HomeMy WebLinkAboutDocumentation_Regular_Tab 05A_09/16/2004 1
MEMORANDUM
TO: Mayor and Council
FROM: Gwen E. Carlisle, Village Clerk �
DATE: September 13, 2004
SUBJECT: Postponement of Ordinance 591, Dual Office Holding Issue, to
October 7, 2004 Village Council Meeting
For your information, due to impending Hurricane Frances the Second Public
Hearing of Ordinance 591 was inadvertently not advertised.
The Clerk's Office is rescheduling the Second Public Hearing for the October 7,
2004 Village Council Meeting.
MEMORANDUM
TO: Mayor and Council
FROM: Michael R. Couzzo, Jr., Village Manage� �
DATE: September 10, 2004
SUBJECT: Dual Office Holding Issue
At the Village Council meeting on July 8, 2004, I was requested to provide the
attached information for your review and consideration. This information was
reviewed and developed with both the Village Attorney and the Pension Board
Attorney, and technically satisfies the request.
First reading of this ordinance was held at the August 12, 2004 Village Council
meeting and is presented on the September 16, 2004 agenda for considerarion of
second reading.
ORDINANCE NO. 591
AN ORDINANCE OF THE VILLAGE COUNCfL OF THE
VILLAGE OF TEQUESTA, PALM BEACH COUNTY,
FLORIDA, AMENDING CHAPTER 2, ADMINISTRATION,
AT ARTICLE II, VILLAGE COUNCIL, TO INCLUDE A NEW
SECTION 2-33 TO PROVIDE THAT MEMBERS OF THE
VILLAGE COUNCIL MAY SERVE IN AN EX OFFICIO
CAPACITY AS MEMBERS OF THE PUBLIC SAFETY
PENSION BOARD OF THE VILLAGE; PROVIDING FOR
SEVERABILITY; PROVIDING FOR REPEAL OF
ORDINANCES IN CONFLICT; PROVIDING FOR
CODIFICATION; PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE VILLAGE COUNCIL OF THE VILLAGE OF
TEQUESTA, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS:
Section 1. The Code of Ordinances af the Village of Tequesta is hereby
amended at Chapter 2, Administration, Article II, Village Council, to include a new
Section 2-33 to read as follows:
"Sec. 2-33. Council members may serve on Public Safety
Pension Board
Members of the Village Council may serve in an ex officio capacity
as members of the Public Safety Pension Board of the Village of
Tequesta."
Section 2. Severability. If any provision of this Ordinance or the application
thereof is held invalid, such invalidity shall not affect the other provisions or applications
of this Ordinance which can be given effect without the invalid provisions or
applications, and to this end, the provisions of this Ordinance are hereby declared
severable.
Section 3. Repeal of Ordinances in Conflict. All other ordinances of the
Village of Tequesta, Florida, or parts thereof which conflict with this or any part of this
Ordinance are hereby repealed.
Section 4. Codification. This Ordinance sha{I be codified and made a part of
the official Code of Ordinances of the Village of Tequesta.
Section 5. Effective Date. This Ordinance shall take effect immediately upon
its passage and approval, as provided by law.
1
THE FOREGOING ORDINANCE was offered by Counciimember
, who moved its adoption. The Ordinance was seconded
by Councilmember and upon being put to a vote, the
vote was as follows:
FOR ADOPTION AGAINST ADOPTION
The Mayor thereupon declared the Ordinance duly passed and adopted this
day of ,2004
MAYOR OF TEQUESTA
ATTEST:
Village Clerk
N:\JCR\13153 ORDNANCES\Sec 2-33.DOC
2
HANSON� PERRY � JENSEN, P.A,
4OO EXECU7IVE CENTER DRIVE, SUITE ZO7 — WEST PALM BEACH F�oaion 33401-2922
LL HANSON* TELEPHONE (561) 686-6550
njhanson�hpjlaw.com FACSIMILE (561) 686-2802
ANN H. PERRY
aperry�hpjlaw.com
BONNI SPATARA JENSEN July 13 � ZOO4
bsjensen (�? hpjiaw.com
i AL50 ADMITTED IN N.Y.
