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IN THE CIRCUIT
COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY CIVIL DIVISION
CITY OF TAMPA RETIRED FIRE AND POLICE ASSOCIATION, a Florida corporation,
Case No. 03-9298
Plaintiff, Division E
vs.
1) The CITY OF TAMPA, a municipal corporation;
2) The BOARD OF TRUSTEES of the City Pension Fund for Firefighters and Police
Officers in the City of Tampa;
3) WEST CENTRAL FLORIDA POLICE BENEVOLENT ASSOCIATION, a labor union;
4) INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 754, a labor union;
5) JENNIFER CAMPBELL, Pension Fund Administrator; :
6) JAMES LOPER, Attorney for Pension Fund Board of Trustees;
:
7) MARK LENKER, Pension Fund Accountant;
8) JOSE FERNANDEZ, Pension Fund Actuary;
and
9) MELLON CONSULTANTS, INC., formerly Buck Consultants, A Mellon Consulting
Company, a New York corporation., Pension Fund Actuary,
Defendants:
_________________________________________/
SECOND AMENDED PETITION for DECLARATORY JUDGMENT and COMPLAINT for “SUNSHINE
LAW” VIOLATION
COMES NOW, the plaintiff CITY OF TAMPA RETIRED FIRE AND
POLICE ASSOCIATION, INC., (hereafter “RETIREES “), and files this their Amended
Verified Petition for Declaratory Judgment and their Complaint for Violation of
the Sunshine Law, against the above-named
Defendants and states as follows:
PARTIES, JURISDICTION and VENUE
1. This is an action for Declaratory Judgment and Violation of Florida’s
“Sunshine Law.”
2. This Court has subject-matter jurisdiction pursuant to Section 12 of
the Pension Contract; Florida Statutes 86.011, et. seq.; Article I, Section 24
of the Florida Constitution; Florida Statute ? 286.011; Florida Statute? 112.66; Rule 1.610 Fla. R.Civ.
Pro.; and because monetary damages exceed $15,000.00, exclusive of attorneys’
fees, costs and interest.
3. This Court has jurisdiction over the City of Tampa Retired Fire and
Police Association, Inc., the Plaintiff in this action (hereafter “Retirees”),
because it is a Florida corporation whose members are retired firefighters and police officers,
whose members are members of the Pension Fund, and whose members are parties to
the Pension Contract with the City of Tampa. (Exhibit A)
4. The address for the Retirees’ Association is P.O. Box 273866, Tampa,
Florida 33688-3866.
5. The Retirees have a membership of 530 people, not including any DROP
participants, and comprise approximately 50% of the overall membership of the
Pension Fund.
6. The Retirees have standing to bring this suit pursuant to F.S. ?
112.66 and because this Court has previously granted them standing by Order
dated November 17, 2003.
7. This Court has jurisdiction over the City of Tampa (hereafter “City
of Tampa”) because it is a municipal governmental entity located within the
boundaries of Hillsborough County, Florida and is a party to the contract for
Pension benefits with the Retirees (hereafter “Pension Contract”).
8. The principal place of business for the City of Tampa is 306 East
Jackson Street, Tampa, Florida 33602.
9. The incumbent Mayor of the City of Tampa is Ms. Pam Iorio.
10. This Court has jurisdiction over the “City Pension Fund for
Firefighters and Police Officers in the City of Tampa” (hereafter the “Pension
Fund“) because it is the fund at issue in this suit and is created and
administered pursuant to the Pension Contract. (Contract sec. 1)
11. The principal place of business for the Pension Fund is 3001 North
Boulevard, Tampa, Florida 33603-5516.
12. This Court has jurisdiction over the Board of Trustees (hereafter,
the “Board”) of the Pension fund and its individual members because the general
administration and responsibility for the proper administration of the Fund is
vested in the Board pursuant to the terms of the Pension Contract and Florida
law. (Contract sec. 5)
13. The principal place of business for the Board is 3001 North
Boulevard, Tampa, Florida 33603.
14. This Court has jurisdiction over Jennifer Campbell (hereafter “Ms.
Campbell”) because at all times material she was the plan administrator of the
Pension Fund.
15. The principal place of business for Ms. Campbell is 3001 North
Boulevard, Tampa, Florida 33603-5516.
16. This Court has jurisdiction over James Loper, Esq. (hereafter “Mr.
Loper “) because he was at all times material the attorney for the Board of
Trustees of the Pension Fund and gave legal advice regarding administration of
the Fund.
17. The principal place of business for Mr. Loper is Magdalene Circle,
15438 North Florida Avenue, Suite 101, Tampa, Florida 33603.
18. This Court has jurisdiction over Mark Lenker (hereafter “Mr. Lenker”)
because he was at all times material the accountant of the Pension Fund and
rendered advice to the Board regarding proper accounting procedures and methods.
19. The principal place of business for Mr. Lenker is 102 West Whiting
Street, Suite 201, Tampa, Florida 33602.
20. This Court has jurisdiction over Jose Fernandez and Mellon
Consultants, Inc., a New York corporation (hereafter “Mr. Fernandez” and “Mellon
Consultants,” respectively), because they performed actuarial services for the
City of Tampa or the Board of Trustees in matters of the Pension Fund.
