Real News podcast: Bergosh on Childers memo

Commissioner Jeff Bergosh is ready to take County Clerk Pam Childers to court, blaming her for not handling the issues she had brought up with the 401(a) retirement plan earlier with staff. He believes the only way to settle the matter is to go to court, because Childers has refused to join the board in asking for an Attorney General opinion.

“This memo comes out of nowhere Friday afternoon saying, ‘Hey, by the way,’ I’m paraphrasing, ‘We think there’s this alternative dispute resolution. We want an answer to what our attorney says within 30 days or we’re just going to stop paying.’ Almost like an ultimatum,” said Bergosh. “I just think it was something that never needed to happen.”

He later added, “It isn’t right the way they (clerk’s office) are trying to constructively terminate bonafide contracts the board entered into.”

“What happens going forward, of course, will be a board decision,” said Bergosh. “But, like you, I think that’s an interesting tell that suddenly now that we’ve had one of the nation’s preeminent law firms on board, one of the nation’s preeminent trial attorneys signed up; we’ve got two opinions that this is legal, including one from a 30-year government lawyer, well-respected throughout the state. Let’s just find out if it’s illegal. Let the board handle the contribution rate and let’s stay in our lanes. That’s my advice for the clerk.”

Tomorrow morning, I will have Troy Rafferty of the Levin Papantonio Rafferty law firm on the show to discuss why his volunteered to represent the Board of County Commissioners pro bono and how his legal team sees the case.

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4 thoughts on “Real News podcast: Bergosh on Childers memo

  1. “Doug Underhill may be a pathological imbecile”

    At least you got that one part right, Mr. Beall.

  2. Walter,
    Thanks for commenting. First, Commissioner Barry did not got before the Florida Ethics Commission about retroactively funding his 401(a) account. The Ethics Board doesn’t rule on such issues. What he did request was an opinion whether he could discuss the 401(a) issue at a board meeting. The Ethics Commission ruled he could bring the issue up.

    Every citizen and elected official has the right to petition the ethics commission. However, Barry’s petition wasn’t about refunding anyone retroactively – that is misunderstanding of what was presented to the board. The Ethics Board had all the facts to rule on whether the issue could be discussed by the full county commission.

    I repeat: There was no ruling on the plan to retroactively fund the accounts of individual commissioners.

    The county attorney and county staff routinely help commissioners when they need an opinion from the Ethics Commission. County Attorney Rogers helped Commissioner Underhill several years ago when he was setting up a legal defense fund. Individual commissioners bringing issue before the Ethics Commission do not require a full board vote. Rogers did not mislead the Ethics Commission or break the law.

    Why Commissioner Barry wanted to bring up the 401(a) issue has never been fully explored. The board cut off any discussion in early June and asked for further legal analysis. He has since said he would not participate in any retroactive payment plan but wanted to see if the county senior leaders were properly notified of the option. I suggest you talk to him or attend one of his town halls.

    -Rick

  3. Wait a minute… this over-fascination with Pam Childers’ overreach has become a distraction. The origin of this whole 401a drama didn’t start with her. It started because Steven Barry approached the Florida Ethics Commission about the possibility of RETROACTIVELY funding his 401a account to the tune of $230,000.

    That is a completely separate issue of whether or not the plan in and of itself is legal in the first place, which it obviously is.

    On whose authority did Barry make this approach? Who was the lawyer who made this petition? Who paid her? How could the Board pay her without a vote from the board or even the knowledge of its members of her services? If the board didn’t pay her, then who did?

    How was this “class” of people, whose interests she was supposedly representing, determined? Why were none of them notified about this petition? When exactly (if ever) were they going to be notified?

    Doug Underhill may be a pathological imbecile, but that doesn’t give Steven Barry the right to claim to be representing Underhill’s interests without his knowledge. In fact, Barry does not have the right or authority to make that petition by himself, with no one’s knowledge other than his attorney(s).

    We’ve seen at least three opinions on the legality of the plan itself. How about let’s double-check that Ethics Board ruling on the plan to retroactively fund the accounts of individual commissioners, just to be sure that the Board really was in possession of all of the relevant facts?

    There seems to be a stunning lack of interest in finding the answers to any of these questions. Instead we’re seeing what seems to be a deliberate attempt to obfuscate the real issue by distracting everyone with the shiny object of Pam Childers.

    By all means, let’s go to court and find out what everyone already knows: that the plan by itself is legal. However, once we get Wonder Woman safely corralled back into her proper “lane,” let’s find out just whose “lane” Steven Barry was in when he cooked up a scheme to have over $200K of backdated checks sent over to his retirement account.

  4. In the two-part legal opinion consisting of a July 2 letter and a July 21 letter to clear up some confusion, labor & employment lawyer Michael Mattimore with the law firm Allen, Norton & Blue answers ten questions posed by County Attorney Alison Rogers. He regularly works for the county engaged in collective bargaining so he is not “independent” of the county. His expertise if any in the technical area of “annuities” is not known. He makes a basic mistake in one letter that hints someone else may have written the letters for him as is the practice in his law firm based on past experience. Rogers never directly asks Mattimore if the county’s annuity program is legal. Why would she? She thinks it is legal. That would have been my first question. In the July 2 letter, Mattimore does not mention Section 121.182, Florida Statues. Then, almost out-of-the-blue, he mentions it in the July 21 letter. He never describes the title of the law or quote it in its entirety though it is only five sentences long. It’s as if there is suddenly a shortage of vowels and consonants when describing all five sentences together would so openly raise some obvious questions about what the law means. The Florida Legislature makes laws using the State Constitution’s “one subject” rule. When a law has many “working parts” they break it down into sub-sections or sub-sub-sections. In Section 121.182, in 1996, they put all five sentences in just one little paragraph. Mattimore cites no legal authority or ruling or opinion other than his own for boldly asserting based what he calls “my reading of the statute” that the fourth sentence is intended as an “explicit” grant of expansive home rule power for Escambia County to provide annuities to all of its employees to include but not limited to elected officials and senior management employees. Yes, that is exactly what Commissioners Bender, Barry and May do want to hear. However, there’s no facts presented by Mattimore to support that view. The “bill analysis” for Chapter 96-368 from 1996 would be the best guidance to understand the legislative intent. Someone should ask to see it and make it public. Ultimately, the burden of proof is on Escambia County to demonstrate that the fourth sentence of Section 121.182 stands alone as a special grant of power as Mattimore asserts on its behalf. The fact that Escambia County may have misinterpreted Section 121.182 25 years ago is immaterial to the current issue. Section XI Annuities for Cities, Counties, School Boards and Community Colleges described on Page 12-24 of the Florida Retirement System Employers Handbook “does” expressly cite Section 121.182 Retirement Annuities Authorized for City and County Personnel, Florida Statutes.
    https://employer.frs.fl.gov/forms/EH_ch12.pdf The text appears to better support the view of Clerk of the Court & Comptroller Pam Childers. Here is a link to her recent memo – http://jeffbergoshblog.blogspot.com/2021/09/clerks-attorney-provides-memo-and.html

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