VIA FACSIMiLE AND FIRST CLASS MAIL
i1��chaei Co�azzo, Village Manager
Village of Tequesta
Post Office Box 3273
2�� �equesta nrive, Suite 300
i�eE.,�.��sta, Fl;;r�da 3�4�9-s�a73
Re: Tequesta Pubtic Safety Officers' Persian Pian
Board of Trustees - Dual Office Holding
Our File Number 1011.0006 __
L�ear Mr. Cuozzo:
Enclosed is copy of a recent Florida Attarney General Opinion regarding d�aal r,fficP
hc.�Edirg af�d the iec�a! requirem�nts to permit a Council person ta serve as a member of a
i�Jlunicipai Pznsion Board as a part �f his/her ex officio duties. G��rr�ntly, Cc�.ar!ci�waman
G�nr,.o serv�s on the �'equesta Pt�blic Safety Officers' Pension F'!a� Board of Trustees.
It is the opinion of the Attorney General that to avoid dual office holdin�, th� `Ji9lage
of� Tequesta Code ("Code") must impose upon Village of Tequesta Council ("Council")
m�mbers the ex officio duty of serving as a member of the Board. This opinion is bas�d
an hi� interpretation of the case of City� of Orlando v. State Department of lnsurance, 528
S�.2d 468 (Fla. 1 DCA 1988).
As far �s I arn aware, there is not a provision in the Code addressing such an �x
. 4t. -. r+�......�:1. !4..r. �.-lr.�.+a��/"1 L�'1�CA
c�fficio r�spansibiiity fnr C,ouncii memqers. Frevic�«5�y ��a� ���, ��,� .:� ��uwi--- � -
matters by mo�ion at a Council meeting.
Tne P�nsion Pl�n itself does not address the issue. The Pensian Pian la�guage
�racks the language of Florida Statutes §§175 and 185. The Pension Plan states:
The P�afo��c Safety Board shall consist of five (5) Trustees, two (2) of whom,
unless otherwise prohibited by law, shall be lega� residents of the Village,
who shail be appointed by the Tequesta Village Council, and one (1 j of
whom shall be a full-time Police Officer member of the System and one (1)
H:\Tequesta PS 1011\Villaye�Manager�dual effice.wpd
�13
Michael Cuozzo
July 13, 2004
Page 2
of whom shall be a full-time Firefighter member of the System. The fifth (5'
Trustee shall be selected by a majority vote of the other four (4) Trustees.
The State entity responsible for oversight of these type funds (the Municipal Police
Offi�ers' and Firefighters' Pension Trust Funds Office) has recommended that language
establishing the ex ofificia responsibiliti�s nat be cos�ta�n��i within the p�:�sian pi�ri its�If,
but another section of the Code or Village Charter should provide for such � designation.
I agree with that recommendation.
i� he Pension Plan sets out the general crifieria for h�w members are appoin#ed ta
the Boards of Trustees. Should the Council wish to designate that a Counci! Member fill
the Councii's appointed positions, then that designation should be part of the Council's
duties and responsibilities. The ex officio language should be set forth in a p�ace that wil!
be reviewed and administered by the Council and not just the Pension Board of Tr�st�es.
Chapter 2, Article 2 of the Code is titled "Village Council." An additiana! section
cQUld be added �provides that the Village imposes upon Council members an ex officio
responsibility to sit on the Public Safety Pension Board of the Village. There may alsa be
ather Boards that Council members sit on that can be set forth in the same sectian.
ff you have any questions or if I may be of any assistance to you at all, please do
not hesitate to contact me. Additionally, since the Tequesta Public Safety Board already
has a Council membe� on the Board, please keep me informed as to the Uilla�e's
resolution of this matter.
Sit �Cci CrY Y�i,; �;
� r � `� � }J` -�_ ��. ..�. . .. - ...� .
