HomeMy WebLinkAboutDocumentation_Regular_Tab 05A_10/07/2004 MEMORANDUM
TO: Michael R. Couzzo, Village Manager
FROM: Gwen E. Carlisle, Village Clerk
DATE: October 5, 2004
SUBJECT: Postponement of Ordinance 591, Dual Office Holding Issue, to
November Village Council Meeting
Due to the language revisions for Second Reading of Ordinance 591, the
Ordinance in order to meet the requirements will need to be re-advertised.
The Clerk's Office is rescheduling the Second Public Hearing of Ordinance 591
for the November 2004 Village Council Regular Meeting.
��� /
MEMORANDUM
�
DATE: 10/Ol/04
TO: Mayor and Council
FROM: Michael R. Couzzo, Jr., Village Mar�
RE: 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 October 7, 2004 agenda for consideration of second
reading.
ORDINANCE NO. 591
AN ORDINANCE OF THE VILLAGE COUNCIL 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 of the Village of Tequesta is hereby
amended at Chapter 2, Administration, Article II, Village Council, to include a new
Secfiion 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 shall 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 Councilmember
, 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
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HANSON� PERRY S� JENSEN, P.A.
4OO EXECUTIVE CENTER DRIVE, SUITE ZO� — WEST PALM BEACH F�oai�A 33401-2922
_L HANSON* TELEPHONE (561) 686-6550
mjhanson�hpjlaw.com FACSIMILE (561) 686-2802
ANN H. PERRY
aperry�hpjlaw.com
BONNI SPATARA JENSEIV July 13 � ZOO4
bsjensen � hpjlaw.com
'n�so AonnirrEO iN N.Y.
VIA FACSIMILE AND FIRST CLASS MAIL
Michael Couzzo, Viliage Manager
Viliage of Tequesta
Post Office Box 3273
`5� Tequesta Drive, Suite 300
T�e,��.!°sta, Flor�da 3�4�9-�)273
Re: Tequesta Public Safety Officers' Persion �'lara
Board of Trustees - Dual Office Holding
Our File Number 1011.0006 _
Qear Mr. Cuozzo:
Enclosed is copy of a recent Florida Attorney General Opinion regarding dual r,ffic�
hr�ldir�g and the legal requirements to permit a Council person to serve as a mPm�er of �
iVlunicipal Pension Board as a part of his/her ex officio duties. C�.�rrently, Cc�;ar�ciiwoman
GPnro serves on the Tequesta P�blic Safety Officers' Pension Plan Board nf Trustees.
It is the opinion of the Attorney General that to avoid dual office holding, thE `✓iflage
of Tequesta Code ("Code") must imp�ose upon Village of Tequesta Council ("Council")
members the ex officio duty of serving as a member of the Board. This opinion is bassd
on his interpretation of the case of City of Orlando v. State Department of lnsurance, 528
Ss�.2d 468 (Fla. 1 S DCA 1988).
As far� as I am aware, there is not a provision in the Code addressir►g such �n �x
� � �, .,:� �....,. „�I.1.-,�..r�•,�! ;hcrra
officio responsibility fnr Councii memqers. Frevic;u5�y t�d� ��G+��:r ,:�.� �u.���-���� � -
matters by motion at a Council meetir�g.
The Pension Plan itself does not address the issue. The Pension P1an iariguage
�racks the language of Florida Statutes §§175 and 185. The Pension Plan states:
The Public Safety Board shall consist of five (5) Trustees, two (2) of whom,
unless otherwise prohibited by law, shall be legal residents of the Village,
who shail be appointed by the Tequesta Village Council, and one (1) of
whom shall be a full-time Police Officer member of the System and one (1)
H:\7equesta PS 1011\Village\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 (5tn)
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 officia responsibiliti�s no� be contain�� withir� �he per�sion pi��� i�k��lf,
but another section of the Cade or Village Charter should provide for such a designation.
I agree with that recommendation.
The Pension Plan sets out the general criteria for how members are appointed to
the Boards of Trustees. Shoufd the Council wish to designate that a Council Member fill
the Council'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 place that will
be reviewed and administered by the Council and not just the Pension Board of Truste�s.
Chapter 2, Article 2 of the Code is titled "Village Council." An additionaf section
could 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 also be
other Boards that Council members sit on that can be set forth in the same section.
If 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 member on the Board, please keep me informed as to the Village's
resolution of this matter.
