United States District Court, M.D. Florida, Jacksonville Division
PATRICIA D. BARKSDALE, UNITED STATES MAGISTRATE JUDGE.
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.
December 29, 2016, Keane filed an amended complaint against
the Board. Doc. 4. He alleges the following facts.
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
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.
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.
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
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.
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 ¶
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.
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.
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.
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
city now contests the legitimacy of the SSVRP. Doc. 4 ¶
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