��`�'� �,�i � . `>_�
i _ y P J �
onni S. Jensen ;�� ��•
BSJ/ka
Enclosures
Copy: Board of Trustees
Dan Gallagher
H:1Tequesta PS 1011�Villa�e\Manager\dual of �ce.�vpd
Page 1 of 6
Florida Attorney General
Advisory Legal Opinion
Number: AGO 2004-05
Date: February 13, 2004
Subject: Dual office holding, pension board
Mr. Robert D. Pritt
Naples City Attorney
735 Eighth Street South
Naples, Florida 34102-6796
RE : DUAL OF�'ICE HOLDIIaTG-R�T:�.�F.MENT-PL�LICE O�FICERS i'�EN�ION BOARD-°
FIREFIGHTERS PENSION BOARD- MUNICIPALITIES-OFFICERS--members of pension
board simultaneously serving on another pension board; city council member
serving on pension board. ss. 175.061, 185.05, Fla. Stat.; Art. II, s. 5
(a), Fla. Const.
Dear Mr. Pritt:
Yo tisk substantially the following questions:
1. May a person serve on a municipal firefiqhters pension board
administering a local plan under Chapter 175, Florida Statutes, while
simultaneously serving on a municipal police pension board administering a
local plan under Chapter 185, Florida Statutes?
2. May a person serve on a municipal general employees pension plan while
simultaneously serving on the municipal firefighters pension board or
police pension board?
3. May a city council member serve on one or more of the above described
boards as part of his or her ex officio duties?
As your questions are interrelated, they will be answered together.
Article II, section 5(a), Florida Constitution, provides in part:
"No person shall hold at the same time more than one office under the
government of the state and the counties and municipalities therein,
except ... any officer may be a member of a... statutory body having
only advisory powers."
Th' ;onstitutional provision prohibits a person from serving in more than
on� �cate, county, or municipal office simultaneously. The prohi.bition
applies to both elected and appointed offices.[1] While there is no
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definition of the term "office" in the Constitution, the Supreme Court of
Fl�rid.a has stated that the term "implies a delegation of a portion of the
s :eign power to, and the possession of it by, the person filling the
ot_�ce ...."[2] Within the scope of the term are the concepts of
tenure, duration and duties in exercisinq some portion of the sovereign
power, conferred or defined by law rather than by contract. In contrast,
an "employment" does not "comprehend a delegation of any part of the
sovereign authority."[3]
This office has previously stated that membership on a board of trustees
empowered to administer a pension fund constitutes an "office" for
purposes of Article IT, section 5(a), Florida Conatitution.[4] For
example, in Attorney General Opinion 03-27 this office stated that the
administration of public funds and the accomplishment of the
responsibilities delegated under Chapter 175, Florida Statutes, by the
board of trustees of a pension fund for firefighters represent the
exercise of the sovereign powers of the state, and, therefore, deno�e an
"office" rather than an employment. Similarly, the duties imposed under
Chapter 185, Florida Statutes, regarding pension plans for police officers
have resulted in this office concluding that members of the board of
trustees of such funds are officers for purposes of Article II, section 5,
Florida Constitution.[5]
In Attorney General Opinion 90-45, this office concluded that membership
or ��e board of trustees of a city's general pension--which administered
ar, perated the general retirement systeai, including the establishment of
uniform regulations for the administration of the fund, determining
eligibility for participation in the fund and retirement allowances,
conducting annual actuarial evaluations of the system, and processing
applications for participation in the fund--was an office for purposes of
dual officeholdinq. A review of the Naples city code regarding the general
retirement system indicates that the board of trustees is responsible for
the general administration and management of the system. The city code
refers to a term of office for the trustees, with each trustee taking an
oath of office before assuming the duties of trustee.[6]
Thus, the board of trustees of the city firefiqhters' retirement trust
fund, a local plan under Chapter 175, Florida Statutes, and the board of
trustees of the city police officers' retirement trust fund, a local plan
under Chapter 185, Florida Statutes, as well as the board of trustees for
the city general retirement system, would all appear to constitute offices
for purposes of Article II, section 5(a), Florida Constitution.
The courts and this office, however, have recoqnized that the i.mposition
�f additional or ex officio duties on a municipal officer under the city
code or charter to serve on the board of trustees of the police officers'
3nd firefighters' pension trust fund would not violate the constitutional
iu �fficeholding prohi.bition. [7] As the Supreme Court of Florida stated
in �,�th Club, Inc. v. Dade County, [8]
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Article II, section 5(a) was manifestly fashioned to ensure that multiple
st county, and municipal offices will not be held by the same person.
i: rlying this objective is the concern that a confliet of interest �ill
ar�se by dual officeholding whenever the respective duties of office are
inconsistent. Where additional duties are assigned to constitutional
officers and there is no inconsistency between these new and pre-existing
duties, however, the dual officeholding prohibition does not preclude such
an assignment. In such cases, newly assigned duties are viewed merely as
an addition to existing responsibilities.
