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Agenda 04-15-13 BOYNTON BEACH POLICE OFFICERS’ PENSION FUND SPECIAL BOARD MEETING Monday, April 15, 2013 @ 1:00 PM Renaissance Executive Suites - Conference Room #1 1500 Gateway Blvd., Suite #220 Boynton Beach, FL 33426 AGENDA I.CALL TO ORDER – Secretary – Toby Athol – Acting Chair II.AGENDA APPROVAL III.APPROVAL OF MINUTES – N/A IV.FINANCIAL REPORTS: N/A V.CORRESPONDENCE: N/A OLD BUSINESS: VI. 1) Pending Disability Application – Robert Epstein – a) Special Board Meeting Minutes of 12-12-2012 for review. b) Five case related disability applications for review & discussion Case #1, #2, #3, #4 & #5 VII. NEW BUSINESS: th 1) Resignation Gary Chapman – discussion on appointment of 5 member of the Board. VIII. PENSION ADMINISTRATOR’S REPORT: N/A IX. COMMENTS: X. ADJOURNMENT: Next Regular Meeting Date – Tuesday, May 14, 2013 @ 9:30 a.m. – 1500 Gateway Blvd. Suite 220, Boynton Beach, FL 33426 If you cannot attend, please call Barbara @ 561-739-7972 NOTICE PO’PB IF A PERSON DECIDES TO APPEAL ANY DECISION MADE BY THE OLICE FFICERS ENSION OARD WITH RESPECT TO ANY MATTER ,/,,/ CONSIDERED AT THIS MEETING HESHE WILL NEED A RECORD OF THE PROCEEDINGS AND FOR SUCH PURPOSE HESHE MAY NEED TO , ENSURE THAT A VERBATIM RECORD OF THE PROCEEDING IS MADE WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON .(..286.0105) WHICH THE APPEAL IS TO BE BASED FS THE CITY SHALL FURNISH APPROPRIATE AUXILIARY AIDS AND SERVICES WHERE NECESSARY TO AFFORD AN INDIVIDUAL WITH A ,, DISABILITY AN EQUAL OPPORTUNITY TO PARTICIPATE IN AND ENJOY THE BENEFITS OF A SERVICE PROGRAM OR ACTIVITY CONDUCTED .PW,(561)742-6013- BY THE CITY PLEASE CONTACT AM ELSH AT LEAST TWENTYFOUR HOURS PRIOR TO THE PROGRAM OR ACTIVITY . IN ORDER FOR THE CITY TO REASONABLY ACCOMMODATE YOUR REQUEST THEBOARD(COMMITTEE)MAYONLYCONDUCTPUBLICBUSINESSAFTERAQUORUMHASBEENESTABLISHED.IFNO QUORUMISESTABLISHEDWITHINTWENTYMINUTESOFTHENOTICEDSTARTTIMEOFTHEMEETINGTHECITYCLERKOR DESIGNEEWILLSONOTETHEFAILURETOESTABLISHAQUORUMANDTHEMEETINGSHALLBECONCULDED.BOARD MEMBERSMAYNOTPARTICIPATEFURTHEREVENWHENPURPORTEDLYACTINGINANINFORMALCAPACITY. S:\CC\WP\JANET\POLICE PENSION FUND.doc 1 THE SIXTH JUDICIAL CIRCUIT - I TN THE CIRCUIT COURT OF I IN AND FOR PINELLAS COUNTY, FLORIDA APPELLATE DIVISION BRUCE THOMPSON, Petitioner CASE NO. 12- 000044AP -88A UCN: 522012 AP000044XXXXCI vs. BOARD OF TRUSTEES OF THE CITY OF SEMINOLE MUNICIPAL FIREFIGHTERS' PENSION TRUST FUND, Respondent. RESPONSE TO PETITION FOR WRIT OF CERTIORARI This case is before the Court pursuant to a Petition for Writ of Certiorari filed by Petitioner, BRUCE THOMPSON (otherwise referred to as "claimant "),to review an Order of the BOARD OF TRUSTEES OF THE CITY OF SEMINOLE MUNICIPAL FIREFIGHTERS' PENSION TRUST FUND( "Board "), entered on September 7, 2012(Ex.A1) denying Petitioner's claim for a disability benefit from the City of Seminole Municipal Firefighters' Pension Trust Fund based upon his ineligibility for benefits. The Petition for Writ of Certiorari is limited solely to the issue of whether Petitioner is eligible to be considered for a disability pension benefit under the provisions of the Pension Plan. The Board did not consider the merits of Petitioner's claim for disability benefits. The proceedings were 'References are to Exhibits in the Appendix attached to the Petition for Writ of Certiorari (Ex. A. P. ) or the Supplemental Appendix attached hereto (S. Ex. P. 1 conducted in accordance wit,h the claims procedures se Operating Rules and Procedures adopted by fhe Bca/d Pursuant to the claims procedures -he Board t Tr'Astees me initially on April 19, 201? fp consider Peritioner's .1pp,fcatlo- for disability benefits. After considerinq the looumentar evidence before the Board at that time ,ncluding 'rie records surrounding Petitioner's teLmination of employment, the Board entered its initial Order finding that Petitioner was ineligible for a disability pension as a result of his terminatLor employment by the City for disciplinary reasons, not relating tp any medical condition. The Board's Initial Order was entered or April 19, 2012 and informed Petitioner of nis right *c a evidentiary hearing. Petitioner requested and received a tui, evidentiary hearing on the issue of his eligibility for disability benefits. The Board of Trustees met on August 27, 2012 and again considered the documentary evidence that was presented to the Board in connection with Petitioner's claim. The Board of Trustees limited its decision solely to the issue of whether .0 not Petitioner was eligible to receive a disability pension, since his employment had been terminated for reasons unrelated to his medacai condition before he filed his application for disability benefits_ The Board's Final Order was limited to this issue and the Hoary never considered Petitioner's disability claim on the merits, rhe Final Order issued by the Board on September !, 2012 reflected the Board's findings and its conclusion that caiman ,_ was ineligible F f 4 ' for a disability benefit under the Pension Plan. (Ex. Al) . The proceedings before this Court ensued. THE FACTS Petitioner, Bruce Thompson, was employed by the City of Seminole Fire Department for approximately 13 years and as a condition of employment, he was a member of the City of Seminole Municipal Firefighters' Pension Trust Fund for his entire period of employment. On December 23, 2004, Claimant's employment as a firefighter with the City of Seminole Fire Department was terminated for disciplinary reasons according to City personnel records received by the Board. The records are clear and Petitioner admits that he was given the opportunity to challenge his employment termination for disciplinary reasons and that he knowingly and voluntarily waived his right to challenge his termination. This fact is the basis for the Board's conclusion that there was a non - medical termination. On February 27, 2005, more than sixty days after his termination of employment, Claimant first contacted the plan administrator, Doug Peltz, to inquire about applying for a disability pension benefit. He was told at that time and on several subsequent occasions that he was ineligible. Petitioner formally applied for a disability pension from the pension plan on March 23, 2012. The other facts described in the Petition are generally correct. The proceedings described in the above section regarding the case then ensued. 3 ARGUMENT A. Scope of Review. Petitioner properly indicates that review of the decision of the Board of Trustees of City of Seminole Municipal Firefighters Pension Trust Fund is by means of Certiorari to this Court In reviewing the decisions of a lower tribunal, such as the Board pursuant to Circuit Court's certiorari jurisdiction, the Court's scope of review is limited to a determination of whether procedural due process has been accorded, whether the essential requirements of the law have been observed, and whether the decision is supported by substantial, competent evidence. (Campbell v. Vetter, 392 So_ 2d 6 (4 DCA 1981)) On a Petition for Writ of Certiorari the reviewing Court does not reweigh the evidence. but merely examines the record to determine whether the Board had competent substantial evidence before it to support its findings ana judgment, which must also accord with the substantial requirements of the law. (DeGroot v. Sheffield, 95 So 2d 912 (Fla. I957)' The Campbell Court clearly stated the Circuit Court's role in reviewing the Board's decision indicating that the Court should not reevaluate conflicts in evidence, as such would amount to an improper granting of a trial de novo. (Campbell, p 8) B. Pension Board's Responsibility and Authority The City of Seminole Municipal Firetighters' Pension Trust Fund in effect on December 24, 2004 is applicable to this case .Ex 4 A3) . Section 3 of the pension plan sets forth the authority of the Board of Trustees of the pension plan. (Ex. A3, p. 3). This section clearly indicates, "The sole and exclusive administration of and responsibility for the proper operation of the System and for making effective the provisions of this ordinance are hereby vested in a Board of Trustees." Section 3 goes on to explain the composition of the five member Board of Trustees and further explains the Board's duties and responsibilities. Subsection 5. indicates as follows: "5. The duties and responsibilities of the Board shall include, but not necessarily be limited to, the following: (1) To construe the provisions of the System and determine all questions arising thereunder. (2) To determine all questions relating to eligibility and membership. (3) To determine and certify the amount of all retirement allowances or other benefits hereunder. (4) To establish uniform rules and procedures to be followed for administrative purposes, benefit applications and all matters required to administer the System." Clearly, it is the Board of Trustees' responsibility to interpret the provisions of the pension plan and determine all questions arising thereunder. The Board properly interpreted the Pension Plan in accordance with its responsibility to do so and the Board's interpretation of 5 the language of the Pension plan ear: , r i ~r, ::r u. be given great weight by the Courr and he Left .i.nd, sturbed ;'h.