Sii��i.vi'C�j+' jjt:?u;�,
.�� � ��.\ �`•- ��-^�"'__�,�„
or�ni S. Jenser�
BSJ/ka
Enclosures
Copy: Board of Trustees
Dan Gallagher
H:\Tequesta PS 1011\Village\Manager\dual o�ce.wpd
Page 1 of 6
Florida Attorney Generai
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 HOLDI2dG-R�T3:�,tEMENT-P�C?LICE O��'ICERS PENSION BOAFtD_--
FIREFIGHTERS PENSION BOARD- M[JNICIPAI,ITIES-OFFICERS- 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:
Y ;sk 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
si.multaneously servinq 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 vrill 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 therei.n,
except ... any officer aiay be a member of a... statutory body having
only advisory powers."
7 constitutional provision prohibits a person from serving in more than
one state, county, or municipal office simultaneously. The prohibition
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
F' �.da has stated that the term "implies a delegation of a portion of the
s. reign power to, and the possession of it by, the person filling the
office ...."[2] Within the scope of the term are the concepts of
tenure, duration and duties in exercising 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 Axticle II, section 5(a), Florida Constitution.[4] For
exaanple, 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 firefiqhters represent the
exercise of the sovereign powers of the stats, and, therefore, denote an
"office" rather than an employment. Similarly, the duties i.mposed 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]
Ir �,ttorney General Opinion 90-45, this office concluded that membership
c ie board of trustees of a city's general pension--which administered
an� operated the general retirement system, including the establishment of
uniform regulations for the administration of the fund, determininq
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 officeholding. 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, �vith each trustee taking an
oath of office before assuming the duties of trustee.[6]
Thus, the board of trustees of the city firefighters' 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 recognized that the imposition
of 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'
� firefighters' pension trust fund would not violate the constitutional
c. . officeholding prohibition.[7] As the Supreme Court of Florida stated
in Bath Club, Inc. v. Dade County,[8]
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Article II, section 5(a) was manifestly fashioned to ensure that multiple
s�, county, and municipal offiaes arill not be held by the same person.
U lying this objective is the concern that a conflict of interest will
arise 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 near 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 servinq on the board of
trustees of municipal police and firefiqhters pension trust funds. The
court concluded that such service did not violate Article II, section 5
(a), Florida Constitution, stating:
"[T]here is nothing inherently inconsistent or incompatible in service by
municipal offiaials on these Boards so as to say that it presumptively
violates the prohibition against dual officeholding in Article II, Section
5(a) . Bath Club, Inc. v. Dade County, 394 So.2d 110 (F1a.1981) ; GryziJc 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
tt._� a board of county commissioners may by ordinance designate the
members of the county commission to serve as the members of a board of
adjust.ment when such additional duties are i.mposed 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
�vhere 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 firefiqhters pension fund, such service by such
officers would not violate the constitutional prohibition aqainst dual
officeholding 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 ovhom
shall be appointed by the city council and two of whoia shall be police
officers, with the fifth meanber chosen by a majority of the previous four
members.[11] Sitailarly, 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, �ith the fifth member chosen by a majora.ty of the previous
four members.[12] The board of trustees of the city qeneral retirement
system consists of:
' One member of the city council to be appointed by the city council.
(2) One resident of the city v�rith 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
p�on plan, to be appointed by the city manager.
( ne nonbargaining unit member to be appointed by the city manager.
(5) One bargaining unit member to be appointed by the citg manager from a
list of three bargaininq unit members submitted by the president of the
bargaininq unit.
(6) One retiree, currently receivinq benefits from the general employees
retirement system, to be selected by the current board of trustee members.
(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 notv�ithstanding any other section of the code,
members of the board of trustees of the qeneral 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' retirement fund and tv�o firefighters to
serve on the board of trustees of the firefighters' 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 firefiqhters pension board and the
mu�+icipal police officers pension board would va.olate 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 prohi.bition 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 � officio
duties of servinq on another board that constitutes an office for purposes
of the constitutional dual officeholding provision.
The city code, however, does impose such ex officio duties on a citg
council member to serve on the general employ'ees pension board. Such
council member, 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, hovrever,
lm pose 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 siiaultaneously serve on either the police officers
p� ion board or the firefighters pension board.
Sincerely,
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C'� _ie Crist
Attorney General
CC/tjw
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[1] See Ops. Att'y Gen. Fla. 96-24 (1996) , 80-97 (1980) and 69-2 (1969) .
[2] See State ex rel. Holloxay 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 Orlando v.
State Department of Insuraace, 528 So. 2d 468 (Fla. lst DCA 1988).
[� 394 So. 2d 110, 112 (Fla. 1981j.
[9] 528 So. 2d 468 (Fla. lst DCA 1988).
[10] A.nd 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)(a), Fla. Stat.,
stating that the membership of the board of trustees for local plans for
police officers only shall consist of five members, t�vo of whom shall be
appointed by the legislative body of the municipality and two of whom
shall be elected by a majority of th� poliae officers vrho are members of
such plan vrith the fifth member selected by a majority of the previous
four members.