In City of Orlando v. State Department of Insurance,[9] the First District
Court of Appeal specifically considered the applicability of the dual
officeholding prohi.bition to municipal officials serving on the board of
trustees of municipal police and firefighters pension trust funds. The
court concluded that such service did not violate Article II, section 5
(a), Florida Constitution, statinq:
"[T]here is nothing inherently inconsistent or incompatible in service by
municipal officials on these Boards so as to say that it presumptively
violates the prohibition aqainst dual officeholding in Article II, Section
5(a) . Bath Club, Inc. v. Dade County, 394 So.2d 110 (F1a.1981) ; Gryzik v.
State, 380 So.2d 1102 (Fla. lst DCA), petition for review denied, 388
So.2d 1113 (Fla. 1980)."
T? for example, this office stated in Attorney General Opinion 94-66
ti. a board of county commissioners may by ordinance designate the
members of the county commission to serve as the meaabers of a board of
adjustment when such additional duties are imposed upon the county
commissioners by virtue of their membership on the county commission.[10]
Similarly, in Attorney General Opinion 94-98 this office concluded that
where the city code required the mayor or other member of the city council
as well as the chief of police and the fire chief to serve on the board of
trustees of the police and firefighters pension fund, such service by such
officers would not violate the constitutional prohibition against dual
officeholdinq contained in Article II, section 5(a), Florida Constitution.
The Naples city code provides that the board of trustees of the police
officers' retirement trust fund consists of five members, two of whom
shall be appoi.nted by the city council and two of whom shall be police
officers, with the fifth member chosen by a majority of the previous four
members.[11] Similarly, the code provides that the board of trustees of
the firefighters retirement trust fund consists of five members, two of
whom shall be appointed by the city council and two of whom shall be
firefighters, with the fifth member chosen by a majority of the previous
four members.[12] The board of trustees of the city qeneral retirement
system consists of:
"( )ne member of the city council to be appointed by the city council.
(2) �ne resident of the ca.ty with pension experience to be appointed by
the city council.
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(3) One member of the administrative staff, also to be a member of the
pr -ion plan, to be appointed by the city manager.
( �ne nonbargaining unit member to be appointed by the city manager.
(5) One bargaininq unit member to be appointed by the city manager from a
list of three bargaining unit members submitted by the president of the
barqaining unit.
(6) One retiree, currently receiving benefits from the qeneral einployees
retirement system, to be selected by the current board of trustee meanbers.
(7) One resident of the city with expertise in financial markets, to be
selected by the current board of trustee members."[13]
The city code provides that notwithstanding any other section of the code,
members of the board of trustees of the general employees retirement
system "shall be permitted to serve on any other board duly formed by the
city."[14]
While the city code requires two police officers to serve on the board of
trustees of the police officers' retireiaent fund and two firefiqhters to
serve on the board of trustees of the firefiqhters' retirement fund,
nothinq in the code imposes upon a member of the board of trustees of one
of those boards the additional or ex officio duties of serving on the
other board. Accordingly, I am of the opinion that an individual's
simultaneous service on the municipal firefighters pension board and the
municipal police officers pension board would violate Article II, section
5' Florida Constitution.
Similarly, service by the same person on the municipal general employees
pension plan while also serving on either the firefighters pension board
or the police officers pension board would appear to violate the
constitutional prohibition against dual officeholding. The city code does
not impose such additional duties on a member of the general employees
pension plan. While the city code states that members of this board may
serve on other boards formed by the city, I cannot conclude that such
general language is sufficient to impose on such members the ex officio
duties of serving on another board that constitutes an office for purposes
of the constitutional dual officeholding provision.