€, law is clear that the decisions of the agency which zs charged wit~ the responsibility of interpreting statutory provisions should he given great weight by the Courts and that Courts should not disturb the decisions of the agency charged with administering certain statutory language unless clearly erroneous. (Warnock v. Florida Hotel and Restaurant Commission, 178 So. 2d 91 (3DCA x.965), app dismd. (Fla.) 188 So. 2d 811, P. W. Ventures, Inc. v. Nichols, 533 So. 2d 281 (Fla. 1988)) C. Applicability of Chapter 175, Florida Statutes. Petitioner improperly asserts that the provisions of Chapter 175, Florida Statutes, control the pension plan for the City of Seminole Firefighters and that the provisions of Chapter 175 take precedence over the pension plan which is adopted by the City of Seminole for its firefighters. The City of Seminole Municipal Firefighters' Pension Trust Fund and all amendments thereto are adopted by Ordinances of the City of Seminole, The pension plan Ls properly identified as a "local law plan" as defined in Section 175.032(11) of Chapter 175, which is adopted by ordinance of the City of Seminole. As a local law plan, the plan must meet the minimum requirements for benefits under Chapter 175, but may vary from the provisions of Chapter 175 as provided in Section 175.032(11). (S, Ex. B. Cities are not required to have any pension plan for their firefighters and they may adopt a pension plan which is not in compliance with Chapter 175. The reason for complying with Chapter 175 is that Section 175.101 of Chapter 175 provides a source of funding representing a return to the City of a tax on fire insurance policies issued on property within the City of Seminole. (S. Ex. B.) In the event that a local law pension plan meets the minimum requirements of Chapter 175 as determined by the Division of Retirement and pursuant to Section 175.341, the City annually receives a refund of these premium tax monies to be used to fund the firefighters' pension plan. (S. Ex. B.) In the event that a plan does not meet the minimum requirements of Chapter 175 as determined by the Division of Retirement, the City does not receive the State funding. Section 175.351 provides that: "... in order for municipalities with their own pension plans for firefighters, ... to participate in the distribution of the tax fund established pursuant to s. 175.101, local law plans must meet the minimum benefits and minimum standards set forth in this chapter." (S. Ex. B.) Section 175 .351(3) provides that all ordinances adopting a local law pension plan, as well as all ordinances amending the plan are required to be sent to the Division of Retirement in order that they can monitor compliance with Chapter 175. (S. Ex. B.) With respect to the City of Seminole Municipal Firefighters' Pension Trust Fund, all ordinances adopted by the City amending the firefighters' pension plan had been provided to the Division of Retirement and the City has received the State funding each year. As indicated above, State funding is only received if the local law plan is deemed to be in compliance with the requirements 7 of Chapter ' Accordingly, - must ng_ . :n, c ) uded - rya' , Division of Retirement has determined ; =a ?, a — . eye . anquaq provided for in the pension plan adopted by rrdinances r of Seminole complies with the requirements of Chaptei For this reason, it is not appropriate for the [ours t consider whether or not the Board has complied with Chapter 175 Florida Statutes, but the Court should look solely to the _anguage found in the pension plan adopted by the City of Seminole For the reasons set forth in this section, the discussion_ of the pension plan and the plan language applicable to Petitioner's claim will be limited to the provisions of the City of Seminole Municipal Firefighters' Pension Trust Fund and not Chapter '• 75, Florida Statutes. D. Ineligibility for Benefits - Interpretation of Plan Language. In light of the fact that Petitioner's employment as t. firefighter was involuntarily terminated by the City foz disciplinary reasons, the first issue which the Board needed tc consider at its initial hearing in connection with the disability application was whether his termination of employment affected Petitioner's right to receive a disability pension from the pension plan. Section 8, Disability, of the pension plan provides, "(a) Disability benefits in -line of duty. Any member who shall become totally and permanently disabled to the extent that he is unable, by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a Firefighter • which disability was directly caused by the performance of his duty as a Firefighter, shall, upon establishing the same to the satisfaction of the board, be entitled to a monthly pension equal to forty -two percent of his average monthly salary based upon his final two years of service plus an amount equal to the number of years of his Credited Service multiplied by three percent of his average monthly salary based upon his final two years of service, provided that the total monthly pension amount shall not exceed seventy -five percent of his average monthly salary based on his final two years of service: In no event, however, shall the benefit be less than the greater of two percent of Average Final Compensation for each year of Credited Service of forty -two percent of Average Final Compensation. Terminated vested persons are not eligible for disability benefits, except that those terminated by the City for medical reasons may apply for a disability within 30 days after termination." (Ex A3, p. 11) (emphasis added) The above language clearly provides that a member in the System who shall become disabled shall, upon establishing the same to the satisfaction of the Board, be entitled to a monthly pension. The first clause of the disability provision is conjunctive, requiring that the Board be provided with evidence that (1) Claimant is a member of the System and (2) Claimant is disabled. When Petitioner first inquired about filing an application for disability benefits, he was no longer an actively employed full - time Firefighter or a member of the plan. City records showed he was fired for reasons unrelated to his medical condition. Upon his termination of employment, he lost his status as a member of the plan and as a Firefighter and, therefore, lost his eligibility for disability pension benefits. The Board determined that the records submitted as evidence to the Board (Ex. A35) clearly showed that as 9 of the dare et the Petitioner ' ,nquicv regarding - isic benefits on February 27 ,'OCP:: and certainly upon rl]E- apuil: J, for benefits in March of 2012, Petitioner was not a Firefighter no was he a Member of the System, as those terms were defined, tre pension plan and, therefore, denied the application Section 1 of the pension plan defines "Member" as "an actively employed Firefighter who fulfills the prescribed membershit requirements." (Ex. A3, p. 2 The plan and Chapter 1 further defines "Firefighter" as " an actively employed full time person, employed by the City, who is certifiea is , Firefighter as a condition of employment (Ex A3 o )nce Petitioner's employment was terminated for his own misconduct he was no longer a Firefighter or a Member ir the System 1 status became one of teLulinated vested This means he would nave a right to a benefit in the future when ne ts - vt,herwase eitglble for retirement. (Ex. A3, p. 16) He has applied for and is yrrrentiv receiving an early retirement benefit from the plan attributable his thirteen years of service The Board of Trustees - eund that the intent of providing the disability benefits in the pension plan was to provide these benefits to Firefighters who are actual,1\ performing the duties of a Firefighter and who Dv reason >r medically determinable physical or mental lmpairment are - longer able to perform these duties Why would the 7ity >t r the adopted pension plan, provide for at enhanced benefit to be paid to a former firefighter who was f c= misconduct? 