The Childers Circus continues

On the day the county commissioners voted unanimously for the Levin Papantonio Rafferty law firm to represent them in a dispute with Escambia County Clerk Pam Childers over the 401(a) retirement program, the clerk and her in-house attorney hand-delivered a memo to the board and asking for a response within 30 days.

The memo poses several questions about the board’s legal opinions it has received about the program but offers no firm legal opinions. It requests the matter be handled in a dispute resolution process rather in court.

The memo doesn’t match Clerk Childers’ public stances and her boast that she would see the board in court to resolve the issue.

To offer no firm legal opinion is more than odd. Childers has 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.

During June and July, Escambia County Clerk Pam Childers 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.”

At the end of June, Childers produced emails that she claimed proved the program was illegal – PNJ “Childers provides emails from state showing annuity program no longer a retirement option.” Yet her Sept. 2 memo doesn’t mention the emails. Why? Because the emails proved nothing. No state agency has ruled the plan illegal.

Childers still adjusted the July and August payments to the company running the program according to what she said was the legal amount allowed for the commissioners.

Childers backed up her assertions by repeatedly 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, Childers 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.”

Childers also said she had hired Matt Dannheiser to represent her in court. Read more.

Recap

  • County Clerk Childers repeatedly has said the 401(a) plan is illegal and has deducted what she says is excessive from payments to the plan’s vendor. But now she is refusing to use the word “illegal,” using “outside the law” instead.
  • She has twice claimed to have documents from the state that proved the plan was illegal, but the documents either didn’t exist or failed to prove the plan’s illegality.
  • She rejected the legal opinions of outside counsel while saying she would do her own legal analysis, only to have “analysis” that asked questions without providing a firm legal opinion.
  • She rejected asking the Attorney General for an opinion.
  • She has said she would see the commissioners in court, bragging she had hired the brother of Judge Tom Dannheiser to represent her. But now she wants to use the dispute resolution process – a process similar to AG process that she rejected earlier.
  • After studying this issue for over year, she still hasn’t provided a defendable legal opinion that supports her actions.

It’s time to end this circus – go to court where each side provides its evidence and facts.

This melodrama is beyond bizarre. All of this could have been handled in June 2020 when Childers says she started to investigate the plan. She should have  raised her concerns to the board and they could have asked for an Attorney General opinion. Case closed.

Commissioner Jeff Bergosh has the memo on his blog. Bergosh will be on my radio show at 8 a.m. today. Troy Rafferty of the Levin Papantonio Rafferty will be on the show tomorrow.

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5 thoughts on “The Childers Circus continues

  1. Pam Childers was not legally elected and she cannot change that she did not have the minimum valid signatures, she cannot make said signatures magically appear nor can Pam.

    You check Pam’s budget she had $220 reported meaning she turned in at most 2,200 signatures when 2,130 were required and Chris Heaney at SOE told me on Nov 12 she had 309 invalid.

    I legally should have been sworn in as Circuit Clerk in January, as it is I am owed $100,000 in back pay at this point if I am, I would probably opt for FRS pension, having said that, I believe the 401a program is legal, because the US Constitution prevents passage of ex post facto laws, basically once Tallahassee repealed the law authorizing new ones, a county without one already could not, those that had them get to keep them.

    And so if I am sworn in, I order the payments made, all challenges to the 401a program cease, normalcy will return to Escambia County government

  2. The 401(a) is a super conservative financial instrument and being a risk level associated with purchasing muni bonds so this kind of fund is investing in state and local loans that build the county and state or even the city itself with bonds.

    401(k) are corporate and can be very risky as well as most likely having no benefit locally, at state or possibly even to the country and the employer who offers a 401(k) will typically offer 12 – 20 options grouped in levels of risk and potential return.

    I think 401(a) have had a %0.10 default rate over the last 50 years while 401 (k) have been %2.25. The401(a) losses were almost exclusively limited to the Puerto Rico financial collapse.

    Frs pays for life, these plans are purchasing a instrument that is a lump sum payout basically

    Why is it that the administration fees on FRS is so incredibly high, something like 38%?

  3. Every morning when I read the local news, there’s some type of unnecessary drama going on, and the same culprits are always behind it. I’m appalled by the behavior of some of our local “leaders”. I don’t know if the pandemic/toxic political climate has brought out underlying mental instability in many individuals, but a lot of individuals are acting outrageously, and it’s become extremely unnerving.

    The board wants this to be resolved in court, as it should be since they’ve been made out to be “corrupt thieves”, so if that’s truly what Childers (and Underhill) believe, then why isn’t she allowing it to go to court, and instead wanting to handle it through dispute resolution process? Do they not want to go to court because they know they’re wrong, and tax paying citizens are going to be livid that time and money was wasted? If Barry and Rogers are such corrupt individuals like Underhill wants the public to believe, I guarantee you he wouldn’t be wasting his time sitting on his butt spewing bs on social media, but instead would want it handled by a judge.