The city code, ho�vever, does impose such ex officio duties on a city
council member to serve on the general employees pension board. Such
council msmber, who is to be appointed by the city council, may therefore
serve on the general employees pension board without violating Article II,
section 5(a), Florida Constitution. The city code does not, however,
impose such ex officio duties on a member of the council to serve on
either the police officers pension board or the firefighters pension
board. In the absence of such an ex officio designation, a member of the
city council could not simultaneously serve on either the police officers
per board or the firefighters pension board.
Sincerely,
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C Lie Crist
Attorney General
CC/tjw
-------------------------------------------------
[1] See Ops. Att'y Gen. Fla. 96-24 (1996), 80-97 (1980) and 69-2 (1969).
[2] See State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919).
[3] Id.
[4] See, e.g., Ops. Att'y Gen. Fla. 96-24 (1996), 94-98 (1994), and 86-106
(1986) .
[5] See Op. Att'y Gen. Fla. 00-38 (2000).
[6] See ss. 50-201 and 50-202 of the Naples City Code.
[7] See, e.g., Op. Att'y Gen. Fla. 94-98 (1994); and City of Orlaado v.
S�ate Department of Insurance, 528 So. 2d 468 (Fla. lst DCA 1988).
[1 .94 So. 2d 110, 112 (Fla. 1981).
[9] 528 So. 2d 468 (Fla. lst DCA 1988).
j10] And see Op. Att'y Gen. Fla. 81-72 (1981) (city council as legislative
body of the municipality may impose by ordinance the ex officio duties of
the office of city manager on the city clerk).
[11] See s. 50-401(b) of the city code. Cf. s. 185.05(1)(aj, Fla. Stat.,
stating that the membership of the board of trustees for local plans for
police officers only shall consist of five members, t�o of whom shall be
appointed by the legislative body of the municipality and tmo of whom
shall be �leeted by a majority csf the poli�g offic�rs who are members af
such plan �ith the fifth meanber selected by a majority of the previous
four memb�ars .
[12] See s. 5�-311 (b) of the city code. Cf, s. 175. 061 (1) (a) , Fla. Stat. ,
stating that the membership of the board of trustees for local plans for
firefighters only shall consist of five members, two of whom shall be
appointed by the legislative body of the municipality and two of whom
shall be elected by a majority of the firefighters who are members of such
plan with the fifth member selected by a majority of the previous four
me rs.
[13] Section 50-201(a) of the city code.
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['"i Section 50-201(b) of the city code.
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BOARD OF TRUSTEES
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND
MEETING MINUTES .'�`,, �� � �
ul 1 2004 �"� � � �• '
Jv• � ?
PAGE 6
was set for interviews. Attorney Jensen indicated she would not be able to attend. Mr.
Gallagher was to coordinate with the General Employees' Pension Board since they had
picked Dana and Contravisory and Northstar to be interviewed.
Boardmember Sabin left the meeting at this point at 1030 a.m.
Mr. Bogdahn explained recapture fees, and that the boazd might want to hire a recapture
broker, which would be the board's broker. A recapture agreement would not cost the
boazd anything, and he would bring an agreement to be considered. A questionnaire
would be used as a guide to be sure each firm was asked the same questions. Chair
Weinand requested that the spreadsheet be provided to the board ahead of time. A
snapshot page would be prepazed for each firm as well. Chair Weinand confirmed with
Mr. Bogdahn that this fund and the General Employees' fund did not have to hire the
same manager.
Mr. Bogdahn described the proposed format for the August 9 meeting, which would begin
at 8:30. Approximately 15 minutes would be spent going over and discussing materials
the board had received ahead of time. The managers would be told they did not have to
focus on performance numbers—Mr. Bogdahn would already have those—but should
focus on their philosophy, style and how they got to that, and the risk and volatility curves
they have in place, etc. Each firm would be allowed 30 minutes to make a presentation,
then there would be 10 minutes for questions. The 30-minute presentation time would be
strictly enforced—they would be given a 5-minute warning; but if the board ran over their
10-minute question period that would be fine. The firms would be scheduled and each
firm would know when their time was. After all presentations, the board could have a
general discussion, and individual boards could vote for the manager they wanted.
Northstar would be the last presenter. Mr. Bogdahn indicated he would contact the
presenters that day and send the questionnaire, and would request them to provide their
information to the Village the week of July 26.