21. The active firefighters for the City of Tampa are represented by
their labor union, International Association of Firefighters Local 754
(hereafter “IAFF”), during collective bargaining sessions.
22. The principal place of business for IAFF is 14807 North Florida
Avenue, Tampa, Florida 33601-1825
23. The active police officers for the City of Tampa are represented by
their labor union, the West Central Florida Police Benevolent Association
(hereafter “PBA”), during collective bargaining sessions.
24. The principal place of business for PBA is 6605 Nebraska Avenue
North, Tampa, Florida 33604.
25. Venue is proper in Hillsborough County, Florida as most of the
events giving rise to this suit occurred in Hillsborough County, Florida and
that is where the parties are situated and the Fund is administered.
HISTORICAL ALLEGATIONS
How the Fund Works
26. The Pension Fund at issue in this lawsuit is
not a “standard” pension fund and is wholly unique to the City of Tampa.
27. Prior to 1969, the City of Tampa did not have in place an
actuarially sound pension benefit system for firefighters and police officers.
28. In 1969, the City of Tampa lacked the money to properly capitalize
the Pension Fund.
29. Beginning on or about 1969, the City of Tampa proposed a written
Pension Contract to each individual firefighter and police officer and to all
future firefighters and police officers upon acceptance of employment, for the
purpose of providing pension benefits on an actuarially sound basis. This
unique contract for pension benefits was also necessary to gain approval of the
State of Florida Division of Retirement. (Contract intro. recital)
30. Once signed, the Pension Contract became a binding legal contract
and the employee became a member of the Pension Fund.
31. On or about the year 1969, the Pension Contract was ratified by
Special Act of the Legislature.
32. The Pension Fund receives funding from three sources’ contributions
from the City of Tampa; contributions from firefighters and police officers; and
any monies received from the State of Florida or through special taxation.
(Contract sec. 2)
33. Upon its creation in 1969, the City of Tampa separated the Fund
into two main portions’ the Base account and the Post Retirement Adjustment
Account (hereafter the “Base Account” and the “PRAA Account” respectively).
(Contract sec. 23)
34. Beginning in 1969, the then-active members of the Pension Fund
contributed on an average approximately 12-18% of their gross salaries into the
Pension Fund for the purpose of building-up the PRAA account and ensuring the
future stability of the Fund.
35. The PRAA account was designed so it could develop unhindered during
the 1970's to pay cost-of-living allotments in the 1980. By contract, these
funds were walled off, only to be used for current and future cost-of-living
adjustments.
36. As of April 2004, the Base account comprises 34 % of the overall
Fund, and the PRAA account comprises the remaining 66 %.
37. The Base account pays for the base pension benefits to all retired
members and operating Fund expenses.
38. The PRAA account is walled-off and pays Cost of Living Adjustments
(COLA) to the Retirees and other retired members of the fund. The PRAA account
is composed of the allocated funds and the unallocated funds.
39. The Pension Contract dedicates the PRAA account for the exclusive
benefit of beneficiaries of the Fund, including the Retirees.
40. Pursuant to the Contract, the first five percent (5%) earned on any
fund investment is
earmarked exclusively for the Base account. id.
41. The Base account must grow by 5% compounded annually from its
inception in 1969 by contract.
42. Any investment losses must occur only to the Base Account and must
be made up by contributions to the Base Account from active police, firefighters
and/or the City of Tampa in future years.
43. Pursuant to the Contract, any amount of money earned over the 5% is
earmarked for the PRAA account. id.
44. The Coniglio decision and the common application of Florida laws
governing contractual
relationships do not allow the Pension Contract to be altered in any manner
which would negatively adjust or devalue the PRAA account.
45. The Federal and Florida Constitutions prohibit any legislative body
from passing a law impairing the obligation of contracts. (Art. I, Sec. 10 Fla.
Const. and Art I, Sec. 10 U.S. Const.)
46. Prior to 2002 during those years where the Pension Fund suffered
fiscal losses, no loss was ever allocated to the PRAA account.
47. Prior to the acts described herein, no change, known at this time,
was ever made to the Pension Contract, which caused a devaluation of the PRAA
account or any harm to the Retirees.
48. The rights of the Retirees as members of the Pension Fund are
vested at the time of retirement and cannot be changed without the Retirees’
consent.
49. Members of the Pension Fund, upon their retirement, receive monthly
pension installments. (Contract sec. 7)
50. Such benefits are payable to the retired members or their
beneficiaries and guaranteed to them for the remainder of their life. (Contract
sec. 19)
51. The Contract remains if full force without change, modification or
amendment until all purposes have been fulfilled and fully performed. (Contract
‘Whereas” para. 4)
52. As a result, the Retirees have a continuing nexus to this
employment benefit.
53. During the years 1974, 1989, 1992, 1994, 1998, 2001 and 2002,
supplements to the Contract were executed by the City of Tampa and then-actively
employed members of the Pension Fund.
54. The 1998 amendment created the “13th Check” program which pays all
retired Fund beneficiaries a percentage of income from the PRAA account earnings
in excess of predetermined percent.
55. The 13th check program was created by the City of Tampa and the PBA
and IAFF to enhance the COLA benefits which were inadequate to cover the actual
cost of living increases paid to the Retirees.
