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Keane v. Jacksonville Police Fire and Pension Fund Board of Trustees

United States District Court, M.D. Florida, Jacksonville Division

September 15, 2017

John Keane, Plaintiff,
v.
Jacksonville Police Fire and Pension Fund Board of Trustees, Defendant.

          ORDER

          PATRICIA D. BARKSDALE, UNITED STATES MAGISTRATE JUDGE.

         Before the Court are John Keane's opposed motion to disqualify the Office of General Counsel of the City of Jacksonville from further representing the Jacksonville Police and Fire Pension Fund Board of Trustees in this action, Doc. 17, the Board's response, Doc. 20, Keane's reply, Doc. 23, and the Board's opposed motion for leave to file a surreply, Doc. 24.

         Background

         On December 29, 2016, Keane filed an amended complaint against the Board. Doc. 4. He alleges the following facts.

         The Marvin B. Clayton Firefighter Pension Trust Fund Act, codified at chapter 175 of the Florida Statutes, calls for the creation of pension funds for firefighters throughout Florida, sets standards for firefighter pensions in municipalities throughout Florida, establishes a “Firefighter's Pension Trust Fund” in each municipality in Florida, and provides for the creation of independent boards of trustees to administer pension funds. Doc. 4 ¶¶ 7, 8; see Fla. Stat. § 175.021 (legislative declaration concerning the Act). The Act contains provisions on the boards' powers, responsibilities, and independence from municipalities in which they operate. Doc. 4 ¶¶ 9-12. The Marvin B. Clayton Police Officers Pension Trust Fund Act, codified at chapter 185 of the Florida Statutes, contains similar provisions for pension funds for police officers. Doc. 4 ¶¶ 13-15.

         To implement those laws, the Florida legislature established by special act the Jacksonville Police and Fire Pension Board of Trustees as an independent agency and empowered it to enter into contracts, leases, or other transactions; employ and fix the compensation of an administrator and any consultants; and have all other powers it reasonably determines necessary or appropriate to the performance of its duties in administering pensions for employees of the Jacksonville Sheriff's Office and Jacksonville Fire and Rescue Department. Doc. 4 ¶¶ 6, 16-17; see Laws of Fla., ch. 90-443, § 2; Laws of Fla., ch. 92-341, § 1; Charter of the City of Jacksonville, Article 22, § 22.04. The special act distinguishes Board employees from city employees and repeals any inconsistent provisions in the city's charter. Doc. 4 ¶¶ 18-19.

         In the past, the Office of General Counsel has claimed it cannot represent the Board because chapters 175 and 185 “create a present or potential conflict of interest” and the Board is not the city but an independent agency. Doc. 4 ¶ 21. The Board is “an independent agency from the City [of Jacksonville], created wholly by state law, that acts as the sole judge of the terms and administration of the Fund, subject only to judicial review.” Doc. 4 ¶ 22.

         Keane is the Board's former executive director and administrator. Doc. 4 ¶ 4. His initial employment contract with the Board was effective August 1, 1990. Doc. 4 ¶ 23.

         On September 1, 1991, the Board entered into a financial services contract with the city for the city to provide administrative services for the Board, including distributing pension payments as determined by the Board. Doc. 4 ¶ 24; Doc. 4 at 22-26.

         On September 20, 2000, the Board adopted a Senior Staff Voluntary Retirement Plan (“SSVRP”) to compensate its “senior staff members, ” some of whom were ineligible to participate in a pension plan for city employees. Doc. 4 ¶ 25; Doc. 4 at 38-56. The Board made itself the SSVRP's exclusive administrator. Doc. 4 ¶ 27.

         Under the SSVRP, a member with five years of Board service who contributes seven percent of his or her compensation may receive retirement benefits upon turning 65 in the form of biweekly payments of three percent of the average final compensation for each year of credited service. Doc. 4 ¶¶ 28, 29. The Board has an employer identification number with the Internal Revenue Service for SSVRP members and contributes to social security for SSVRP members, while the city makes no such contributions for city employees. Doc. 4 ¶ 20.

         On June 20, 2003, the Board's financial services contract with the city was restated and continued to obligate the city to distribute pension payments as determined by the Board. Doc. 4 ¶ 32. Since the SSVRP's inception, the Board has reported the SSVRP's existence and cost in annual budget submissions to the city and recorded contributions in its own database. Doc. 4 ¶ 33.

         On February 12, 2004, Keane's employment contract with the Board was restated. Doc. 4 ¶ 30; Doc. 4 at 28-56. (The restated contract has been amended five times. Doc. 4 ¶ 30.) The restated contract incorporates the SSVRP and attaches it as an exhibit. Doc. 4 ¶ 31; Doc. 4 at 28-56. Since Keane began participating in the SSVRP, he has complied with all SSVRP requirements, including making all required contributions. Doc. 4 ¶¶ 34, 37.

         On September 25, 2015, the Board approved Keane's application for retirement, and effective October 1, 2015, he began receiving benefits under the SSVRP. Doc. 4 ¶¶ 36, 37. He continued to receive benefits after a cost-of-living adjustment on January 1, 2016. Doc. 4 ¶ 38. Two others also receive benefits under the SSVRP. Doc. 4 ¶ 35.

         The city now contests the legitimacy of the SSVRP. Doc. 4 ¶ 39.

         On August 9, 2012, John Crescimbeni (a city councilman) asked Cindy Laquidara (the city's then-General Counsel) to provide an opinion on the Board's authority to establish the SSVRP. Doc. 4 ¶ 40. Laquidara issued a memorandum suggesting the Board lacked authority to establish the SSVRP based on a reading of Article 16 of the city's charter providing only the City Council may amend the pension system for city employees. Doc. 4 ¶¶ 41, 42. In response, the Board sought an opinion from Robert Klaussner (the Board's ...


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