this diatribe not only offensive to me personally but inappropriate behavior by an elected official. This is indicative of the type of behavior that county employees have complained about over the last several years. I will not put up with this kind of harassment or abuse towards me, my staff or any county employee.”

Clerk’s Answer: Admitted that County quotes part of the Clerk’s June 3, The entirety of the passage from the email was:

The remainder of this allegation is denied, specifically including the suggestion that the Clerk’s decision not to allow further County contributions for Commissioners Barry, Bender, and May to the ICMA Plan was because of the untoward remarks referenced above. As expressed in the above-quoted language, the Clerk had already expressed to the County Commission her reluctance to back-fund benefits retirement benefits. The investigation and research of thereof led directly to the Clerk’s determination that further contributions to the ICMA Plan for elected county officials was unlawful. Commissioners Barry, May, and Bergosh, by their above comments, were apparently frustrated that the Clerk was upholding her Constitutionally-mandated duty to protect the public treasury from improper County expenditures.

62. Allegation in Complaint: “The Clerk wrote herself a memo in which she wrote, “I started my research on elected official’s participation in [the Local Plan] on or around June 2021.”

Clerk’s Answer: Admitted that the Clerk sent an email on July 26, 2021 containing the quote “I started my research on elected official’s participation the ICMA- 401a on or around June 2021.” The email was in response to public record request containing multiple paragraphs and nine PDF attachments. The remainder of this paragraph is denied.

63. Allegation in Complaint: “According to her own memo, the Clerk made her first call to the Florida Retirement System on June 8, 2021-two days after she sent the June 6 e- mail complaining about the alleged “abuse” from certain Commissioners.”

Clerk’s Answer: Admitted that the Clerk’s email on July 26, 2021 states that the Clerk called FRS on June 8, 2021. Admitted that Clerk sent an email on June 6, 2021 about statements made by Commissioners Barry, May, and Bergosh. The Clerk had begun her examination of the propriety of the ICMA Plan contributions for Commissioners Barry, Bender, and May before the date of her call with FRS officials.

64. Allegation in Complaint: “On June 17, 2021, the Board terminated the County Administrator.”

Clerk’s Answer: Admitted the Board of County Commissioners terminated the County Administrator at a Board meeting on June 17, 2021. Also admitted that the termination of the County Administrator was terminated because she had taken the position that County contributions to the ICMA Plan for Commissioners Barry, Bender, and May were improper and should be discontinued.

65. Allegation in Complaint: “On June 17, 2021, the Clerk submitted a report to the Board of County Commissioners with the recommendation that, effective July 1, 2021, the contribution rate for the Local Plan would be cut from the FRS Rate to 8.34%, a number apparently taken from a component of Employer Contribution Rates before Blending for the FRS Investment Plan Rates.”

Clerk’s Answer: Admitted.

66. Allegation in Complaint: “Ex. 6 is the Clerk’s report, with its attachments.”

Clerk’s Answer: Admitted.
67. Allegation in Complaint: “On or about July 9, 2021, the Clerk reduced

the payments for Commissioners participating in the Local Plan from the FRS Rate, a 51.42% contribution, down to a contribution of 8.34%.”

Clerk’s Answer: Admitted that Clerk reduced contribution rate of County Commissioners from 51.42% to 8.34%. The rate reduction was effective July 1, 2021.

68. Allegation in Complaint: “The Clerk admitted in her June 17 Report that the 401(a) plan “is available for Escambia County employees in the Senior Management Services Class (‘ SMSC ‘) and the Elected Officers’ Class.”

Clerk’s Answer: Admitted that the June 17, 2021, report restates quoted language. The report merely reflects language contained in the Plan, and is not a legal conclusion that members of the County’s Elected Officers’ Class are, in fact, allowed to participate in the ICMA Plan.

69. Allegation in Complaint: “The “Elected Officers” class includes the county commissioners who opt to participate in the plan.”

Clerk’s Answer: Admitted that elected county commissioners are part of the Elected Officers Class as set forth in the Florida Statutes.