Requirements for Amending the Pension Contract
56. On September 27, 1979, in the case of A.S.
Coniglio, Jr., et al. v. City of Tampa, et al., Case No. 77-7389, the court in
its opinion commented with respect to the terms and conditions of the Pension
Contract, specifically how changes were to be implemented by an agreement
between the parties, etc. Additionally, on October 7, 1988, James Loper Esq.,
the attorney for the Board of Trustees, authored an opinion letter entitled “The
Requirements in Amending
the Fire and Police Pension Contract.” (Exhibit C)
57. Mr. Loper concluded that “each individual member has a pension
contract with the City of Tampa” and that “the pension contract cannot be
unilaterally amended” except under certain limited circumstances. (Loper opinion
para. 3)
58. Mr. Loper stated that “a special act could be passed enabling or
authoring a change to the pension contract, but that such change is only
effective upon agreement by the parties to the pension contract.” (id.)
59. The limited circumstances where an agreement between the parties is
not required occur when the change does not operate as a substantial impairment
of a contractual relationship, or when there is a significant and legitimate
public purpose underlying the change, such as remedying a broad and general
social or economic problem. (id.)
60. None of the limited circumstances permitting a unilateral
modification of the Pension Contract were present during the years 1999-2004.
61. As an added requirement to changing the contract, the governing
body of the Pension Fund must have issued a statement of actuarial impact of the
proposed change upon the fund prior to the last public hearing thereon and prior
to the adoption of the change. (Loper opinion para. 4; F.S. 112.63(3); and Art
X, Sec 14 Fla. Const.)
62. The City of Tampa did not have a complete actuarial impact
statement analyzing the cost of the proposed changes to the Pension Contract as
described herein at the time the changes were proposed in the labor negotiations
with the IAFF and PBA, nor prior to
the last public hearing on this matter.
63. The last complete actuarial report was prepared by Mellon
Consultants, Inc. for the year 2002.
The Board of
Trustees
64. The Pension Contract created a Board of
Trustees.
65. The make-up of the Board is as follows:
A. Three Board members are appointed exclusively by the Mayor;
B. Three Board members are elected from the fire fighter ranks, and
C. Three Board members are elected from the PBA labor union.
(Contract sec.5)
66. The Retirees have no representation on the Board of the Pension
Fund and must rely on the honest administration of the Fund by Board members.
67. The Board has limited authority to establish rules and regulations
for the administration of the Pension Fund and for the transaction of its
business. (Contract sec. 5(3)(H))
68. Each Board trustee takes an oath of office to diligently and
honestly administer the affairs of the Board and to not knowingly violate or
willingly permit a violation of any provisions of the law applicable to the
pension. (Contract sec. 5(3)(F))
69. On or about March 2004, the Board of Trustees was comprised of the
following individual members’ Marc J. Hamlin, Trustee; Daniel Lombard, Trustee;
Michael Howard, Trustee; Tom Singletary, Trustee; Eric D. Hull, Trustee; Tracy
Walker, Trustee; Ron Ibarra,
Trustee; Cynthia D. Miller, Trustee; John Moorss, Trustee, Lawrence Parker,
Trustee.
70. Ms. Jennifer Campbell administers the Pension Fund and has a
fiduciary duty to all of its members, including the Retirees, not to mismanage
the Fund.
71. Members of the Board of Trustees are the exclusive governing body
of the Pension Fund and, along with the administrator Ms. Campbell and the
attorney Mr. Loper, Esq., make and implement all decisions concerning the
Pension Fund.
The Labor Relations Forum
72. The active firefighters for the City of
Tampa are represented by their labor union, International Association of
Firefighters Local 754, (hereafter “IAFF”) during collective bargaining
sessions.
73. The International Association of Firefighters, Local 754, is
represented by Mr. Tracy Walker at these labor negotiations.
74. Mr. Tracy Walker sits on the Board of Trustees for the Pension Fund
and is also the labor union representative for the IAFF.
75. The active police officers for the City of Tampa are represented by
their labor union, the West Central Florida Police Benevolent Association
(hereafter “PBA”), during collective bargaining sessions.
76. The PBA is represented by Mr. Kevin Durkin at these labor
negotiations.
77. The City of Tampa was at all times material, represented at labor
meetings between the City of Tampa and the police and firefighters unions by Ms.
Sarah Lang; Sam Hamilton, Esq.; and Ron Ibarra. Ron Ibarra also serves as a
trustee appointed by the mayor of the Pension Fund.
78. The Retirees have no representation at any collective bargaining
sessions and are not members of either labor union. Additionally, minutes of
these labor negotiation meetings have not been kept or recorded in the past, and
no attempts were made to do so until Plaintiff’s original Petition was filed
alleging Sunshine Law violations on October 6, 2003.
79. There is no legal authority, which says that the Retirees could not
participate in the labor
negotiations in a limited capacity dealing with those issues relevant to the
Pension Fund.
80. The Retirees have been denied limited participation during
bargaining sessions between the City of Tampa and the PBA or IAFF on matters
relating to the Pension Fund.
81. The City of Tampa and the PBA and IAFF have negotiated changes to
the Pension in a labor relations forum without the input of the Retirees which
substantially change the terms of the Pension Contract.
