Florida’s 66 other county clerks are backing a key legal argument of Escambia County Clerk of Court Pam Childers in the on-going legal battle over a controversial county retirement plan for county commissioners.
Florida Court Clerks and Comptrollers, a nonprofit association all 67 Florida county court clerks, filed a “friend of the court” brief in the lawsuit between Escambia County commissioners and Childers on Friday supporting Childers’ legal argument that she has the discretion to review the legality of county expenses.
Escambia County attorneys have argued that Childers has no discretion in determining the legality of payments and her role is “ministerial.”
Attorneys for the Florida Court Clerks and Comptrollers said the argument that a county clerk’s role simply as ministerial contravenes the state constitution, state law and previous case law stating the clerk must determine if county expenditures are legal, and the clerk’s role as a county auditor serves as “check and balance” to the county commission.
“Such responsibility, which can have personal and criminal consequences (for the clerk), necessarily involves decision-making, judgment, and, thus, discretion,” FCCC’s attorneys wrote.
Childers and the County Commission are involved in a legal battle stemming from a local county 401(a) retirement program created in 1997 for senior management and county commissioners.
FCCC’s legal brief did not address the legality of the county’s 401(a) program.
The program was rarely used until 2018, when it became widely known within county leadership that participating in the plan was much more personally lucrative than the state’s retirement system.
The cost to the county is the same for both plans. The state’s retirement system uses much of the county’s contribution for overhead costs, leaving a commissioner with about an 8% contribution into their state retirement account.
With the local 401(a) plan, a commissioner receives a contribution rate equivalent to 51.42% of their salary.
In 2018, Commissioner Robert Bender enrolled in the 401(a) plan and after the 2020 election commissioners, Steven Barry and Lumon May switched from the state retirement plan to the 401(a) plan.
Controversy arose around the plan when Barry sought to seek back pay for all the officials who, he said, were not properly informed of the plan, which included him and May, when they joined the county.
The back pay idea was scrapped after public outcry and opposition from Childers.
In January, Childers, arguing the plan violated state law prohibiting extra pay for elected county officials, refused to authorize any further payments under the plan after reducing payments to 8% in July.
Escambia County filed a lawsuit arguing the program was legal and Childers refusing the payments was beyond her authority and her role was “ministerial” and not “discretionary.”
“She is given no authority in the Florida Statutes to interpret laws and make policy decisions on her own,” attorney Troy Rafferty, who is representing the county, wrote. “The People elected the Commissioners to make laws and enter into contracts, and the People elected the Clerk to be a clerk.”
Childers counter-sued Bender, Barry and May arguing that the program was illegal for elected
officials and therefore the three commissioners had to repay all of their contributions received under the program.
Okaloosa Circuit Court Judge William Stone is set to hold a hearing on both cases Friday. .
Jim Little can be reached at email@example.com and 850-208-9827.