V. b. DISCUSSION OF DUAL OFFICE HOLDING
Attorney Jensen commented it was her understanding that the board needed to create a
resolution indicating the issues and the proposed resolution. Vice Chair Genco responded
that would work really well, and also a summary, which Attorney Jensen had already
provided, but assurance was needed as to what this board wanted before it was moved to
Council. Vice Chair Genco commented that it was supposed to be done by resolution
because the resolution would resolve that the board wanted to see whatever it was, as faz
BOARD OF TRUSTEES �
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND � ;
MEETING MINUTES �°;�-��';� ,,> �.��
J�v 1, 2004 ��� -
PAGE 7 �
as what this board was as a composite, and once the board made a recommendation that
this be the composite of the pension board, then the Council would act on that and either
decide that is what they want or don't want. Attorney Jensen commented there were two
Council appointees--two people on this board were appointed by the Village Council; so
the Council could designate how they wanted to fill those positions. Attorney Jensen
recommended it be someplace else because those were their appointees, so they could
decide if they wanted a position filled by a person who was a Village Council person or
not. Vice Chair Genco commented this discussion here was whether this boazd wanted to
maintain two Village Council appointees. Attorney Jensen advised there must be two
Village Council appointees, whether from the Village Council members or not was the
Council's decision; but this Board was mandated by law to have two people that are
appointed by the Village and two members elected from the membership, and a fifth
member elected by the members of the board. Chair Weinand recommended that this
board put the Village Council on notice that the Charter is not set up properly to do it
because of the dual holding of office, and let them move forward. Vice Chair Genco
agreed, and to make a recommendation to Council from this boazd with the board's
attorney present, and she would hopefully be there, and if there were any questions they
could be answered. Vice Chair Genco stated that was why this was set up the way that it
was, and so far, she had been the dua.l person, and what ended up happening was she was
usually the person who had to expla.in things to everyone else, and that was the reason she
would like to keep that format if it was the wish of the board, unless the board said they
did not want a Council member on the board necessarily, or if it was the wish of the
Council. Attorney Jensen clarified it really was the wish of the Council, and she wanted
that to be clear. Vice Chair Genco stated the board had to delineate it for posterity
because the Council positions changed, and she did not think the board positions would be
changing as frequently as the Council positions, and that was the reason it was very
important to delineate for the Council what the composition of this boazd was and explain
to them that having a Council member on this board was a benefit, and asked if that
should be stated. Attorney Jensen stated from a legal perspective she was concemed
because it is the Village Council's opportunity to appoint and they may appoint anyone
they want. Vice Chair Genco responded she understood that and that was why the boazd
needed to make a recommendation to say either the Council appoints two people one of
which shall be a Councilmember, or you may appoint any two people. Attorney Jensen
stated this board did not have that authority. Vice Chair Genco responded this board did
have the authority to make any kind of a resolution to send to the Council, but then it was
up to the Council to decide if they wanted to take action to do that. Attorney Jensen stated
she understood, but her legal opinion to this boazd was not to take that step. Her advice
was to say to the Council that there was an issue with their current appointment and ifthey
BOARD OF TRUSTEES
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND
MEETING MINUTES
M,�� � r� ,.. ;
Ju� � � Zv�l� � 1` � °: �"��.. i
PAGE 8 � _
E
want to continue with a Village Council person on this boazd they needed to make some
change in their documentation. Vice Chair Genco commented they would not understand
that and the Village Attorney would say the exact same thing as Attorney Jensen and that :
did not make the consistency, which was what she was concerned about. Chair Weinand
commented from an employee standpoint, he liked having Vice Mayor Genco on the
board because of her knowledge in this area, and it was easier to explain pension changes
to the Council, but he understood what Attorney Jensen was saying that the board really
could not do that. Vice Chair Genco commented she did not understand why the board
could not do that. Attomey Jensen advised it was because it was the Village Council's
appointment they may appoint whoever they wanted to this board, and the boazd could
not be more restrictive than the legislation because the board's marching papers from the
State, which were pretty strict, said who belonged to this board; and the Village Council
should be given its freedom to say who they wanted for this board of trustees. Vice Chair
Genco commented she might not be involved in this in another year or five years, but the
first thing she saw when she joined this board was all the problems in the plan and trust
documents. She had ended up selling the Village Council on a lot of the changes that had
been made and literally had to beat some people up to get some things changed, and had
she not been on the Village Council some of the changes would not have been made as
quickly or as easily as they were. Attorney Jensen advised if the board wanted to preserve
this position as a Village Council position, her legal concern was overstepping the bounds
of the board as to who they appointed, because they could appoint anyone they wanted,
just as the members could elect anyone who was a member of the fund. Vice Mayor
Genco responded, so what Attorney Jensen was saying was this board could not make a
recommendation. Attorney Jensen responded the board could explain to the Council how
a Council member could be kept on this boazd. Chair Weinand commented Attorney
Jensen could write that out for the Council so it would be cleaz, because it was confusing,
but it could be explained that it was the Council's obligation to appoint two members to
this boazd and if they wished to continue with a Council member on the boazd how it
could be done. Attorney Jensen advised if the Village Council wanted to continue with a
Council member on the board, they needed to do was establish some rule (other than just a
motion) that they will have a Council Member on this board. Vice Chair Genco asked if
it would be a violation if the Council passed a resolution recommending or stating that.