    Regardless, this needs to stop being played out in the media, so certain people can continue to manipulate public perception. It’s beyond time for this to be resolved by a judge, because the board needs to get on with business that affects our daily lives! The community has had enough of the childish bs that’s impeding the board to handle real issues.

  4. Thank you for yesterday’s podcast on leadership in the community and today’s interview with Commissioner Bergosh on this latest lunacy fluffed up as populist heroism. It’s a breath of fresh air across the stench of corrupt bias that has been pouring out of that paper lately. Your Real Talk this morning really helped towards counteracting the disinformation train on the 401(a) that continues to chug along from the PNJ, ECW, and, sadly, the Clerk’s office. (Doug spent yesterday throwing down lies about it on his press secretary JAR’s site, verbally abusing other commenters, and pretending what was *clearly* early notes Alison Rogers made on who *might* be eligible for the local option her attempt to fake a definitive list. The fact that she has “four commissioners” up tops indicates that this was NOT a definitive list, but Doug of course swung it in the false direction that she fabricated the list for the appearance of buy-in. Because there is no lie so stupid the man won’t say it, and the dwindling band of bootlickers over there won’t believe it.)

    The PNJ as a whole flipped their script and clearly put Doug under their protection during the 2018 election, which was the sure sign that, while he had completely bombed out for his bosses on Pensacola Beach, Downtown wasn’t done yet squeezing a beat-up stone for juice. (Tanking OLF8 master planning scores in DPZ’s favor; allying with Ms. Gilley to blow up the commission, chaos-make at the County, attempt to destroy Public Safety with an aim at consolidation, and purge the pay rolls of institutional knowledge; absent himself from the Downtown shoreline during redistricting; continue advocating for cutting down heritage trees to help send all of the County’s tree fund Downtown; etc.).

    But their “Editorial Team” is really showing which side their bread is buttered on in the last few months, not even trying to hide how hard they are shilling for various nabobs and would-be kingmakers. And it’s truly disturbing how vicious and distorted they are willing to go for the development strategists downtown running the Rainbow and Glitter campaign to shoehorn development counter to what the citizens or the majority of the City Council want (time for some more “spontaneous” charrettes steering the cattle back into their chutes and feeding them the proper desires).

    It’s very clear they Need. More. Money, and the natural place to go get it is the taxpayers of Escambia. What better way to get it than to cram a vote on the next ballot so Escambia taxpayers can check the box to elect a county administrator–something it won’t be difficult to convince the QAnon and conspiracy theory ranks to do, which is why Andy has been cultivating their readership with sadistic and sexualized cartoons. It’s clearly a plan cooked up to appeal to voters’ basest instincts so they will unwittingly tax themselves to death, as Downtown’s would-be administrator sends all of the County resources down to the Main Street waterfront and the residential condo builders who are getting ready to ruin it. They’ve progressed from “appointed” to “anointed.”

    They’ve got their Bread and Circus, their peacock, a Clerk, a Millennial Mayor, their Dirty Dozen, and the Usual Suspects slipping around par for the course. What they don’t have any more is an effective social media disinformation war room, since those of us who recognized it was a cancer on our community a few years ago have for all intents and purposes won our battle to expose that site and its “Administrator” for what they really are. Be on the watch for them to either throw up a new front or reinforce Jacqueline’s flagging venture soon. In the meantime, the people who get what’s going on are grateful for your determination in continuing to report the straight dope, and you’re growing the ranks of citizen awareness beyond what the PNJ shovels every day.

  5. All good political theater but not good government. This really doesn’t seem like such a complicated issue. When the dust settles, I think it is all going to come down to what the Florida Legislature intended when it adopted this sentence in Section 121.182 Retirement Annuities for City and County Personnel: “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.” 1996 does seem like ancient history. Buzz Ritchie voted for the law. Maybe he remembers. Perhaps the Department of State can find in its historical archives a copy of Chapter 96-368 (not posted to the legislature’s website) to include the bill analysis that might give a clue as to what the sentence means. There are two ways to analyze the sentence. First, you might say its purpose is to allow local governments to accomplish what is described in the preceding three sentences. That is how I read it. That might be the Childers view. On the other hand, the Rogers view which is just as valid is probably that the sentence expressly grants vast authority to city and county governments. How much authority? The Allen, Norton & Blue opinion seemed to focus on the point that there’s nothing that says it is illegal for Escambia County to do what it has done and is doing. Could Escambia County invest money for its employees with Edward Jones? Maybe. A fair arbitrator of the issue short of going to court is Attorney General Moody. How about Raferty and Dannheiser draft a proposed request for an Advisory Legal Opinion and present it to their clients for approval. It might help AG Moody if the letter identified the areas where the two agree (if any) and where they disagree laying out the arguments on each side. If the final answer is that Escambia County can do whatever it wants, then there really is nothing to arbitrate because that’s a decision for the governing body. Whether its right or not or will stand up to political scrutiny is another matter. I am reminded of what the great Councilman Sam Hall once told me when justifying something suspect that the city council was doing, “It may not be right but it’s legal.” If the Florida Legislature cares about this issue, it can also preempt local governments here too.

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