Is Escambia County's controversial retirement plan illegal? Judge will make the call soon.

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Attorneys for Escambia County and Clerk of Court Pam Childers faced off in a virtual hearing Friday afternoon laying out legal arguments for which path the dueling lawsuits over the county 401(a) retirement plan should follow.

Okaloosa Circuit Court Judge William Stone did not indicate one way or another which way he would rule and did not ask any questions of the attorneys during the more than two-hour hearing.

Stone said he would issue a written opinion for both lawsuits soon once he has considered the legal arguments of both sides.

Childers and the County Commission are in a legal dispute over the county’s local option retirement plan for county commissioners, a type of 401(a) plan created in 1997 for senior management and county commissioners.

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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, but in the local plan, commissioners receive a 51.42% from the county directly into their individual accounts. In the state’s retirement system commissioners only receive about 8% while the rest of the money is used for the state’s overhead costs.

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.

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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.

Childers cut the county’s contribution rates to close to 8% in July, in line with what a commissioner would receive in their retirement account if they were enrolled in the state’s retirement system, and in January cut the contribution to the three commissioners enrolled in the 401(a) plan completely.

Escambia County sued seeking an order from a court to force Childers to issue the payments on the grounds it was her legal duty.

Childers countersued, arguing that elected officials’ participation in the plan was illegal and the court should require Barry, May and Bender to repay any contributions they’ve received.

Childers filed a motion to quash the county’s first lawsuit while the county is seeking a dismissal of Childers’ countersuit.

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The hearing on Friday was over those two issues.

Attorney Ed Fleming, who is representing Childers, told the court that if the judge upheld the county’s initial lawsuit, it would mean Childers had no discretion when issuing payments on behalf of the county to determine if they were illegal.

“As a county auditor, the clerk serves as the watchdog of the Escambia County Commission, and that’s not my term, it’s a term that’s used by the courts,” Fleming said. “… The auditor’s role is clearly watchdog to the public treasury, not the lapdog of the County Commission who must do their bidding as directed, which is the position that the county took.”

Florida Clerk and Comptrollers, a nonprofit association of all 67 Florida county court clerks, filed a “friend of the court” brief last week in the case arguing that a clerk has the power to exercise discretion when determining the legality of payments.

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Attorney Bill Cash, who is representing the County Commission, didn’t dispute the Clerk has a watchdog role but argued Childers actions don’t fit that because she had approved payments to commissioners for at least two and half years.

“She is required to conduct that audit on every single payment that she makes,” Cash said. “She doesn’t get to pick and choose. I’m going to audit certain payments. I’m not going to audit other payments, under her own words, under her own case law, she’s got to do the audit on every payment. Which means she did the audit in the previous years when she said that it was OK. Something changed. It wasn’t the law, and it wasn’t the contract. It was something in the clerk’s mind.”

Cash also pointed out that if Childers knowingly made an illegal payment, she would be liable to face criminal and civil penalties.

Cash said the three commissioners have done nothing wrong other than check a box to enroll in a retirement plan offered by their employer.

“(The plans) cost the county the same, but they do provide different benefits,” Cash said. “The employees each made a decision that was best for them and their families, and they checked the box. Despite what she may be saying in the papers or in the press, there’s no allegation in the complaint that the county commissioners themselves created this program, that they engineered it for themselves, or that they did anything wrong.”

Cash argued the Clerk was motivated to act in the retirement case after a June 3, 2021, incident that made her seek retribution on the commissioners. Cash said he did not want to get into the details of the incident.

Chase appears to be referring to an alleged exchange between commissioners where May was reported to have made disparaging remarks about Childers following a County Commission meeting.

The News Journal reported on the incident on June 7, 2021, after Childers’ email admonishing the commissioners over the alleged exchange became public.

During the June 3, 2021, meeting, Childers spoke out against Barry’s back pay proposal which was still under active consideration at the time.

Fleming said it was a “false accusation” that Childers was acting to retaliate against the commissioners over the June 3, 2021, incident.

“Even if it were true, it’s irrelevant,” Fleming said. “Either the payments were legal, or they were not legal. And it doesn’t matter whether she loves these three commissioners or doesn’t particularly care for these three commissioners, that has no bearing on the issues that are before this court.”

During his rebuttal, Fleming also hit back on the argument that Childers audited every payment then suddenly changed her determination on the legality of payment saying it amounted to an argument that if the first illegal payment wasn’t caught, then they can continue forever.

“That’s an argument that never worked with my mom, and I don’t think it works with the court,” Fleming said.

Jim Little can be reached at jwlittle@pnj.com and 850-208-9827.

This article originally appeared on Pensacola News Journal: Escambia County retirement lawsuit: Attorneys spar in first hearing