70. Allegation in Complaint: “The Clerk also admitted in her Report that the present County/ICMA contract “sets the rate at the ‘**Rate of Contribution per Florida Retirement System” – meaning, the County continues to use the FRS Rate.”

Clerk’s Answer: Admitted that the report contains quoted language. The remainder of this allegation is denied. Also, the Clerk’s response in Paragraph 68, above, is incorporated herein.

71. Allegation in Complaint: “The FRS rates are set by law following actuarial studies, and the Local Plan utilizes the FRS-set contribution rates. Ex. 7 shows the FRS Rates as of July 2021.”

Clerk’s Answer: Admitted, except denied that the ICMA Plan “utilizes the FRS-set contribution rates.” Although the Plan provides that the contribution rate shall be “Rate of Contribution per Florida Retirement System,” that rate could only be effective (assuming compliance with other statutory and constitutional requirements) for the contract year when the Plan was adopted and could not be increased thereafter unless the County made provision for the increase based on actuarial soundness as required by Art. X, Sec. 14 of the Florida Constitution. The County did not undertake any efforts to determine the actuarial soundness of any increases in benefits for the ICMA Plan.

72. Allegation in Complaint: “Also on June 17, 2021, at a regular meeting of the County, the Clerk verbally stated that she would not reduce the employer contribution rates for SMS employees, but would continue to use the FRS Rate, which includes a contribution to defray the Unfunded Actuarial Liability (UAL) imposed by the FRS under both the pension and investment plans. But for County Commissioners, she would cut the rate to 8.34%.”

Clerk’s Answer: Admitted. The Clerk reduced the FRS rate for Commissioners Barry, May, and Bender to the net benefit that each would have received should they have selected the FRS Investment Plan.

73. Allegation in Complaint: “The Clerk has continued making Local Plan payments at the full FRS Rate for all participants-except County Commissioners.”

Clerk’s Answer: Admitted the Clerk did not reduce contribution rates for all participants in the Plan; otherwise denied.

74. Allegation in Complaint: “For example, the Clerk has continued to pay contribution rates set by the FRS Rate of 29.01% for Senior Management Service employees.”

Clerk’s Answer: Admitted that Clerk did not reduce contribution rate for County employees in the Senior Management Services Class (“SMSC”) of the FRS. Admitted gross contribution rate for SMSC employees who are participants in the FRS is 29.01% for State fiscal year July 1, 2021 through June 30, 2022.

75. Allegation in Complaint: “Only three Commissioners are affected by the Clerk’s decision because only three of them participate in the Local Plan. They are Commissioners Barry, May, and Bender. Two of these-Barry and May-are the same Commissioners the Clerk complained about in her June 6 e-mail.”

Clerk’s Answer: Admitted that the only elected county officers in Escambia County who participate in the plan are Commissioners Barry, May, and Bender. Admitted that Barry and May made disparaging comments about the Clerk after she raised concerns at a Board meeting regarding the propriety of payment of extra compensation; and those disparaging comments were referenced in an email by the Clerk on June 6, 2021. Also admitted that under Florida Law the County is prohibited from making retirement contributions to the ICMA Plan for the benefit of Commissioners Barry, Bender, and May. Rather, the only retirement plans to which the County may make contributions for the benefits of its county commissioners are retirement plans that are part of the Florida Retirement System (i.e, the Florida Retirement System Pension Plan, or the Florida Retirement System Investment Plan).

76. Allegation in Complaint: “The affected Commissioners’ decision to participate in the Local Plan means they cannot participate in the Florida Retirement System. Now that the Clerk has failed to fulfill the Local Plan, these Commissioners have no alternate system available to them.”

Clerk’s Answer: Denied. Commissioners Barry, May, and Bender can rejoin the FRS at any time pursuant to Florida law. Accordingly, the said Commissioners have an alternative remedy to the relief being sought herein, which alternate remedy the said Commissioners have failed to exhaust.

77. Allegation in Complaint: “Beginning with the pay period beginning July 9, 2021, the Clerk proceeded to reduce employer contributions for Commissioners to the rate of 8.34%. This is not the FRS Rate required by the County/ICMA contract.”