82. The retroactive increased retirement multiplier discussed below was
proposed during the 2003 labor negotiations and operates as a substantial
devaluation of the PRAA account to the detriment of the Retirees.
83. The retroactive increased retirement multiplier jeopardizes the
actuarial soundness of the PRAA account, which was built-up by the excessive
contributions of the Retirees and which guarantees them cost of living benefits
and ensures the overall health of the Fund. The Coniglio Decision
84. On September 27, 1979 the Thirteenth Judicial Circuit in
Hillsborough County, Florida, J. Hanlon, entered a Final Decree in the case of
A.S. Coniglio, Jr., et. al. v. City of Tampa, et.al., Case No.: 77-7389.
(Exhibit B)
85. The attorney for the plaintiff in 1979 was James Loper, Esq.,
presently the Board of Trustees attorney.
86. Pursuant to this decree, he ruled that the Pension Contract may not
be changed, modified, or amended by the actions of only one party to the
contract. (Final Decree para. 5)
87. The court in that case also ruled that the Board of Trustees may be
sued. (Final Decree para. 6)
88. With respect to the PRAA account, the court ruled that the original
intent of the parties was that there could not and would not be any negative
adjustments to the PRAA account. (Final Decree para.9)
The $3.9 Million
Withdrawal from the PRAA Account
89. On or about the year 1999, the Board of
Trustees withdrew $3.9 million from the PRAA account as evidenced by the actuary
report of Mr. Larry Wilson who was the Pension Fund actuary during this time.
90. This money was deposited into the Base account of the Pension Fund.
91. Present Board members either participated in this withdrawal or
have ratified it.
92. This withdrawal was not a ministerial action of the Board, but
rather a substantial devaluation of the PRAA account.
93. This withdrawal was done without the knowledge or consent of the
Retirees and devalued the PRAA account.
94. No resolution was circulated or passed by the Board of Trustees
contemporaneous with this justifying the withdrawal.
The $209 Million Devaluation of the PRAA Account
95. On or about April 2002, Ms. Campbell as Fund
administrator presented to Ms. Miller, Trustee, a memorandum proposing that
investment losses incurred in the Base account be reallocated to the PRAA
account.
96. On April 23, 2002, Mr. Lenker, accountant, Mr. Loper, attorney, Mr.
Fernandez, actuary, and Ms. Campbell, administrator, signed a one-page
memorandum adopting a five-year smoothing method for the Pension Fund. (Exhibit
D)
97. This method directly resulted in the PRAA account’s devaluation of
$157,341,032 in 2001 and a devaluation of $52,295,973 in 2002, for a total loss
spread to the PRAA account of $209,637,005.
98. Present Board members either participated in this reallocation or
have ratified it.
99. Professional advisors to the Pension Plan Board of Trustees, Plan
Administrator Jennifer Campbell; Mr. James Loper, Esq., attorney to the Board;
Mark Lenker, accountant; and Mr. Fernandez of Mellon Consulting, Inc., knew or
should have known that their actions were contrary to the Coniglio decision, Mr.
Loper’s 1988 memorandum, and Florida contract law. As a
result of their actions Cynthia Miller, trustee appointed by the mayor of the
City of Tampa, adopted the proposal as set forth in the memorandum which allowed
for the devaluation of the PRAA account without a proper supplement to the
contract agreed upon between the parties, and as stated in violation of Coniglio.
This memorandum ultimately served to the benefit of the respective labor unions
and the City of Tampa in that it obviated the City’s, active firefighters’ and
police officers’ responsibility not to devalue the PRAA account and at the same
time relieved their financial obligations to the Base Account contrary to the
contract.
100. This reallocation was not a ministerial action of the Board, but
rather a substantial devaluation of the PRAA account.
101. These changes were approved without any public discussion or input
from the Retirees.
102. On January 9, 2004, Board of Trustees, through their attorney Mr.
Loper, Esq., admitted to never seeking a legal opinion addressing:
A. Whether the loss-spreading would breach the contract,
B. Whether the loss-spreading was adopted by following correct
procedure,
C. Whether it would be necessary and prudent to file a declaratory
action to properly ascertain whether or not the terms and conditions of the
contract were acceptable as proposed in the April 23, 2002 memorandum, or
D. Whether the loss-spreading violated the Coniglio decision.
103. At the time of approving the loss-spreading, Mr. Loper, Esq. and
Ms. Campbell knew or should have known about the Coniglio decision and the exact
terms of the Pension Contract.
104. No resolution was circulated or passed by the Board of Trustees
contemporaneous with this justifying or explaining the need for this
loss-spreading.
105. The Retirees never consented to any withdrawal or devaluation from
the PRAA account.
106. Since active firefighters and police officers are responsible for
maintaining the first 5% of income into the Base Account, the $209 million
loss-spreading into the PRAA account lowers the contributions of active fire and
police to the Pension Fund because it shifts a huge liability away from the Base
account into the PRAA account and thereby lowers the amount of money which needs
to be made up to the Base account.
107. The above loss-spreading jeopardizes the actuarial soundness of
the PRAA account, which was built-up by the excessive contributions of the
Retirees and which guarantees them pension benefits, COLA, and ensures the
overall health of the Fund.