Attorney Jensen responded that it was their responsibility to state if they wanted a Council
member on this board. Chair Weinand asked if Attomey Jensen had checked on his
position, if he could remain as a member of the board and as Fire Chief, to which the
attomey responded his position was fine. Discussion ensued whether the board should
make a resolution of how to do it or authorize Attorney Jensen to write a letter.
BOARD OF TRUSTEES
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND ;
MEETING MINUTES °� '
ul 1 2 � � �
J y , 004 � ��� � 1 �
PAGE 9 '
Attorney Jensen recommended the board make a motion to notify the Village Council that
there was an issue with dual office holding that they needed to resolve at their level and make
a determination whether they were including as an ex officio duty the responsibility for a
Council member to be on this board, which was essentially the AGO's opinion. The
Attorney General had issued an opinion that in order to have a Council person on the boazd
of trustees, one of the ex-officio duties of the members of the Village Council had to be, to
be a member of the board. Attorney Jensen advised there would be no change to the trust
document itself.
MOTION:
Vice Chair Genco made a motion stating that the pension board is advising the Village
Council that it will have to make a change to its charter or ardinance to address the
appointment of seats on the pension board and that the Coancil shall have to appoint
two members of each pension board and it will have to amend the chas-ter or
ordinances to deal with dual office holding. During discussion of the motion,
Boardmember Lucia commented he was unclear about the whole situation if the
Council had already stated that they did aot want dual o�ce. Attorney Jensen
egplained it was a state law that prohibited dual office 6oIding. Boardmember Lucia
asked why it was originally established, if it was a conflict of interest. Attorney Jensen
ezplained that there were cases in the 1980's and the Attorney General had found it
was not a dual ot�ice holding issue as tong as it was provided that these people could be
on these boards, and the Council had already appointed people. It was not until earlier
this year when the Attorney General came up with an opinion that 6asically said it was
not enough that the Village Council just appoint people, they must actualiy have some
sort of a provision that said it is our plan that we have a Village Council member on the
board of trustees. This had resulted in issues in other municipalities aad municipalities
had to make sure t6is was included as an ez officio duty. Attorney Jensen eaplained
she was recommending at this point that the Village Council make � determination
about its dnat appointment to the board, and if they wanted to continue with dual
appointment they had to have somewhere in their ordinance or charter information
that said, we have two seats and we have decided that �ne of those should be filled by a
Village Council member as an eac officio duty, or none of those will be filled by a
Council member, or both of those will be filled by a Village Council member.
Essentially, it would protect the person—Vice Chair Genco at this point—from dual
office holding issues. Members of this board could not sit on another board because
that wouid be dual office holding—t6e only exception was for Village Council members
to have ex officio duties. Vice Chair Genco commented that when one looked at it in
the long run, if there were significant underperformance and investments were not
BOARD OF TRUSTEES
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND _
MEETING MINUTES ' 1 � �� '
july 1, 2004 - p �
PAGE 10
ac6ieving the 8% from the actuariai study, the Village was the entity that would have to
raise its taxes in order to fund any deficiency in the pension plan; and by maintaining a
Council person who was already involved in thiags she was hoping that person would
be able to keep the Village's interest first and foremost, in addition to the responsibility
of dual capacity as a pension member to keep first and foremost as � pension member
to protect the people w6o were participaNng in this plan. Vice Chair Genco advised at
one point the Village Council had been the pension board but laws had been passed to
prevent that because that was a conflict, and what ended up happening was the
beneficiarfes of the plan were no longer being taken care of the way they should be.