1 0 C In the case of Alvarez v. Board of Trustees for the City Pension Fund for the Firefighters and Police Officers in the City_ of Tampa, No. 93 -02986 (Fla. 13th Cir. Ct. Dec. 8, 1993), a firefighter voluntarily retired from the pension plan after applying for, but prior to completing the processing of his claim for disability benefits. Relying on the State of Florida Department of Administration, Division of Retirement v. Miranda, 513 So. 2d 170 (1DCA 1987), the Circuit Court found that once Mr. Alvarez took a longevity retirement from the plan he ceased to be a member of the plan on that date and his right to a disability pension ceased automatically because he had not qualified for that type of pension prior to his longevity retirement. This case is further support for the Board's decision finding Petitioner ineligible for disability benefits. Petitioner has applied for and is receiving a benefit based on his service. While this is a Circuit Court decision and not controlling, the reasoning in the case is persuasive and the facts are very similar. In the case at bar, Petitioner's employment was never terminated as a result of his disability, but his employment was terminated for misconduct, and therefore, he was not entitled to a disability retirement benefit. Petitioner could not perform his duties as a firefighter because he was fired, not because he is disabled. Petitioner argues that the language in Section 8 of the plan, which provides "Terminated persons, either vested or non - vested, are not eligible for disability benefits, except that those 11 terminated by the r!ity tor media reasons na, apo_ disability within thirty f30 days after , eLmlnation' rrt_ H Chapter 175 and is, therefore, in wit:b ChapLet anc cannot be applied to Petitioner While this language L lot tound in Chapter 175, this language was provided to the Florida Division of Retirement when adopted and has remained in the plan since its adoption without objection from the Division of Retirement. The reason for this is that this language is merely a reasonable interpretation of the provisions of Chapter 175 and the Seminole plan, which provide that only a full-time firefighter who is stilt a member of the plan can be eligible for disability benefits. The language simply provides that in the event that a member's employment is terminated, he will no longer be eligible for disability benefits. The language in the plan does, however, recognizes the one exception to this rule in the event that a person is terminated by the City for medical reasons. It would be inequitable to allow a City, which becomes aware of a potential disability claim by an employee, to merely terminate that employee's employment prior to them having the opportunity to apply for a disability benefit trom the pension plan. The exception provided for in the Seminole plan allows that if a member is terminated by the City for medical reasons, then he may apply for a disability benefit if he does so within thirty (30) days after his termination and, in that event that the application will be processed to its completion Since Petitioner was not terminated by the City fox medical reasons, this exception does not apply to nim and the language that 12 P ' provides that terminated persons are not eligible for disability benefits does apply to him. Petitioner became ineligible when his employment was terminated and, therefore, the date of his application for benefits is irrelevant. This was the Board's interpretation and it is fully supported by the language in the plan. Petitioner argues that the Board should make its own determination about whether or not Mr. Thompson was terminated for medical reasons. The Board does not have this authority. The City's decision to terminate Petitioner for disciplinary reasons, which could have been, but was not challenged by Petitioner, comes to the Board as a pre - determined fact -- a non - medical termination. The fact that other benefits were granted by other government agencies for Worker's Compensation, Social Security and Unemployment are not controlling on the Board's decision and do not change the fact that Petitioner's employment was terminated for non - medical reasons. Petitioner further alleges that language found in Section 8, subsection 4 of the plan, which provides that a member would be ineligible for a benefit resulting from a disability that was occasioned primarily by "injury or disease sustained after his employment as a firefighter with the City shall have terminated" indicates an intention to allow a terminated firefighter to be eligible to apply for a disability benefit at any time after termination of employment (five, ten, fifteen years later ?). (Ex. A3, p. 15) This language is intended to apply to the situation where a member has been terminated by the City for medical reasons 13 and, therefore, has a right th - lave henetit -c h, Board, but then sustains an iniur atter Li1 emphvment terminated but prior tb a decision bv - he Board employment injury injury could not form the basis or a disabilit pensaor and this is the reason for the inclusion t this language as an exclusion, not to allow an unlimited application period CONCLUSION The Board of Trustees properly interpreted the pension plan in accordance with its responsibility to do so and the Board's interpretation of the language of the plan regarding Petitioner's ineligibility for disability pension benefits is supported by the record. For the reasons set forth in this response, the Petition for Writ of Certiorari should be denied. 14 - r' 3 CERTIFICATE OF SERVICE 1 certify that a copy hereof has been furnished by mail, to Kelli Biferie Hastings, Attorney at Law, Firefighters Council of Central Florida, 2 Floor, 4005 N. Orange Blossom Trail, Orlando, FL 32804 this 6th day of December, 2012. Scott R. Christiansen CHRISTIANSEN & DEHNER, P.A. 63 Sarasota Center Blvd., Ste. 107 Sarasota, Florida 34240 (941) 377 -2200 Florida Bar No. 166637 Attorney for Respondent CERTIFICATE OF COMPLIANCE I hereby certify that this computer- generated response is prepared in compliance with Fla. R. App. P. 9.100 (1) with regards to font requirement of said rule. E'4 41111.1° Scott R. Christiansen CHRISTIANSEN & DEHNER, P.A. 63 Sarasota Center Blvd., Ste. 107 Sarasota, Florida 34240 (941) 377 -2200 Florida Bar No. 166637 Attorney for Respondent 15 c IN THE CIRCUIT (CUIT COURT OF THE SIXTH JUDICIAL CIRCUIT PINELLAS COUNTY FLORIDA BRUCE THOMPSON, Petitioner, CASE NO.: 12- 000044AP v. CITY OF SEMINOLE MUNICIPAL FIREFIGHTERS PENSION TRUST FUND, Respondents. REPLY Pursuant to Rule 9.100(K), Bruce Thompson, files this reply to the response to his petition for writ of certiorari to review a final order of the Board of Trustees of the City of Seminole Municipal Firefighters' Pension Trust Fund finding him ineligible to be considered for disability pension benefits. I. ARGUMENT The order under review departs from the essential requirements of law resulting in a material injury for which there is no adequate remedy by appeal because it conflicts with the minimum standards governing municipal pensions set forth in Chapter 175. Thus, it should be quashed. Respondents allege in their response that their decision to deny Petitioner eligibility to apply for disability retirement should be left undisturbed because, "[t)he law is clear that the decisions of the agency which is charged with the • 1 responsibility of interpreting statutory provisions should he given great weight t,, the Courts and that Courts should not disturb the decisions of the agency charged with administering certain statutory language unless clearly erroneous." (RB. 6)' Respondents cite to Warnock v. Florida Hotel and Restaurant Commission, 178 So.2d 917 (Fla. 3d DCA [965) and P.W. Ventures, Inc. v. Nichols, 533 So2d 281 (Fla. 1988) in support of this proposition. (RB, 6). However, the cited cases do not support the proposition that Respondents. the Board of Trustees of the City of Seminole Municipal Firefighters' Pension Trust Fund, are "the agency charged with administering" Chapter 175. That is. the cases cited stand for the proposition that when an agency is charged with the enforcement and interpretation of a statute, the courts should not depart from the agency's construction of the statute unless clearly erroneous. Warnock; Nichols. In Warnock, for example, the court deferred to the Florida Hotel and Restaurant Commission's interpretation of the statutes concerning motels and hotels Warnock. Likewise, in Nichols, the court deferred to the Florida Public Service Commission's interpretation of the public utility statutes. Nichols. Contrast the instant case, where respondent is simply a local pension board. and not the state agency charged with the administration and regulation of Chapter 175. To allege that a local pension board gets special deference with regard to the 'References to respondents' Response brief will be abbreviated by the letters. "RB" followed by the applicable page number(s) (e.g. RB. 5) construction of a state statute regulating pensions for the entire state, and for which respondents have no authority to enforce or interpret outside of the City of Seminole, is contrary to reason and clearly self - serving. To the contrary, Respondents get no special deference in their construction of Chapter 175. Thus, the standard of review is not whether respondent's interpretation of Chapter 175 is "clearly erroneous." Instead, the standard is whether or not Respondent's decision to find Petitioner ineligible for disability retirement departs from the essential requirements of law by failing to meet the minimum standards set forth in Chapter 175. See Nader v. Florida Dept. of Highway Safety and Motor Vehicles, 87 So.3d 712 (Fla. 2012). Determining whether or not Board's decision departed from the essential requirements of the law is another way of asking whether the Board interpreted and applied the law correctly. Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995) (noting that observing the essential requirements of the law is synonymous with applying the correct law). Thus, this court must determine the correct law and whether it was applied correctly without regard or deference to respondent's interpretation. Regardless, even under the heightened "clearly erroneous" standard, Petitioner submits that the Board's order denying him eligibility involved a clearly erroneous interpretation of Chapter 175. This is because Chapter 175 clearly 3 allows terminated persons to apply for disability retirement while the Board denied a terminated person's entitlement to disability retirement Furthermore, Respondents allege that "as a local law plan, the plan must meet the minimum requirements for benefits under Chapter 175, but may vary from the provisions of Chapter 175 as provided in Section 175.032(11)." (KB, 6). However, this statement is misleading because while a local law plan may provide more benefits to firefighters than those set forth in Chapter 175, it cannot provide less. In fact, §175.032(11) specifically states that "any such variance [from Chapter 175] shall provide a greater benefit to firefighters." §175.032(11), Fla. Stat. (emphasis added). By enforcing a local law plan that sets forth de facto that terminated persons are ineligible, the instant plan provides less benefits to its members than Chapter 175, which allows terminated persons eligibility for disability retirement. Therefore, §175.032(11) does nothing to support Respondent's contention that they can ignore the provisions of Chapter 175 in the enforcement of their local law plan. In their response brief, Respondents fail to address the merits of Petitioner's simple argument. That is, Respondents fail to address the inherent conflict between the provisions of their local law plan (which prohibits eligibility for disability retirement for terminated persons) and §175.191 (3)(d) (which permits terminated persons to apply for disability retirement). Instead, Respondents avoid the issue 4 altogether and allege that because they received funding from the Division of Retirement, "it must be concluded that the Division of Retirement has determined that all of the language provided for in the pension plan adopted by Ordinances of the City of Seminole complies with the requirements of Chapter 175." (R, 7 -8). Interestingly, Respondents cite to no legal authority in support of the proposition that the Division of Retirement's alleged implicit acceptance of their plan equates to a conclusion that the plan complies with Chapter 175. (R, 7 -8). Petitioner submits that there is no statutory or case law authority that supports such a proposition. And even if the Division of Retirement's payment of funding did equate to an implicit conclusion by the Division of Retirement that all provisions in the local law plan meet the minimum standards of Chapter 175, this court would not be bound by that determination. This court is instead entitled to review the Board's determination in the instant case and decide whether the Board applied the correct law. Haines City Community Development v. Heggs, 658 So. 2d 523 (Fla. 1995). Petitioner submits that the Board incorrectly applied the law because the law requires that terminated persons be considered eligible for disability retirement under § 175.191(3)(d). Respondents wholly fail to address the merits of this argument and simply avoid the issue. (RB, 6 -8). Nonetheless, that is precisely what 5 this court must determine: is the Board's decision in conflict with q' 1 7 . (3 I ' it so, the order below must be quashed. Respondents assert that this court should look only at the provisions of their local law plan and not to Chapter 175: "it is not appropriate for the Court to consider whether or not the Board has complied with Chapter 175, Florida Statutes...the Court should look solely to the language found in the pension plan adopted by the City of Seminole." (RB, 8). Again, Respondents fail to cite to any legal authority in support of this assertion. (RB, 8). It is not surprising that Respondents would prefer this court to look only at the local law plan instead of construing Chapter 175 because any construction of Chapter 175 leads to the inevitable conclusion that the local law plan at issue is m direct conflict with §175.191(3)(d). Moreover, Respondents make several factual allegations in their response without any citation to the record and which are in direct conflict with evidence in the record. For example, Respondents allege that Petitioner was "fired for misconduct" and that "[t]he records are clear and Petitioner admits that he was given the opportunity to challenge his employment termination for disciplinary reasons and that he knowingly and voluntarily waived his right to challenge his termination." (RB, 3, 10, 11). Petitioner disputes that he was fired for misconduct and instead asserts that his termination was pretextual and likely due to hip workers' compensation case, which was pending at the time. Furthermore, as stated in the petition, Petitioner challenged the City's allegation that he was terminated for misconduct in front of two different tribunals, the workers' compensation judge and unemployment hearing officer, and both found that his termination was for reasons other than misconduct and awarded him benefits. Additionally, Respondents completely misconstrue Petitioner's argument, stating that Petitioner is arguing that because Section 8 of the local law plan prohibiting terminated persons from entitlement to benefits is not found in Chapter 175, it must be in conflict with Chapter 175. (RB, 12). This is not what Petitioner is arguing. Instead, Petitioner is arguing that Section 8 of the local law plan is in direct conflict with § 175.191(3)(d) because § 175.191(3)(d) allows terminated persons to apply for disability retirement, while Section 8 does not. Respondents go on to argue that the one exception in their local law plan that allows terminated persons terminated by the City for medical reasons entitlement to disability benefits resolves any apparent inequities. (RB, 12). However, Petitioner submits that the local law plan is completely inequitable as applied to him because it allows the City to terminate him and have the City's self - serving determination that the termination was for misconduct stand as "a pre- determined fact." (RB, 13). 7 This type of provision opens the door for employers to terminate ernplovees under pretextual reasons simply to thwart a disabled employee's ability to obtain benefits. And Petitioner's termination does appear strikingly pretextual. he was allegedly terminated for cursing, something common at the fire house, white he was in the middle of litigation over his workers' compensation injury. Later. the workers' compensation judge determined that there was no misconduct his pan. and awarded him benefits. Likewise, the unemployment compensation hearing officer found that he did not engage in misconduct, and awarded benefits. 