The Increased Retroactive Multiplier
108. On or about November 2003, the City of Tampa
proposed Local Bill 003, a/k/a Senate Bill 2382 and House Bill 961. (Exhibit E,
hereafter “Bill 003")
109. This Bill 003 was prepared by Sam Hamilton, Esq. of behalf of the
City of Tampa as a result of labor negotiations with the fire and police unions
and submitted for presentation to the Hillsborough County Legislative Delegation
on November 21, 2003.
110. Bill 003 was sponsored by Senator Victor Crist and Representative
Sandra Murman at the December 17, 2003 Hillsborough County Legislative
Delegation meeting held in Tampa, Florida. Senator Crist admitted receiving the
proposed legislation Bill 003 just prior to the meeting of the delegation and as
he had not had ample opportunity to review the proposed legislation was acting
in good faith and on the City’s recommendation this bill was not at issue and
did purport to be a valid agreement between the parties to create a supplement
to the Pension Contract. who were presented with this legislation just three
days short of the filing deadline.
111. In relevant part, Bill 003 proposed changes to the Pension Fund as
follows:
A. Increases the retirement multiplier from 2.5% to 3.15%.
B. Provides that any Pension Fund member who was actively employed
as a firefighter or police officer in the City of Tampa on or after October 1,
2003 shall receive benefits from the Pension Fund at the increased rate from
their date of employment forward until retirement. The language within Local
Bill 003, particularly as it is reflected on page 1 that this legislation be
prospective, and on page 4 indicates the increased multiplier would be
retroactive to each individual active police officer and firefighter back to
their date of employment if employed on or after October 1, 2003, is misleading
and at the very least ambiguous.
112. The retroactive multiplier does not apply to any member of the
Retirees and discriminates against similarly situated Pension beneficiaries.
113. The retroactivity of this multiplier dating back to each active
employee s date of employment jeopardizes the soundness of the PRAA account and
forces it to bear a much greater financial burden than was originally intended.
114. Contributions by active police and firefighters to the Fund did
not contemplate
increasing the pension multiplier to 3.15% and making it retroactive to the date
of employment for each Fund member.
115. Bill 003 was negotiated only by the labor unions and the City of
Tampa, and no Retiree was permitted to participate in the negotiations.
116. Bill 003 reflects and agreement between the respective police and
fire unions and the City of Tampa as a result of labor negotiations. Bill 003
is not the product of an agreement between the parties to the Pension Contract
initiated by the Board of Trustees of the Pension Fund.
117. Mr. Tracy Walker, who serves as both a Trustee to the Pension Fund
and as the IAFF labor union representative, and Ron Ibarra of the City of Tampa,
and Cynthia Miller of the City of Tampa, as well as the City of Tampa, realized
a substantial economic gain from this legislation to the detriment of the
Retirees and other Pension Fund members. In essence, the City of Tampa and the
active firefighters and police officers, through their unions, have schemed to
manipulate the terms and conditions of the Pension Contract by surreptitiously
agreeing to supplements during labor relations negotiations as opposed to supplements proposed and agreed upon between the parties as the result of the
acts of the Board of Trustees of the Pension Fund.
118. On or about December 17th, 2003, the Hillsborough County
Legislative Delegation met in Tampa to discuss Bill 003.
119. Concerns about the retroactive multiplier were raised at the
delegation by the Retirees.
120. Senator Crist, upon returning to Tallahassee, convened a special
session of the entire Hillsborough County Legislative Delegation to take sworn
testimony from the City of Tampa, the Retirees and the PBA and IAFF, Local 754
unions regarding the $209 million loss-spreading and the retroactivity of the
3.15% increased multiplier.
121. At this session, Mayor Pam Iorio was present and took full
personal responsibility for Bill 003.
122. Art X, sec. 14 of the Fla. Const. Prohibits the City of Tampa from
increasing any Pension benefits to Fund members unless it makes provisions for
the funding on a sound actuarial basis contemporaneous or prior to the benefit
increase?
123. Any unfunded liability arising from significant Pension Fund
amendments must shown to be amortized within 30 years. (F.S. ? 112.64)
124. When it proposed Bill 003, the City of Tampa had not received any
complete actuarial report addressing the cost of the retroactive multiplier, nor
showing how the unfunded liability would be amortized.
125. When it proposed Bill 003, the City of Tampa initially indicated
it would have the necessary actuary’s report by March, 2004.
126. As of April 2004, the City of Tampa has not yet received the
required actuary report.
127. Bill 003 has not satisfied the Constitutional and/or statutory
requirements for its enactment and, as such, is unconstitutional.
The 13th Check
128. In 1998, the “13th Check” program was
created, which pays retired members of the Pension Fund, including the Retirees
and DROP members, a small dividend in years where the PRAA account earns above a
predetermined percentage.
129. This program was created by supplemental amendment to the Pension
Contract, unlike the $209 million loss spreading and the retroactivity of the
increased multiplier.
130. Between 1998 through 2001, the City of Tampa failed to contribute a
total of $6.8 million to the 13th check program.
131. The City of Tampa was allowed to defer the funding of the program
for the years 1998, 1999, 2000, and 2001 by the PBA and IAFF.