Boardmember Lucia responded that was his point, whether originally t6is dual office
prohibition was created because it would be a conflict. Attorney Jensen advised she did
not know the reason for the origination but guessed that it was di�cult for people to
hold two offices and have their loyalty completely with one or the other. Attorney
Jensen stated her recommendation at this point was to let the Village Council know
about the issue and that they had an issue within their ordinance or charter that they
needed to take care of. Vice Member Genco suggested that once a year the board do a
presentation to the Council on the status of the pension. Attorney Jensen responded
that was required by law. Chair Weinand suggested that be done after the actuarial
return was received. Chair Genco noted the last actuarial return was buried in the
consent agenda and no one really understood what it meant, and the board did not
want to do that. Attorney Jensen clarified that essentially the motion was to notify the
Village Council they had two appointments on this Inoard and they needed to make a
decision and take action, but it was not sufficient for them to just have it in a motion.
Boardmember Lucia seconded the motion, which carried by 3-0 vote.
Chair Weinand confirmed with Attorney Jensen that she would write the letter as discussed.
V. c. Chair Weinand commented the board needed to discuss the results of the actuarial services
and auditing services RFP's. Consensus was to place this item on the August 10 agenda. It
was confirmed that the August 10 meeting would begin at 8:00 a.m.
VII. ADJOURNMENT
Upon motion by Vice Chair Genco, seconded by Boardmember Lucia, and unanimously
carried, the meeting was adjourned at 11:05 a.m.
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Attorneys and Counselors �
Scott G. Hawkins, Esquire
Direct Dial: 561-650-0460
Direct Fax: 561-650-0436
E-Mail: shawkins@jones-foster.com
July 29, 2004
VIA FACSIMILE AND REGULAR MAIL
Michael R. Couzzo, Jr.
Village Manager
Village of Tequesta
Post Office Bax 3273
Tequesta, Florida 33469-0273
RE: Dual Office Holding Code of Ordinance Amendment
Dear Mike:
This letter is in follow-up to our recent telephone conversation regarding the issue of
whether the Village Code should amended to provide that members of the Village
Council may serve on the Public Safety Pension Board.
As you and I discussed, and as I have discussed with Bonni Jensen, an amendment of
the Village Code would be appropriate to address certain concerns about whether
members of the Village Council may serve on the Public Safety Pension Board in view
of the Florida Constitutional prohibition against public officials holding more than one
nffl�a at t�?° ��t?'c� #!!??P.
We have examined this issue along with the materials presented by Bonni Jensen.
In this regard, enclosed is a proposed draft amendment to the Code of Ordinances of
the Village of Tequesta which contemplates that "Members of the Village Council may
serve in an ex officio capacity as members of the Public Safety Pension Board of the
Village of Tequesta."
I assume you will proceed to have this matter placed on the August agenda. Please let
me know if you have any questions in this regard.
On a related note, as discussed, Alexander Lian, Esq. from this office will be attending
the Village Council meeting on August 12, 2004 in my place. Unfortunately, I have to be
u�u>w.jones foster.corn
Mr. Michael R. Couzzo, Jr.
July 29, 2004
Page 2
out of town that evening on another matter. in this regard, I would like to schedule a
meeting between you, me and Alex, perhaps on either August 9 or 10, or early on
August 11, in order to discuss issues that will be addressed at the August 12 meeting.
Please call me if you have any questions.
Sincerely,
JONES, FOS.7,ER, JOHNSTON & STUBBS, P.A.
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By
Scott G. Hawkins, Esq.
cc: Alexander Lian, Esq. (w/enclosure)
N:\SGH\13153-1 \Itr\couzzo-008-sgh-07-29-04. DOC