'the City attempted to deny Mr. Thompson's entitlement to both workers' compensation benefits and unemployment benefits on the basis that his termination was due to his own misconduct, and, in both cases, the City's denial was deemed unjustified. Yet his eligibility for disability pension benefits is being denied for the very same reason. By denying Petitioner eligibility to be considered for disability pension because he was terminated, regardless of whether that termination was justified or wrongful, is a departure from the essential requirements of law set forth in Chapter 175 resulting in a material injury to Petitioner. It is further in conflict with the principle of construction that pension plan statutes are to be liberally construed and that the courts should avoid a construction that creates ``an inequitable result or result in favoring one member over another." City of Miami v. Cleary, 75 So.2d 792 (Fla. 1954). Additionally, Respondents allege that the Board does not have the authority to make its own determination as to why Petitioner was terminated. (RB, 13). Respondents cite to no legal authority in support of this proposition; but, more importantly, Respondents misconstrue what Petitioner is seeking. Petitioner is not asking the Board to make a determination as to the reason he was terminated. Under §175.191(3)(d), the reason for the termination is irrelevant. See §175.191(3)(d), Fla. Stat. Instead, Petitioner is asking this court to find that the Board's decision is in conflict with § 175.191 which allows terminated persons to apply for disability retirement regardless of the reason for the termination. See § 175.191(3)(d), Fla. Stat. Because Petitioner is eligible for disability retirement under § 175.191(3Xd), he should likewise be eligible for disability retirement under the Board's local law plan. If the local law plan does not allow for that, it is in conflict with Chapter 175 and hence the Board's decision departs from the essential requirements of law. Furthermore, Chapter 175 puts no time limit on the application for disability benefits. See §175.191, Fla. Stat. Respondents argue this creates a slippery slope, where a terminated employee may apply for disability "five, ten, fifteen years" after termination of employment. (RB, 13). However, timeliness is not an issue in 9 the instant case, where the first inquiry was made on F ebruary l0. 2005 we] l within the thirty (30) day window (set forth in the local law plan) of Petitioner official termination date of January 21, 2005. Moreover, a failure to apply for disability retirement for five, ten, or even fifteen years only makes it more difficult for the applicant, who will ultimately be charged with the burden of proving disability at the time of the termination. See § 175.191(3)(d), Fla. Stat. (prohibiting disability retirement where the disability was "sustained by the firefighter after his or her employment has terminated. ")(emphasis added). If an applicant chooses to wait many years to apply, the applicant will have a heightened burden in attempting to gather the medical evidence to support his or her claim for disability many years earlier and will be prejudiced as a result of the applicant's own lack of diligence. Altogether, the Board's order denying petitioner's eligibility to apply for disability benefits should be quashed. It departs from the essential requirements of law set forth in Chapter 175 by creating a blanket bar of eligibility for disability pension against terminated persons. Under §175.191, Petitioner is eligible for a disability retirement because his disability occurred prior to his termination and because he does not meet any of the other exceptions to disability retirement eligibility set forth in §175.191(3). Thus, the order denying him eligibility is m violation of Chapter 175 and should be quashed. 10 1 4 I. CONCLUSION The order under review departs from the essential requirements of law resulting in a material injury to Petitioner for which there is no adequate remedy by appeal because it conflicts with the minimum standards governing municipal pensions set forth in Chapter 175. Thus, it should be quashed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the above has been furnished by email on this 31st day of December, 2012, to: Scott R. Christiansen, Esquire, Christiansen & Dehner, P.A., 63 Sarasota Center Blvd., Suite 107, Sarasota, Florida 34240, scoff @cdpension.com, Counsel for Respondent. Is/ Kelli Biferie Hastings, Esquire Fla. Bar No.: 588512 Law Office of Kelli 13. Hastings, PLLC Firefighters Council of Central FL, 2nd Floor 4005 North. Orange Blossom Trail Orlando, FL 32804 T: (407) 539 -3032 F: (407) 667 -8900 Attorney for Petitioner khastings@kbhastingslaw.com CERTIFICATE OF TYPE FACE COMPLIANCE 11 1[ HEREBY CERTIFY that this reply of Petitioner was +.computer - generated using Times New Roman fourteen point font on Microsoft Word, and thereby, complies with the font standards as required by Fla. R App. P. 9.210 for computer - generated briefs. Kelli Biferie Hastings, Esquire Fla. Bar. No. 588512 1 2 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL ACTION JOSEPH A. MARTINEZ, Petitioner, vs. Case No. 12 -2341 CA BOARD OF TRUSTEES OF THE CITY OF FORT MYERS POLICE OFFICERS' RETIREMENT SYSTEM, Respondent. ORDER GRAN'ITING PETITION FOR WRIT OF CERTIORARI THIS CAUSE comes before the Court on a timely "Petition for Issuance of Writ of Certiorari" filed by Petitioner on August 6, 2012, pursuant to Florida Rule of Appellate Procedure 9.100(f). After reviewing the petition, the response, Petitioner's reply, and the applicable law, the Court finds as follows: 1. Petitioner is seeking review of a Final Order of the Board of Trustees for the City of Fort Myers Police Officers' Retirement System ( hereinafter the Board), which determined that Joseph A. Martinez ( hereinafter Officer Martinez), was ineligible to be considered for disability pension benefits because he was terminated for non - medical reasons. 2. Officer Martinez was employed as a full -time police officer with the City of Fort Myers from August 28, 2001 to December 13, 2010. As a condition of his employment, Officer Martinez contributed a portion of his salary to the City of Fort Myers Police Officers' Retirement System (hereinafter Retirement System). The Retirement System is a defined benefit pension plan operated as a local plan pursuant to Chapter 185, Florida Statutes. 3. Petitioner alleges that from February 2007 to July 2008, Officer Martinez was involved in three separate, on-the-job shooting incidents which caused him to suffer from Post Traumatic Stress Disorder (PTSD) and severe depression for which he eventually received counseling and treatment. However, Petitioner alleges that Officer Martinez continued to suffer from these impairments and developed serious side effects from prescribed medications. On November 1 2010, based on the aforementioned health issues, Officer Martinez was approved for leave under the Family Medical Leave Act (FMLA) by the City of Fort Myers 4. On December 9, 2010, Officer Martinez applied for disability pension retirement benefits. On December 10, 2010, the application was processed by Lieutenant William Newhouse, who is also the Board Chairman, and the Board's Attorney, Scott Christiansen. On December 13, 2010, Officer Martinez was terminated for misconduct by Police Chief Baker after an internal investigation involving an arrest on September 23. 2010, for one count of felony domestic violence battery by strangulation and one count of misdemeanor domestic violence battery. On December 14, 2010, all lieutenants were notified by electronic mail that Officer Martinez had been terminated as a result of the internal investigation that was "finalized today." 5. Also on December 14, 2010, Attorney Christiansen on behalf of the Board sent a letter to Officer Martinez in regards to his disability claim. On December 29, 2010, in compliance with the Board's request, Officer Martinez's treating physician sent a letter to the Board which stated that Officer Martinez was "totally and permanently disabled" as a result of his work - related PTSD and severe depression. It is undisputed that consideration of Officer Martinez's disability claim continued to proceed in spite of his termination as evidenced through letters sent by Attorney Christiansen to Officer Martinez and others on December 30, 2010, February 7. 2011, February, 10. 2011, and February 23, 2011 6. On or about February 22, 2011. Officer Martinez filed a complaint with the IT S Attorney's Office, the Twentieth Judicial Circuit State Attorney's Office, the Federal Bureau of Investigation, and the Florida Department of Law Enforcement against Police Chief Baker and the Fort Myers Police Department alleging the adoption of `unwritten policies" concerning quotas for traffic citations and city ordinance violations, monthly arrest reports, and manipulation of violent crime statistics. 