132. This deferment allowed the IAFF to get a salary increase between
18-19.3% for the years 1998 - 2001. In 2001, this deferment allowed the IAFF to
get salary increases of 19-19.3%.
133. In 2001, the City of Tampa and the PBA and IAFF shifted the funding
of the 13th Check program to the 11-13% of the investment returns on the base
liabilities of the Pension Fund.
134. These acts diminish the amount of money flowing into the PRAA and
reduce the likelihood that the Retirees will receive their 13th check.
135. Since the changes described above were implemented, the Retirees
received a lesser 13th check in 2002, did not receive a 13th check at all in the
year 2003. and will likely not receive one for 2004.
COUNT I
Declaratory Judgment against the City of Tampa; the Board
of Trustees; the PBA; the IAFF, Local 754; James Loper; Jennifer Campbell; Jose
Fernandez; Mark Lenker; and Mellon Consultants, Inc.
136. The Retirees reallege and reaffirm the allegations in paragraph
numbers 1 through135.
137. This is a count for Declaratory Judgment pursuant to F.S Chapter
86, et. seq. and 112.66 against the City of Tampa; the Board of Trustees; the
PBA; the IAFF, Local 754; James Loper; Jennifer Campbell; Jose Fernandez; Mark
Lenker; and Mellon, Inc. (collectively the “Defendants”).
138. All the above-named Defendants are interested parties to this
action.
139. This Court has jurisdiction pursuant to F.S ? 86.011 and because
the amount of damages exceeds $15,000.00, exclusive of costs, interest and
attorneys fees.
140. The Retirees have standing to bring this count pursuant to F.S. ?
86 and 112.66.
141. The Attorney General has been served a copy of this complaint
pursuant to F.S. ? 86.091.
142. A present and ascertainable controversy has arisen between the
Retirees and the Defendants as a result of which the Retirees are in doubt as to
their rights concerning a defendant’s ability to unilaterally change the terms
of the Pension Contract.
143. This action deals with a present and ascertainable controversy and
requires the Court make a finding of fact and conclusion of law over the
following:
A. Whether April 2002 adoption of the $209 million loss-spreading
accounting method is a devaluation of the PRAA account?
B. Whether the retroactivity of the increased multiplier back to
each active’s date of employment is a substantial change to the Pension Contract
without agreement between the parties nor in the proper forum where agreements
to supplements are created?
C. Whether the City of Tampa or the Board of Trustees may make a
substantial change to the terms of the Pension Contract without the prior
knowledge and consent of the Retirees?
D. Whether the City of Tampa must negotiate substantial changes to
the Pension Contract with the PBA and IAFF exclusively in a labor relation’s
forum without any input from the Retirees?
E. Whether supplements to the Pension Fund contract must occur as
a result of an agreement between the parties pursuant to the terms and
conditions of the contract and authority granted the Board of Trustees of the
Pension Fund?
F. Whether the City of Tampa may enter into contracts with police and
fire unions during labor negotiations, which contain terms, and conditions,
which substantially change the Pension Contract?
G. Whether the Retirees are entitled to fair and equal
representation in matters dealing with the Pension Fund?
H. Whether Pension Fund matters must be discussed exclusively in
front of the Board of Trustees?
I. Whether the PBA and IAFF unions would be prejudiced by
addressing Pension Fund matters in front of the Board of Trustees with input
from the Retirees, instead in the labor relations forum?
J. Whether Florida law requires that Pension Fund matters be
discussed only in a labor relation’s forum, which excludes all members of the
Retirees, as opposed to the proper forum, which would be at the Pension Fund
before the Pension Fund Board of Trustees pursuant to the contract?
K. Whether future substantial changes to the Pension Contract must
be made by amendment to the Pension Contract?
L. Whether the Board of Trustees owes the Retirees a fiduciary duty
to act in their best interest and to not engage in conduct which negatively
effects the Retirees’ vested right in the Pension Fund, i.e., serving on the
Board of Trustees of the Pension Fund concurrent with a position, office or as a
negotiator with either the police or fire union, which in and of itself creates
an obvious conflict of interest and fiduciary duty?
M. Whether the Board of Trustees must be given an opportunity to
review those parts of any collective bargaining agreements between the City and
the PBA or IAFF to determine if it complies with the terms of the Pension
Contract, the Coniglio suit, Florida Statutes and/or their fiduciary duties to
Pension Fund members?
N. Whether the Board of Trustees breached this fiduciary duty to
the Retirees by spreading Fund losses to the PRAA account?
O. Whether the City of Tampa breached the Pension Contract to the
Retirees by proposing the provision of Local Bill 003, which makes the increased
3.15% multiplier retroactive to the employee’s date of employment?
P. Whether the City of Tampa has a fiduciary obligation to the
Retirees when negotiating with the PBA and IAFF unions over Pension Fund
matters?
Q. Whether the City of Tampa breached its fiduciary duty to the
Retirees when it accepted a collective bargaining agreement and proposed Local
Bill 003, which retroactively applied the increased multiplier for active police
and fire members?
R. Whether Bill 003 has met all Constitutional and/or statutory
requirements for its passage?
S. Directing that three Retirees be made members of the Board of
Trustees to the Pension Fund.
