The Escambia County Commissioners have filed a complaint for Writ of Mandamus against County Clerk Pam Childers “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.”
Levin Papantonio Rafferty attorney Troy Rafferty represents the county in the complaint. He explained the writ: “It’s basically an action to force the clerk to do what she has a ministerial duty to do, which is simply pay into the fund.”
The filing argues that Childers is required to do so by county ordinance, a binding contract between the County and the ICMA Retirement Corporation that has been in place since 1997, and Florida statute that establishes her as the Board’s “clerk and accountant.”
The document states, “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.”
In June, Childers said she and her staff had been reviewing the plan for over a year. Read here and PNJ “Escambia County comptroller mandates rate cut for controversial county retirement program.” She began to make discounted contributions to the ICMA accounts of Commisssioners Steven Barry, Robert Bender and Lumon May.
During June and July, she repeatedly called the county’s 401(a) retirement illegal for the county commissioners – PNJ “Childers: Annuity program isn’t legal, commissioners will need to pay back retirement fund.”
Childers backed up her assertions by saying she would take the Board of County Commissioners to court. Her exact words in June – “I suggest you get a good solid attorney opinion when you pick your rates, or we will be in court, sir,” as reported by PNJ (“Escambia County’s retirement annuity plan could go to court“).
On July 22, Childers told the board: “The state has determined it is illegal to have a 401(a) for elected officials. They emailed me yesterday.” There was no such email so she created one to herself. Read here.
On August 20, she told the commissioners that she didn’t accept the two legal opinions from the county’s labor attorneys that said the ICMA plan was legal – PNJ “Escambia County Commission and Pam Childers poised for court battle over annuity program.”
“I still believe that the ICMA contribution plan for elected officials is outside general law,” she said. “I cannot find any language that is permissive of it. I will conclude my research. I will provide formal writing. Those of you that are in the plan, I will give you plenty of time to decide what you want to do as a county or as an individual when the contributions cease.”
She refused to join the board in asking for an Attorney General opinion. Commissioner Robert Bender asked, “Pam, why can’t we just jointly request the Attorney General’s opinion?”
Childers replied, “I have a feeling where we’ll get stuck is how you present the issues, and how I present the issues.”
She said she had hired Matt Dannheisser to represent her in court. Read more.
Childers continued to make partial payments until this month when she stopped paying into the commissioners’ ICMA accounts, thus pushing the commissioners to seek remedy in court.
Commissioner Jeff Bergosh said on WCOA yesterday that he didn’t want to take this matter to court, but Childers left the board with no other choice.
“We cannot allow someone who does not have the right to terminate contracts, or specify contracts, to come in and say that she doesn’t like something and so therefore she’s not going to pay it,” said Bergosh. “That cannot be allowed to stand. It would set a very dangerous precedent.”
Rafferty echoed Bergosh’s point, “The clerk doesn’t have the authority or the ability to just decide what contracts she’s going to abide by and which ones she’s not.”
What’s next? Rafferty said the clerk will have a chance to respond and make her arguments.
He said, “There will be discovery. There will be depositions. We will find out what the true facts are and what’s going on, and once we do then the court will make the decision.”