Escambia Clerk Pam Childers to county commissioners: repay "unlawful" retirement funds

After a landmark decision by an Okaloosa County judge who ruled that Escambia County's local option retirement plan for county commissioners was unlawful compensation, Escambia Clerk of Court and Comptroller Pam Childers asked commissioners who enrolled in the plan to return the money they’ve already received from it.

Childers made the request during Thursday’s regular board meeting.

She briefly recounted how the issue wound up in litigation, saying that she was asked if the plan was legal, and she replied that it was not. Childers then read Judge William Stone’s ruling upholding her decision to withhold payments into the record of the meeting, prior to her ask.

“I am formally and publicly requesting that the repayment of the funds back into the county's treasury,” said Childers. “I would hope that we could work cooperatively on this and jointly communicate with (the Florida Retirement System). It is not in the best interest of Escambia County as a whole to further pursue this dispute with the district court of appeals. This was a long and costly, an unnecessary litigation.”

Escambia County Commissioners Steven Barry, Jeff Bergosh, and Lumon May did not respond to Childers’ request. Bergosh has never participated in the local option retirement plan, but Barry and May did, along with former Commissioner Robert Bender.

Escambia Commissioner Mike Kohler, who also has not enrolled in the plan, supported Childers’ request. He said the money she requested should not only be returned, but that the county should not appeal Stone’s decision.

Kohler was elected after the lawsuit began and was the only commissioner to vote against an annual rate increase under the local retirement plan for senior-level managers in August, citing the plan's exorbitant rates.

“Sometimes you're the nail and sometimes you're the hammer, and this week the board's been the nail,” Kohler said. “I'd like to see the board work with the clerk. I've told you that publicly, I obviously didn’t support that, but I hope we can move on collegially.

“Is this something that we could entertain giving back?” Kohler asked.

Escambia County Administrator Wes Moreno said that it was an issue they could discuss, but nothing more was said and there was no discussion of her ask.

Childers also requested that her disbursement staff once again have access to “OpenGov,” a software system used by Escambia County that offers cloud software for public sector accounting, planning, budgeting, citizen services and procurement.

She said their access was “turned off immediately” after a conversation between her internal auditor and a member of the county staff on a procurement matter, several months ago.

“This action is costing my staff time, and it inhibits our ability to efficiently audit and timely process payments,” Childers said. “In the name of transparency, I would appreciate your cooperation for access to systems. I show the same respect to you.”

Kohler asked Moreno why Childers no longer had access to the system, and he replied the decision was made by a former department director without any permission or discussion with administration.

According to the clerk’s office, Bender would need to return $102,089.23 to the county, Barry owes $28,098.84, and May owes $24,857.74. Childers said those amounts are for the principal only. The entire account, plus interest, will be required to pay back.

Under the county's current policy, commissioners participating in a local retirement plan ? in addition to their $98,501 salary ? would be entitled to the county contributing 58.68% of that yearly salary to their personal retirement account. That amounts to $57,800 annually.

Former Commissioner Robert Bender began participating in the plan in 2019, and Commissioners Steven Barry and Lumon May began participating in the plan after their reelection in 2020.

Childers blocked contributions to the local retirement plan for county commissioners in 2022.

Escambia County sued Childers to force her to authorize the payments, arguing the retirement program was authorized under a Florida law passed in the late 1990s and that Childers lacked the authority to block the payments. The case has proceeded slowly over the last two years before winding up in a trial to establish the facts of the case in February.

Stone ruled that the key law cited by the county did not apply to county commissioners because they were elected officers, and the term the law uses is "county personnel."

Stone also said the county lacked the authority to compel Childers to make the payments. He said he could end his order there, but he also wanted to resolve the question of whether the plan constituted unlawful compensation.

Stone said the local plan does harm to the FRS and maintains that the health of the FRS is a concern mentioned in the Florida Constitution.

This article originally appeared on Pensacola News Journal: Escambia Clerk wants commission to return "unlawful" retirement funds