T. Whether James Loper, Esq. must recuse himself from representing
the Board of Trustees based the presently adverse position between himself and
the Retirees, to whom he owes a fiduciary duty, over the matters raised here?
U. Whether James Loper, Esq. must recuse himself from
representing the Board of Trustees based on his involvement in the Coniglio suit
wherein he sued the City of Tampa over Pension Fund matters on behalf of a Fund
member?
V. Whether Bill 003 is unconstitutional due to its discriminatory
impact on the Pension Fund beneficiaries?
144. The propriety of the Defendants’ conduct and the rights of the
Retirees are dependant upon this Court’s interpretation of the allegations and
applicable law.
145. There is a bona fide, actual, present practical need for this
declaration.
146. The actual, present, adverse and antagonistic interests of the
Retirees and the Defendants are presently before the Court and are in need of
resolution.
147. All known antagonistic and adverse interests are before the Court.
148. The relief requested in this count is not merely the rendering of
legal advice by the Court, but is necessary to settle the propriety of the
Defendants’ actions and afford the Retirees relief from the insecurity and
uncertainty of these actions.
149. The Retirees have a substantial likelihood of success on the
merits based on the facts and laws plead herein.
150. Irreparable harm will occur to the Retirees unless the Court
enjoins the Defendants, temporarily and permanently, from taking any action
detrimental to the Pension Fund.
151. The Retirees do not have an adequate remedy at law.
152. The issuance of an injunction will not disserve any public
purpose.
153. There is a compelling public interest in ensuring the financial
soundness of the Fund and preventing further harm from occurring.
154. Unless the Court grants the relief sought in this count, the
Retirees will never clarify their rights under the Pension Contract and will
suffer irreparable harm by the Defendants’ continued unilateral modification of
the Pension Contract.
WHEREFORE, based on the foregoing, the Retirees
respectfully request this Court:
A. Hold an evidentiary hearing and allow
discovery into the matters raised in this lawsuit.
B. Enter judgment declaring the rights of the Retirees in this matter
under the Pension Contract.
C. Enter a judgment declaring that the rights and responsibilities of
the parties to the Pension Contract as annunciated in Coniglio are still in full
force and effect.
D. Declare Bill 003 unconstitutional for the City of Tampa’s failure to
comply with all Constitutional and statutory requirements.
E. Declare Bill 003 unconstitutional due to its discriminatory impact on
Pension Fund Beneficiaries.
F. Prevent Bill 003 from taking effect until the Court resolves these
issues and until the actuary reports assuring the soundness of the proposed
changes are completed.
G. Enjoin the Defendants temporarily and permanently from any actions
substantially altering the Pension Contract unless previously agreed to by all
parties thereto, including but not limited to preventing any further devaluation
of the PRAA account.
H. Declaring that the PRAA account shall not bear any investment losses
whatsoever unless formally agreed to by the parties to the Pension Contract.
I. Award compensatory damages in an amount to be determined.
J. Order an audit of the entire Pension Fund from 1998 through the
present.
K. Declare the City of Tampa to be in breach of the Pension Contract.
L. Declare the Board of Trustees to be in breach of their fiduciary
duties to the Retirees due to the Board’s repeated mis-administration of the
Pension Fund.
M. Order the City of Tampa to refund the PRAA for all devaluations,
including but not limited to, refunding the $3.9 million withdraw and the $209
million liability spread to the PRAA account.
N. Declare the proper procedure by which the Board of Trustees of the
Pension Fund change the terms and conditions of the Contract by supplement,
amendment or any other manner.
O. Declare that pension issues discussed at labor relation sessions
cannot supplant the Pension Fund and the Board of Trustees’ responsibility for
following the proper procedure to change the terms and conditions of the
contract.
P. Declare that the Board of Trustees take whatever remedial action
necessary to correct any harm done to the Pension Fund by their conduct.
Q. Declare that the Board of Trustees develops a policy or procedure to
avoid future conflicts or potential conflicts of interest as a result of serving
as a Board member to the Pension Fund or as fiduciaries.
R. Grant any and all further relief it deems necessary and proper.
S. Grant the Retirees a trial by jury on all issues so trial able.
COUNT II
Violation of Florida’s Sunshine Law against the City
of Tampa
155. The Retirees reallege and reaffirm the allegations in paragraph
numbers 1 through135.
156. This is a complaint for violation of the “Sunshine Law “ against
the City of Tampa.
157. This Court has jurisdiction pursuant to F.S. ? 286.011(2) and Art.
X. Sec. 14 Fla. Const. to enforce the provisions of the Sunshine Law, including
the power to issue injunctions enforcing this section.
158. Pursuant to F.S. 286.011(1), all meetings of any board or
commission of any municipal corporation, unless exempted, at which official acts
are taken are declared to be public meetings.
159. Labor negotiations are public meetings within the meaning of this
statute.
160. The minutes of any public meeting must be promptly recorded by the
municipal corporation and made available to the public for inspection. (F.S. ?
286.011(2))
161. Official acts taken by the municipal corporation in violation of
this statute are subject
to invalidation by the Court and the plaintiff is subject to injunctive relief.
(F.S. ? 286.011(4))
162. Upon a finding that the municipal corporation violated the
statute, the Court must award the plaintiff its reasonable attorneys fees and
costs. (id.)