Clerk’s Answer: Admitted that the Clerk reduced contributions for Commissioners Barry, May, and Bender; otherwise denied.

78. Allegation in Complaint: “In response to the Clerk’s threats and actions, the County Attorney hired the law firm of Allen, Norton, and Blue to investigate. Its independent legal opinion confirmed the legality and lawful nature of the Local Plan- including the FRS Rate. Ex. 8, at p. 3 (“Overall, it is my opinion that the County’s use of the Local 401(a) Annuity Program complies with the law.”).”

Clerk’s Answer: Denied that the Clerk made any threats. Denied that the hiring of Allen, Norton, Blue was in response to the Clerk’s action. The County Attorney hired the law firm of Allen, Norton, Blue after a vote of the Board to investigate the legality of a retroactive settlement agenda item brought forth by Commissioner Barry at a regular Board meeting on June 3, 2021 resulting in an opinion issued by Allen, Norton, Blue on July 2, 2021.

79. Allegation in Complaint: “The Clerk ignored this independent legal opinion.”

Clerk’s Answer: Denied. The Clerk disagreed with the independent legal opinion. The opinion principally relied on wording of one phrase out of one sentence of a statute (Section 121.182) that was taken out of context. The opinion is misguided and is directly contrary to opinions from the Florida Supreme Court, the First District Court of Appeal, and the Florida Attorney General.

80. Allegation in Complaint: “The Clerk has no independent legal opinion regarding the Local Plan. She has merely argued through opinions from her own office and agents that the Local Plan is not lawful as applied to the Commissioners.”

Clerk’s Answer: Denied. As if it should matter, the Clerk’s determination that Escambia County contributions to the ICMA Plan for the benefit of Commissioners Barry, Bender, and May were unlawful was made after exhaustive research by not only the Clerk herself but also by the Clerk’s general and special counsel, as well as after affording the County and its various attorneys – both its internal general counsel as well as specially-retained outside counsel – numerous opportunity to demonstrate the propriety of the contributions.

81. Allegation in Complaint: “From July 9, 2021 through December 2021, the Clerk made payments to ICMA at her unilaterally-reduced 8.34% rate, confirming her belief that the County/ICMA contract is lawful, even if not at the full FRS Rate.”

Clerk’s Answer: Admitted the Clerk made payments to the Plan at a reduced rate for Commissioner Barry, May, and Bender; otherwise denied.

82. Allegation in Complaint: “However, on December 3, 2021, the Clerk changed her legal position again.”

Clerk’s Answer: Admitted that the Clerk ceased all payments to the Plan for the three County Commissioners effective January 1, 2022. Denied that the Clerk had “changed her position;” rather, before terminating further contributions the Clerk wanted to afford the County and its attorneys sufficient opportunity to demonstrate any fallacy in the Clerks legal reasoning. However, the County was unable to do so and the Clerk determined that she could wait no longer to act.

83. Allegation in Complaint: “The Clerk sent a letter to the Board saying that, as of 2022, she would cease to process any contribution to the 401(a) plan for Commissioners. Ex. 9.”

Clerk’s Answer: Admitted.

84. Allegation in Complaint: “The Clerk made good on that threat. On January 7, 2022, which was the first payday of 2022, the Clerk failed to make any contribution to the Local Plan for Commissioners.”

Clerk’s Answer: Denied the Clerk made a threat. Admitted that the Clerk has made no payments to the Plan for the benefit of Commissioners Barry, May, and Bender after January 1, 2022.

85. Allegation in Complaint: “The Clerk has made very clear going forward that she will not honor the County/ICMA contract at all when it comes to the Commissioners.”

Clerk’s Answer: Admitted that the Clerk has ceased all payments to the Plan effective January 1, 2022 for the benefit of Commissioners Barry, May, and Bender; otherwise denied.

86. Allegation in Complaint: “There is no legal basis for the Clerk to disregard the directive of the Board, or to unilaterally refuse to make payments under the County/ICMA contract.”