7. Thereafter, on March 29, 2011, Attorney Christiansen on behalf of the Board sent a letter to Officer Martinez which stated that because he was terminated for reasons other than medical on December 14, 2010, he did not qualify for disability benefits because they are only available to active police officers of the City of Fort Myers. Officer Martinez appealed and requested a hearing before the Board. The Board upheld its decision in an Order dated June 21, 2011. Officer Martinez timely appealed requesting a full hearing before the Board. On July 6, 2012, the Final Order, which is the subject of this appeal was issued and concluded that "once claimant was terminated for non - medical reasons, he became ineligible to be considered for a disability pension. The Board did not, therefore, consider the disability claim on its merits." 8. Petitioner is requesting that the Court issue a Writ of Certiorari reversing the Final Order's determination that Officer Martinez is ineligible for a disability pension because the Board's determination departed from the essential requirements of law, failed to afford Officer Martinez due process, and subjected him to disparate treatment. Specifically, Petitioner argues that the language in Section 62 -78 which is in the Local plan and not Chapter 185, is in conflict with Chapter 185 and, therefore, cannot be applied to Officer Martinez. In addition, Petitioner argues that Officer Martinez was retaliated against for filing a complaint against the Police Department, and that Police Chief Baker and Lt. Newhouse, who were members of the Board, 3 should not have participated in the decision making because there was a confhci interes. Lastly, Petitioner argues that Officer Martinez was treated disparately from others who were similarly situated who applied for disability retirement benefits. 9. Respondent agrees that the facts described in the Petition are generally correct However, Respondent disagrees with Petitioner's allegation that the Board's determination departed from the essential requirements of the law, that it failed to afford Officer Martinez due process, or that he was subjected to disparate treatment. 10. Responded argues that the Court should not be considering whether or not the Board complied with Chapter 185, Florida Statutes, but instead should consider if the Board complied with the language found in the local plan adopted by the City of Fort Myers in Chapter 62 of the City Code. Respondent admits that [wlhen Officer Martinez filed his application for disability benefits, he was an actively employed full -time Police Officer and a member of the plan, but when he was fired for reasons unrelated to the medical condition four days after his application date, he lost his status as a member of the plan and as a Police Officer and, therefore, lost his eligibility for disability pension benefits. See Respondent's response p. 10. 11. Respondent further argues that Petitioner's due process claims are unfounded. Respondent alleges that the length of time in commencing the hearing had nothing to do with Officer Martinez filing a complaint against the department, but was part of a process conducted by counsel upon receipt of an application for disability. Respondent further alleges that no decision would have been made concerning disability eligibility until all of the documentation and records were collected, which according to the operating rules required 90 days and could be extended for an additional 90 days before the initial hearing before the Board. Furthermore_ Respondent submits that Officer Martinez's objection concerning Police Chief Baker's and Lt. Newhouse's participation in the hearing was addressed on the record. Both submitted that they would not be biased against Officer Martinez because of the internal investigation regarding his misconduct and termination and the filing of a complaint against the department. Lastly, Respondent argues that the allegations and examples of disparate treatment should not be considered because the examples given are not other police officers that applied to the Retirement System, but only general employees. Respondent further alleges that neither of the general employees were terminated for misconduct as Officer Martinez. 12. The ruling of a board acting in its quasi-judicial capacity is subject to review by certiorari and will be upheld if it is supported by competent substantial evidence, if the essential requirements of law were observed, and if Petitioner was accorded procedural due process. Haines City Community Development v. Heggs, 658 So. 2d 523, 530 (Fla_ 1995). The circuit court has no jurisdiction to make factual findings or to enter a judgment on the merits of the underlying controversy. Evergreen the Tree Treasurers of Charlotte County, Inc. v. Charlotte County Bd. of County Com'rs, 810 So. 2d 526, 530 (Fla. 2d DCA 2002). 13. Chapter 185 concerning disability benefits and terminated persons is silent on that matter. Regardless of that fact, when the Court considers the language in section 62 -78 and the "Application for Disability Retirement" provided by the City of Fort Myers Police Officers Retirement System, neither supports the Board's findings that Officer Martinez is ineligible for disability benefits because he was terminated for non - medical reasons after submitting the application. 14. On December 9, 2010, which is the undisputed date Officer Martinez applied for 5 disability benefits he was still a hill -time employee of the Fort Myers* Police Department tY: approved FMLA leave. Even thong* section 62 -78 only states that "[tlennmated persons a/c not eligible" the application itself submits that * *THIS APPLICATION MUST BE SUBMITTED PRIOR TO YOUR TERMINATION FROM THE CITY EXCEPT THAT IF YOU ARE 'TERMINATED BY THE CITY FOR MEDICAL REASONS IT MUST BE SUBMITTED NOT LATER THAN 30 DAYS FOLLOWING YOUR TERMINATION BY THE CITY See a copy of the Application, attached hereto. Neither section 62 -78 nor the form explicitly states that once you are terminated you are no longer eligible. In fact, when section 62 -78 is read in conjunction with the form, both imply that you must apply for disability benefits prior to termination, which was done in this case. Moreover, it appears the inclusion of that provision m section 62 -78 and on the application is to grant an extra 30 days after termination if an officer was terminated for medical reasons. 15. Based on the foregoing and the record in this case, the Court finds that the Board's determination that Officer Martinez was not eligible for disability benefits because he was terminated after he applied for the benefits is contrary to law, as well as their own plan and procedures. Accordingly, it is ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is GRANTED. The Final Order of Board regarding this matter is quashed, ib DONE AND ORDERED in chambers at Fort Myers, Lee County, Florida this - day of. , 2011 1 40 Web y IP IS Keith R. K , Circuit J . ge Certificate of Service Pursuant to Rule 1.080 (h), Florida Rules of Civil Procedure, a copy of the above order has been furnished to James Brantley, Esquire, 2421 NW 41' Street, Suite A -1, Gainesville, Florida 32606; Scott R. Christiansen, Christiansen & Dehner P.A., 63 Sarasota Center Blvd., Suite 107, Sarasota, Florida 34240; and Court Administration (IV), 1700 Monroe Street, Fort Myers, Florida 33901, this day of , 2013. BY: !AN i SiJ aoq ue Jordan Judicial Assistant 7 CITY OF FORT MYERS POLICE OFFICERS' RETIREMENT sYS TEM &PPLICATION FOR DISABILITY RETIREME'N'T THE UNDERSIGNED MEMBER OF THE SYSTEM HEREBY APPLIES FOR D1S.AB1LIT`t' RETREMEN FROM THE CITY OF FORT MYERS POLICE OFFICERS' RETIREMENT SYSTEM. NAME: Q TE N ADDRESS: _ DATE OF BIRTH: )- DATE OF EMPLOYMENT: c S- es/ J ()B TITLE ,,f-)v c_t 4;c - Z2 DATE OF INJURY OR ONSET OF ILLNESS: Gr2 - 0 —z ©0 F 2-a ats El/7:10o t r SPECIFY WHETHER OR NOT INCURRED IN THE PERFORMANCE OF YOUR DEITIES AS A POLICE OFFICER. j Z /2 6 /3 �- '' ' r { 4' ' y . ( 'r,e4 , c17- CA C't lr 1n -Line vnt -7n L in: DESCRIPTION OF ACCIDENT, ILLNESS OR INJURY GIVING RISE TO DISABILITY, vs r rC.