163. On or about August 5, August 19, September 10, September 17,
October 30, October 31, November 6, and November 7, 2003, the City of Tampa held
public labor meetings with the PBA and IAFF to discuss the Pension Fund,
including those matters raised in Count I of this suit.
164. The City of Tampa s representatives at these labor meetings were
Ms. Sarah Lang; Sam Hamilton, Esq.; and Ron Ibarra, accountant.
165. The West Central Florida Police Benevolent Assoc. is represented
by Mr. Kevin Durkin at these labor negotiations.
166. The International Association of Firefighters, Local 754, is
represented by Mr. Tracy Walker at these labor negotiations.
167. The Retirees were not allowed by the City or either union to
participate in pertinent discussions during these negotiations.
168. The public notice of these meetings was not posted in a
conspicuous place, which could readily be seen by the Retirees.
169. As a result of their begin denied access to these meetings, the
Retirees must rely on minutes which should be kept pursuant to statute to
determine if any changes to the Pension Fund were proposed which would effect
their interests as beneficiaries.
170. The City of Tampa had a statutory duty to promptly record the
official minutes from these meetings.
171. The City of Tampa breached its statutory duty by failing to
promptly record official minutes of these meetings.
172. The Retirees have made a public records demand for the minutes
from these meetings pursuant to F.S. Chapter 119.
173. The request of the Retirees has not been honored.
174. Mr. Sam Hamilton, Esq., an attorney for the City of Tampa, told
the Retirees that the City does not promptly record the minutes, and that the
minutes would have to be constructed from notes of Ms. Sarah Lang.
175. Compliance with the Florida Sunshine Law was only attempted by the
City of Tampa after the Retirees filed suit alleging Sunshine Law violations on
October 6, 2003.
176. The Retirees have a substantial likelihood of success on the
merits based on the facts and legal authority set forth herein.
177. Irreparable harm will occur to the Retirees unless the Court
compels the City of Tampa to comply with all aspects of the “Sunshine Law”,
including the prompt recording of minutes from labor negotiations between it and
the PBA or IAFF.
178. The Retirees have no other adequate remedy at law separate from
the counts set forth herein.
179. The issuance of a temporary and permanent injunction will further
a compelling public interest in memorializing the labor negotiations in matters
of the Pension Fund.
180. The Retirees are obligated to pay the undersigned counsel reasonable
and necessary
attorneys’ fees and costs in bringing this lawsuit.
WHEREFORE, based on the foregoing, the Retirees
respectfully request this Court:
A. Vacate those parts of the Collective Bargaining Agreement reached
between the City of Tampa and the West Central Florida Police Benevolent
Association or the International Association of Firefighters, Local 754 during
the 2003 labor negotiations dealing with the Pension Fund, including but not
limited to the retroactive increased multiplier.
B. Award the Retirees their reasonable attorneys’ fees and costs
pursuant to F.S. 286.011(4)
C. Impose a temporary and permanent mandatory injunction on the City of
Tampa requiring them to promptly record accurate minutes from their labor
negotiations and from all other meetings where Pension Fund matters were
addressed and to make those minutes readily available to the Retirees upon
request.
D. Grant any and all further relief this Court deems necessary and
proper.
E. Grant the Plaintiff a trial by jury on all issues so trial able.
Respectfully submitted,
______________________________________
CARRINGTON & CARRINGTON, P.A.
FRED CARRINGTON, Esq.
Florida Bar Number: 0857270
TERRON M. CARRINGTON, ESQ.
Florida Bar No. 0146285
619 Turner Street
Clearwater, Florida 33756
Telephone: (727) 443-0405
Facsimile: (727) 441-3004
Counsel for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S.
Mail to:
Thomas Gonzalez, Esq.
Thompson, Sizemore & Gonzalez, P.A.
501 East Kennedy Boulevard, Suite 1400
Tampa, FL 33602-5246
(Attorney for City of Tampa)
James Loper, Esq.
Magdalene Circle
15438 North Florida Avenue, Suite 101
Tampa, FL 33603
(Attorney for Board of Trustees of the City Pension Fund for Firefighters
and Police, also on behalf of himself as a party)
Bill L. Bryant, Jr., Esq.
Akerman Senterfitt
106 East College Avenue, Suite 1200
Tallahassee, FL 32301
(Attorney for Jose Fernandez and Mellon Consultants, Inc.)
Attorney General, State of Florida
The Capitol
Tallahassee, FL 32399-1050
I HEREBY CERTIFY that a copy of the foregoing has been furnished via process
service to:
West Central Florida Police Benevolent Association
Kevin Durkin, President
6605 Nebraska Avenue North
Tampa, FL 33604
International Association of Firefighters, Local 754
Tracy Walker, President
14807 North Florida Avenue
Tampa, FL 33601-1825
Jennifer Campbell
Plan Administrator
City of Tampa Fire and Police Pension Fund Board
3001 North Boulevard
Tampa, FL 33603-5516
Mark Lenker
102 West Whiting Street, Suite 201
Tampa, FL 33602
this ___ day of May, 2004.
______________________________________
Fred Carrington, Esq.
Terron M. Carrington, Esq.
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