Clerk’s Answer: Denied. There is no general law of the State of Florida to support the contribution of County funds to the Plan for the benefit of Commissioners Barry, May, and Bender. In the absence of such express authorization in general law, the Clerk is required to refuse to make such illegal retirement contributions.

87. Allegation in Complaint: “Nor is there any principled basis for the Clerk to have made partial payments during the second half of 2021, if her current position in 2022 is that the Local Plan is completely invalid.”

Clerk’s Answer: Denied. The Clerk, after conducting thorough research, giving notice to the County of her reasoning, and providing the County with an opportunity to respond, ceased payments effective January 1 2022. Also, the Clerk incorporates herein the response set forth in Paragraph 48, above.

88. Allegation in Complaint: “The Clerk’s duty to implement the County/ICMA contract by making payments is ministerial.”

Clerk’s Answer: Denied. The Clerk, as ex officio county auditor and custodian of the public’s funds, is required to make pre-payment audit determination as to the legality of proposed County expenditures; and, if the expenditure is determined to be unlawful – as is the case here – the Clerk is required to refuse making payment.

89. Allegation in Complaint: “From July to December 2021 – when she made reduced payments to ICMA – and from January 2022 forward – when she is now making no payments to ICMA – the Clerk has failed to uphold her ministerial duty.”

Clerk’s Answer: Denied.
90. Allegation in Complaint: “It is not within the Clerk’s scope of authority to interpret the County/ICMA contract.”

Clerk’s Answer: Denied. The Clerk, as ex officio County auditor and custodian of County funds, must conduct pre-payment audits of proposed County expenditures and, if found to be unlawful, must refuse to make the payment.

91. Allegation in Complaint: “The Clerk has no “vote” or “say” on the contract under any law.”

Clerk’s Answer: Admitted in part and denied in part. Admitted the Clerk is not a member of the Escambia County Board of County Commissioners and, thus, does not vote on matters before the Board – such as the three ICMA Contracts. Denied the Clerk has no “say” under any law.

92. Allegation in Complaint: “The Clerk is improperly interfering with the Board’s authority and right to enter into contracts for the County.”

Clerk’s Answer: Denied.

93. Allegation in Complaint: “Indeed, the Clerk’s unilateral, ultra vires actions are potentially causing the County itself to be in breach of contract with other entities.”

Clerk’s Answer: Denied the Clerk’s actions were ultra vires. Without knowledge as to whether the County is in breach of contract.

Further, any contract (or portion thereof) entered into by a county commission that violates Florida law is void. Here, to the extent that the three ICMA Contracts provide retirement benefits for Escambia County Commissioners, the contracts violate the provisions of Art. II, Sec. 5(c), Fla. Const., and Ch. 145, Fla. Stat. Thus, the portions of the three ICMA Contracts that purport to require retirement contributions to the ICMA Plan for Commissioners Barry, Bender, and May are deemed to be void and of no legal effect. The County cannot be deemed to be in breach of a contract that is void and of no legal effect.

94. Allegation in Complaint: “For example, the Clerk’s actions are causing the County to violate its contract with ICMA.”

Clerk’s Answer: Without knowledge as to whether the County is in breach of contract. The Clerk’s response set forth in Paragraph 94, above, is incorporated herein.

95. Allegation in Complaint: “The Clerk’s actions are also causing the County to violate its promise to those Commissioners who selected the Local Plan-on the Clerk’s own form.”

Clerk’s Answer: Without knowledge as to whether the County promised Commissioner Barry, May, and Bender that they could receive a 51.42% contribution rate. Any promise for such compensation or method of payment would be at cross purposes with the Florida Constitution and the general laws of the State of Florida. Denied that the Commissioners Barry, May, and Bender selected retirement plans on the Clerk’s form. Further, the Clerk’s response set forth in Paragraph 94, above, is incorporated herein.

96. Allegation in Complaint: “Because of her unilateral and unlawful actions, the Clerk has unnecessarily and unreasonably opened up the County to potential liabilities.”

Clerk’s Answer: Without knowledge; therefore, denied. Further, the Clerk’s response set forth in Paragraph 94, above, is incorporated herein.