�ie- iww/BL .b SflooT f Gz�Cf -� �f /N ✓dc VL.L r, t! . t x'/c/ S' -7J`g 25/6 z/z. � S c ✓F�'F �f�P_f `/ Ad CURRENT EMPLOYMENT STATUS: ,firs T ^^ Active 0 Leave of Absence O Terminated Date Reason: WORKERS COMPENSATION. ti Yes ' No Date: __/1/4 _ ~ ** A PHYSICL4NTS STATEMENT DESCRIBING YOUR PERMANENT DISABILITY AND SPECIFICALLY INDICATING THAT YOU ARE TOTALLY _ YD P ' �� _ Y DISABLED TO THE EXTENT THAT YOU ARE UNABLE TO RENDER U EF L AND E 1r 5i' r CE AS A POLICE OFFICER MUST BE SUBMITTED WITH THIS APPLICATION. WAVER OF RIGHT TO PRIVACY AND AUTHORIZATION FOR PUBLIC DISCLOSURE OF MEDICAL RECORDS By requesting disability benefits from the City of Fort Myers Police Officers' Retirement System, l understand ane acknowledge that my medical, physical, psychological or psychiatric condition must be discussed by the Board of Trustees and the amount of my personal account activities and potential benefit levels within the Fund must also be discussed by the Board. By applying for the disability benefits and the signing of this waiver and authonzation, I hereby waive any right to privacy to all medical records, medical claims records and all other information required to be disclosed to or discussed by the Board of Trustees for the evaluation and determination of my claim and authorize all of such being disclosed as public records I, THE UNDERSIGNED APPLICANT FOR DISABILITY BENEFITS FROM THE CITY OF FORT MYERS POLICE OFFICERS` RETIREMENT SYSTEM, HEREBY CERTIFY THAT ALL OF THE ABOVE INFORMATION r� TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE .i4aor - em.er's Sign e Date * PHYSICIAN'S STATEMENT MUST BE ATTACHED TO THIS APPLICATION PRIOR TO SUBMISSION TO THE BOARD FOR PROCESSING. * *'PHIS APPLICATION MUST BE SUBMITTED PRIOR TO YOUR TERMLNATION FROM kik CITY EXCEPT '1-1 3AT IF YOU ARE TERMINATED BY THE CITY FOR MEDICAL REASONS IT MUST BE SUBMITTED NOT ATER THAN 30 DAYS FOLLOWING YOUR TERMINATION BY THE CITY. F -S 01 -15 -08 .. carol' FORT MYERS POLICE DEPARTMENT ,t iiitYas noR14, ? 2210 WIDMAN WAY FORT MYERS, FLORIDA 33901 ;A.:\ , The City of Palms December 10, 2010 Dougtart E. Baker Chief of Police 239321.7727 Attorney Scott Christiansen Christiansen & Dehner, P.A. Richard T. Carr Captain 63 Sarasota Center Blvd. Professional Standards Suite 107 239.321.7709 Sarasota, FL 34240 Dennis Eads Captain RE: Application for Disability Retirement 239.321. Bureau 71 Officer Jose h Martinez 23932i.777i A M. Duke Perry Captain D ear M r. Christiansen: Support ser vices 239.321.7776 Enclosed please find an Application for Disability Retirement for Officer Michael J. viola Joseph Martinez dated December 9, 2010. As required, Officer Captain operations Martinez has supplied a Physician's Statement, which is also enclosed. 439.321.7717 Sharon Wright Please do not hesitate to contact me if you have any questions or need Progratn /Fiscal Manager additional information. 239.321_7725 FORT MYERS POLICE OFFICERS' 239. 3 21.7700 chboard RETIREMENT SYSTEM 239.21.7 } Fax Sincerely, 239.337.5254 ! / .. "�v� WW 11-d William R. Newhouse Board Chairman WRN /dee Enclosures cc: Chief Douglas E. Baker Officer Joseph Martinez HONOR • ETHICS • ACCOUNTABILITY • RESPECT • TEAMWORK Exhibit IN THE CIRCUIT COURT OF THE TWENTIETH JUDICI.AL,CIRCUIT 1( IN AND FOR LEE COUNTY, STATE OF FLORIDA JOSEPH A. MARTINEZ, JR., Petitioner CASE NO. 12- CA- 002341 vs. BOARD OF TRUSTEES OF THE CITY OF FORT MYERS POLICE OFFICERS' RETIREMENT SYSTEM, Respondent RESPONSE TO ORDER TO SHOW CAUSE WHY WRIT OF CERTIORARI SHOULD NOT ISSUE THE CASE This case is before the Court pursuant to a Petition for Certiorari filed by Petitioner, JOSEPH A. MARTINEZ, JR.(otherwise referred to as "claimant "),to review an Order of the BOARD OF TRUSTEES OF THE CITY OF FORT MYERS POLICE OFFICERS' RETIREMENT SYSTEM (. "Board "), entered on July 6, 2012(Ex.A)' denying Petitioner's claim for a disability benefit from the City of Fort Myers Police Officers' Retirement System based upon his ineligibility for benefits. The Petition for Writ of Certiorari is limited solely to the issue of whether Petitioner is eligible to be considered for a disability pension benefit under the provisions of the Pension Plan. The Board did not consider the merits of Petitioner's claim for disability benefits. The proceedings were References are to Exhibits in the Appendix attached to the Petition for Writ of Certiorari (Ex. p. ) or the Supplemental Appendix attached hereto (S. Ex. p. _____) } conducted a accordance wicr ifte ,- aims procedures Operating Rules and procedures adopted - he hoary Pursuant t,c the claims procedures tFie Board of Trustees met initially on June 2, 2011 to consider Petitioner's appl2catior to disability benefits. After considering the documentary before the Board at that time, including the records surroundinq Petitioner's termination of employment, the Board entered Lts initial Order finding that Petitioner was Ineligible disability pension as a result of nis involuntary terminatior, of employment by the City for misconduct, not relating cc anv medical condition. The Board's Order was entered on June 21 ,=01 arm informed Petitioner of his right to a full evidentiary heariqm Petitioner requested and received a full evidentiary hearing or', the issue of his eligibility for disability benefits The Board of Trustees met on January 12, 2012 and June 20 2022 and considered the additional documentary evidence that was presented to the Boaro in connection with Petitioner's caim Including an independent medical examination that the Board directed to be performed order to ascertain whether the misconduct that resued Petitioner's termination could have resulted from the psychologi,7ai condition that he alleged formed the basis for his rhe Board of Trustees again limited its decision solely the 'ssue - pr whether or not Petitioner was eligible tr, -eceve 3 disabiitty pension, since his employment had been terminated for -easons unrelated to his medical condition shorr,1% after he 7;.ed application for disability benefits The Board's Final Jrder was limited to this issue and the Board never considered Petitioner's disability claim on the merits. The Final Order issued by the Board on July 6, 2012 reflected the Board's findings and its conclusion that claimant was ineligible for a disability benefit under the Pension Plan. (Ex. A) The Final Order also found that the Petitioner had not_ established by competent evidence that: 1: Petitioner's claim was denied based on retaliation against him. 2. Petitioner was subjected to any disparate treatment • resulting from being treated differently than any other disability Claimant who has applied to the City of Fort Myers Police Officers' Retirement System. 3. The Board is prohibited by the doctrine of waiver, from finding that Petitioner is ineligible for a disability benefit. The proceedings before this Court ensued. THE FACTS Petitioner, Joseph A. Martinez, Jr., was employed by the City of Fort Myers as a Police Officer from August 28, 2001 to December 13, 2010 and as a condition of employment, he was a member of the City of Fort Myers Police Officers' Retirement System for his entire period of employment. On September 23, 2010, Officer Martinez was arrested and charged with one count of felony Domestic Violence Battery by Strangulation and one count of Misdemeanor Domestic Violence Battery. Formal charges were filed by the State Attorney's Office on October 21, 2010. (Ex. E) 3 'fin December 0 , 2010 Pet i one r appJ :, ed tr -- ; sdt , pension from the pension pian. (Ex. ;n Decembe7 Petitioner's employment as a police office- with the For ?suer; Police Department was terminated for tihe misconduct described above. The facts described in the Petition are generally correct The proceedings described in the above section regarding 'he case then ensued. ARGUMENT A. Scope of Review. Petitioner properly indicates that review of the decision of the Board of Trustees of City of Fort Myers Police officers' Retirement System is by means of Certiorari to this Court rn reviewing the decisions of a lower tribunal, such as the Board. pursuant to Circuit Court's certiorari jurisdiction, ..he ouru` scope of review is limited to a determination of whether procedural due process has been accorded, whether the essential requirements of the law have been observed, and whether the decision is supported by substantial, competent evidence. (Campbell v _ Vetter, 392 So. 2d 6 (4 DCA 1981)) On a Petition for Writ of ^ertorari the reviewing Court does not reweigh the evidence, but merely examines the record to determine whether the Board had compe substantial evidence before it to support its findings and judgment, which must also accord with the substantial requirements 4 of the law. (DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957)) The Campbell Court clearly stated the Circuit Court's role in reviewing the Board's decision indicating that the Court should not reevaluate conflicts in evidence, as such would amount to an improper granting of a trial de novo. (Campbell, p. 2) B. Pension Board's Responsibility and Authority. The City of Fort Myers Police Officers' Retirement System is found in Chapter 62 of the Code of Ordinances of the City of Fort Myers. (S. Ex. B.) Section 62 -73 of the pension plan sets forth the authority of the Board of Trustees of the pension plan. (S. Ex. B., p. 5) This section clearly indicates, "The sole and exclusive administration of and responsibility for the proper operation of the System and for making effective the provisions of this ordinance are hereby vested in a Board of Trustees." Section 62 -73 goes on to explain the composition of the seven member Board of Trustees • and further explains the Board's duties and