Pam Childers wins lawsuit: Escambia Commissioner's retirement plan unlawful, judge rules
An Okaloosa County Circuit Court judge ruled that Escambia County's local option retirement plan for county commissioners was unlawful compensation.
Judge William Stone upheld Escambia County Clerk and Comptroller Pam Childers' decision to withhold payments in an order issued Wednesday morning.
Stone said it was not lawful for elected officers like county commissioners to participate in the county's local plan and that compensation to county commissioners under the plan constitutes unlawful compensation.
"The County Commission is disappointed in the ruling and is considering its options," Escambia County spokesperson Andie Gibson told the News Journal.
Childers told the News Journal in a statement that she was "delighted" the court affirmed her decision to act as watchdog of taxpayer dollars "to reject the attempt by certain county commissioners to give themselves an illegal pay raise."
"This dispute started with a lucrative back pay attempt by Commissioner Steven Barry," Childers said. "Under the chairmanship of Commissioner Jeff Bergosh, this absurd pension was forced into unnecessary and costly litigation. It is clear that the evil present here needs to be corrected, and the commissioners who received this unlawful and exorbitant compensation will be compelled to pay it back."
Commissioner Mike Kohler also told the News Journal Wednesday afternoon he disagreed with the county's official statement by Gibson, and that he would vote against any appeal of the ruling.
Kohler, who was elected after the lawsuit began, 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.
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.
The trial ended without a verdict, as Stone asked for final closing arguments to be submitted in writing.
The ruling on Wednesday is the official conclusion of that trial.
Stone noted during the trial that no matter which way he rules, he knows the case is likely to be appealed.
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 cited other laws that specify elected officers are not the same as employees or personnel and a 2005 legislative analysis of the key law that makes clear the law is meant for county employees.
Because of his analysis of the law, Stone 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.
"Although the County maintains that participation in the Local Plan does not constitute compensation for the commissioners, this Court finds otherwise," Stone wrote.
The county had argued that the cost to taxpayers under the plan was the same, and Stone acknowledged that point in his ruling.
"On its surface, the argument has a simple appeal: it costs the taxpayers the same either way," Stone wrote. "However, that surface-level appeal cannot be the end of the inquiry."
Stone pointed out that if a commissioner served 12 years as an elected official under FRS, they would have $146,41.24 in personal benefits in their retirement plan, but under the local plan, the commissioner would have $693,604.68 which is 4.74 times as much as the FRS plan.
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.
Using his 12-year example, Stone found the FRS would be harmed by being deprived of $522,804 that would go to fund other retirement plans for FRS participants.
"... When a commissioner participates in the Local Plan, money that the Legislature intended to fundFRS instead goes to the commissioner," Stone wrote.
Stone said the local plan for county commissioners is contrary to the intent of the Legislature to apply uniform pay to elected county officials.
"To construe the statutes at issue in this case to find that the Local Plan as applied to county commissioners is lawful would constitute an absurd result," Stone wrote.
Read the order below:
This article originally appeared on Pensacola News Journal: Pam Childers wins lawsuit over Escambia Commissioner's retirement pay