97. Allegation in Complaint: “The Clerk’s mandatory duty is to make the payments required by the contract.”

Clerk’s Answer: Denied.

FIRST AFFIRMATIVE DEFENSE

The Alternative Writ of Mandamus does not meet the legal requirements necessary for a mandamus action. The Clerk’s determination, as ex officio county auditor, involves the exercise of discretion. A writ of mandamus cannot be directed to require an official to perform an act that involves the exercise of discretion.

SECOND AFFIRMATIVE DEFENSE

The Alternative Writ of Mandamus seeks to have the Clerk change the decision to refuse make payment of County funds to the Plan for the benefit of Commissioner Barry, May, and Bender. Mandamus cannot be used to change the outcome of a duty that involves the exercise of discretion. A writ of mandamus cannot compel the undoing of an official’s discretionary act.

THIRD AFFIRMATIVE DEFENSE

The compensation and method of payment of elected county officers, including Commissioners Barry, May, and Bender, must be set by the general laws of the State of Florida. There is no general law of the State of Florida that permits the County to pledge payment of public funds to the Plan for the benefit of Commissioner Barry, May, and Bender.

FOURTH AFFIRMATIVE DEFENSE

County funds must be used for a public purpose. In addition to being contrary to the Florida Constitution and Florida Statutes, contribution to the Plan at a rate of 51.42% for the benefit of an elected county officer does serve a paramount public purpose.

FIFTH AFFIRMATIVE DEFENSE

The Clerk is required to refuse payment of unlawful County expenditures. The proposed contributions to the ICMA Plan for the benefit of Commissioners Barry, Bender, and May are unlawful.

SIXTH AFFIRMATIVE DEFENSE

For mandamus to issue the County must demonstrate that it has a clear legal right to the requested relief. The County seeks to have the Clerk approve contributions to the ICMA Plan for the benefit of Commissions Barry, Bender, and May. Yet, the system for compensation of county commissioners established by the Florida Constitution and Florida Statutes does not allow the County to make retirement contributions for its commissioners to a private, non-FRS administered retirement plan. As such, the County does not have a clear legal right to the requested relief.

SEVENTH AFFIRMATIVE DEFENSE

Individual county commissions are prohibited from establishing compensation for its commissioners. That subject is reserved to the State. The Legislature determined that requiring county commissioners’ compensation to be established by general law (and not at the discretion of individual county commission boards) “is needed to replace the haphazard, preferential, inequitable, and probably unconstitutional local law method of paying elected county officers.” Thus, Escambia County Resolution 97-1 – not being a general law enacted by the Florida Legislature — is illegal to the extent that it provides compensation for Commissioners Barry, Bender, and May.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished to Troy A. Rafferty at TRafferty@levinlaw.com, William F. Cash III, at BCash@levinlaw.com and Michael C. Bixby, at MBixby@levinlaw.com, respectively, Levin, Papantonio, Rafferty, Proctor, Buchanan, O’Brien, Barr, and Moughey, P.A., on the 1st day of March, 2022.

Matt E. Dannheisser, P.A.
Florida Bar Number: 367616
504 North Baylen Street
Pensacola, Florida 32501 TelephoneNumber:(850)434-7272 Primary Email: mdannheisser@dannheisserlaw.com Secondary Email: lglassman@dannheisserlaw.com Counsel for Escambia County Clerk of the Circuit Court and Comptroller

Codey L. Leigh, Esq.

Florida Bar No. 65405
Clerk of the Circuit Court and Comptroller 190 W. Government Street
Pensacola, Florida 32502
(850) 595-0504
legal@escambiaclerk.com
Counsel for Escambia County Clerk
of the Circuit Court and Comptroller

EDWARD P. FLEMING
Florida Bar No.: 615927
R. TODD HARRIS
Florida Bar No.: 651931 MCDONALDFLEMING LLP
719 S. Palafox Street
Pensacola, FL 32502
(850) 202-8531 flemingservice@pensacolalaw.com rtharris@pensacolalaw.com
Counsel for Escambia County Clerk of the Circuit Court and Comptroller