[12] See s. 50-311(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, tvro of whom shall be
appointed by the legislative body of the municipality and two of vehom
shall be elected by a majority of the firefighters who are members of such
p?°� with the fifth member selected by a majority of the previous four
n �rs.
[13] Section 50-201(a) of the city code.
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[? - Section 50-201(b) of the city code.
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BOARD OF TRUSTEES '�
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND ;
MEETING MINUTES
J�t �, 2004 �
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 Northstaz to be interviewed.
Boardmember Sabin left the meeting at this point at 10:30 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
board 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. Bogdabn 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 boazd 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 boazd 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 hoaacd 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 progosed 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 far
BOARD OF TRUSTEES
T'EQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND
MEETING MINUTES -
Ju1y �, 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 boazd 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 board 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 board 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 dual person, and what ended up happening was she was
usually the person who had to explain 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 boazd said they
did not want a Council member on the boazd 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 board 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 concerned
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 board
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 boazd 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 board was not to take that step. Her advice
was to say to the Council that there was an issue with theu current appointment and if they
BOARD OF TRUSTEES 3
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND §
MEETING MIlWTES �. �
Juty i, 2004 � �
PAGE 8
want to continue with a Village Council person on this board 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 concemed 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 boazd
could not do that. Attorney 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 preriy 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 lat 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 V illage Council position, her legal concern was overstegping 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 board. Chair Weinand commented Attorney
Jensen could write that out for the Council so it would be clear, 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 board 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 Attorney Jensen had checked on his
position, if he could remain as a member of the board and as Fire Chief, to which the
attorney 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 j
T'EQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND E
MEETING MINUTES �
July 1, 2004
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 duiy 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 board
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:
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Vice Chair Genco made a motion stating that the pension board is advising the Village
Councit that it will have to make a change to its charter or ordinance to address the
appointment of seats on the pension board and that the Council shall have to appoint
two members of each pension board and it will have to amend the charter 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 not want dual office. Attorney Jensen
ezplained it was a state law that prohibited dual office holding. Boardmember Lucia
asked why it was originally estabfished, if it was a conflict of interest. Attorney Jensen
ezplained that there were cases in the 1980's and t6e Attorney General had found it
was not a dual office holding issue as long as it was provided that t6ese 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 basically said it was
not enough that t6e Village Council just appoint people, they must actually 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 municipaliNes and municipalities
6ad to make sure this was included as an eg o�cio duty. Attorney Jensen eaplained
she was recommending at t6is point that the Village Council make a determination
about its dual 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 one of those should be filled by a
Village Couacil member as an eg officio duty, or none of those will be filled by a
Council member, or both of those will 6e filled by a Village Council member.
Essentialty, it would protect the person—Vice Chair Genco at this point—from dual
office holding issues. Members of this board could nat sit on another board because
that wouid be dual office holdiag—the 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
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BOARD OF TRUSTEES
TEQUESTA PUBLIC SAFETY OFFICERS PENSION TRUST FUND ��, ,_ �
MEETING MINUTES ��� � �-- �
July 1, 2004
PAGE 10
ac6ieving the 8% from the act�uarial study, the Village was t6e 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 things she was hoping that person would
be able to keep the ViUage's interest first and foremost, in addiNon to the responsibility
of dual capacity as a pension member to keep first and foremost as a pension member
to protect the peopte who were participating 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
beneficiaries of the plan were no Ionger being taken care of the way they should be.
Boardmember Lucia responded that was his point, w6ether originally t6is dual office
prohibition was created 6ecause it would be a contlict. Attorney Jensen advised she did
not know the reason for the origination but gaessed that it was difficult for people to
hold two offices and have their loyalty completely with one or t6e 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 ordivance 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 w6at it meant, and t6e board did not
want to do that. Attorney Jensen clarified that essentially the motion was to notify the
Village Council they had two appointmeats on this board 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 confumed 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, se�onded by Boardmember Lucia, and unanimously
carried, the meeting was adjourned at 11:05 a.m.
jo�,s
FOSTER F1aglerCenterTower,Suite 1100 MailingAddress
jOHNSTON 505 South Flagler Drive Post Office Box 3475
C�l S 1 V DBS P.A West Palm Beach, Florida 33401 West Palm Beach, Florida 33402-3475
Telephone (561) 659-3000
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 Box 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 Councii may serve on the Public Safety Pension Board in view
of the Florida Constitutional prohibition against public officials holding more than one
n,ffire at tho g��;o tir�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
www.jones foster.com
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 earty 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.,,ER, JOHNSTON & STUBBS, P.A.
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BY �
Scott G. Hawkins, Esq.
cc: Afexander Lian, Esq. (w/enclosure)
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