responsibilities. Subsection (f) indicates as follows: "(f) The duties and responsibilities of the Board shall include, but not necessarily be limited to, the following: (1) To construe the provisions of the System and determine all questions arising thereunder. (2) To determine all questions relating to eligibility and membership. (3) To determine and certify the amount of all retirement allowances or other benefits hereunder. (4) To establish uniform rules and procedures to be followed for administrative purposes, 5 henefiL applications anc a! _ matt; ro :e admini step he vst ' Clearly, :'t is the Board 'ru: _ es , 'esponsl_ 'D.; - ! - interpret the provisions of the oensior. clan and deternrnt. questions arising thereunder The Board properly interpreted the Pension Plan in accordance with its responsibility to do so and the Board's interpretation _, the language of the Pension Plan is clearly reasonable and should be given great weight by the Court and be left undisturbed he law is clear that the decisions of the agency which is charged wl th the responsibility of interpreting statutory provisions should tae given great weight by the Courts and that Courts should not disturb the decisions of the agency charged with administersna - «erfa }_n statutory language unless clearly erroneous (Warnock ` Florida Hotel and Restaurant Commission, 178 So_ 2d 91 3DCA app dismd. (Fla. 188 So. 2d 811. P. W. Ventures. Inc. v. Nichols 7? So. 2d 281 (Fla. 1988) C. Applicability of Chapter 185, Florida Statutes. Petitioner improperly asserts that the provisions of Chapter 185, Florida Statutes, control the pension plan for the Ch tv of Fort Myers Police Officers and that the provisions of Chapter t8`= take precedence over the pension plan which as adopted by the pity of Fort Myers for its police officers The City Dt Fort Myers Police Officers' Retirement System is found in Chapter 62 f °ne Code of Ordinances of the City of Fort Myers (S. 8 )‹ "io ; n Chapter 185. The pension plan is properly described by Pe. itioner as a "local law plan" as defined in Section 185.02(10) of Chapter 185, which is adopted by ordinance of the City of Fort Myers. As such, the plan must meet the minimum requirements for benefits under Chapter 185, but may vary from the provisions of Chapter 185 as provided in Section 185.02(10). (S. Ex. C.) Cities are not required to have any pension plan for their police officers and they may adopt a pension plan which is not in compliance with Chapter 185. The reason for complying with Chapter 185 is that Section 185.08 of Chapter 185 provides a source of funding representing a return to the City of a talc on casualty insurance on policies within the City of Fort Myers. (S. Ex. C.) In the event that a local law pension plan meets the minimum requirements of Chapter 185 as determined by the Division of Retirement, pursuant to Section 185.23, the City annually receives a refund of these premium tax monies to be used to fund the police officers' pension plan. (S. Ex. C.) In the event that a plan does not meet the minimum requirements of Chapter 185 as determined by the Division of Retirement, the City does not receive the State funding. Section 185.35 provides that: "... in order for municipalities with their own pension plans for police officers, ... to participate in the distribution of the tax fund established pursuant to s. 185.08, local law plans must meet the minimum benefits and minimum standards set forth in this Chapter:" (S. Ex, C.) Section 185.35(3) provides that all ordinances adopting a local law pension plan, as well as all ordinances amending the plan are required to be sent to the Division of Retirement in order that 7 they can monitor compliance w t :; (`rapt: -35 respect to the City of Forr Myers PoJ-1 -;- Ott cer Pe - i. - System, all ordinances adopted by the =rty amending th o officers' pension plan had been provided to cne ;tvtsi: Retirement and the City has received the State funding each year As indicated above, State funding as only received if ~he local law plan is deemed to be in compliance with the requirement. of Chapter 185. Accordingly, it must be concluded that tie Florida Division of Retirement has determined that all of the language provided for in the pension plan found in Chapter 62 of the Code of Ordinances of the City of Fort Myers complies with the requirements of Chapter 185. For this reason, it is not appropriate for the Court to consider whether or not the Board has complied with Chapter ,_85, Florida Statutes, but the Court should look to the .Language found in the pension plan adopted by the City of Fort Myers in Chapter 62 of the City Code. For the reasons set forth in this section, the discussion or the pension plan and the plan language applicable to Petitioner's claim will be limited to the provisions of the City of Forr Myerw, Police Officers' Retirement System and not Chapter 185, Florida Statutes. D. Ineligibility for Benefits - Interpretation of Plan Uanguage In light of the fact that Petitioner's employment as a police officer was involuntarily terminated by the City for misconduct the first issue which the Board needed to consider at its Ln tiaG 8 hearing in connection with the disability application was whether his termination of employment affected Petitioner's right to receive a disability pension from the pension plan. Section 62 -78, Disability, of the pension plan provides, "(a) Disability benefits -in -line of duty. Any member who shall become totally and permanently disabled to the extent that he is unable, 'by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a police officer, which disability was directly caused by the performance of his duty as a police officer, shall, upon establishing the same to the satisfaction of the board, be entitled to a monthly pension equal to 3.24 percent of his average final compensation multiplied by the total years of credited service, but in any event the minimum amount paid to the members shall be 42 percent of the average final compensation of the member. In addition, each member who retires pursuant to this section shall receive an additional monthly benefit of $290.00, which shall be payable to the retiree for life, ceasing on death. This benefit shall be payable to all current and future disability retirees. Terminated persons, either vested or nonvested, are not eligible for disability benefits, except that those terminated by the city for medical reasons may apply for a disability within 30 days after termination." (S. Ex B, p. 14) (emphasis added) The above language clearly provides that a member in the System who shall become disabled shall, upon establishing the same to the satisfaction of the Board, be entitled to a monthly pension. The first clause of the disability provision is conjunctive, requiring that the Board be provided with evidence that (1) Claimant is a member of the System and (2) Claimant is disabled. When Petitioner filed his application for disability benefits, he was an actively employed full - time Police Officer and a member of 9 the plan, out when he was tirec 'c - c:asons “71 medical condition our days after nis application date he - status as a member of the plar and as i Poi3 Ottacer an therefore, lost his eligibility tor disability pension lanenetai., The Board determined that the records submitted as evidence t 'he Board (Ex. E) clearly showed that as of the date or the hearing, Petitioner was not a Police Officer nor was he a Member of the System, as those terms were defined in the pension plan and therefore, denied the application. Section 62-71 of the pension plan defines "Member" as an actively employed Police Officer who fulfills the prescribed membership requirements." (S. Ex 13, p. 3) The plan (and Chapter 185) further defines "Police Officer" as " an actively employed full-time person, employed by the City, who is certified as a Police Officer as a condition of employment " S. Ex. h, o Once Petitioner's employment was terminated for his own misconduct, he was no longer a Police Officer or a member in the System. status became one of terminated vested_ This means he will have a right to a benefit in the future when he is otherwise eligible to retirement. (S. Ex. B. p 18 ) He will receive a benefit from the- plan attributable to his service, but he will not get an rmmediate disability benefit, The Board of Trustees found that the intent of providing the disability benefits in the pension plan was to provide these benefits to Police Officers who are actually Performing the duties of a Police Officer and who, by reason ,pt medically determinable physical or mental impairment are nc longei 10 able to perform these duties. Why would the City of Ft. Myers, in the adopted pension plan, provide for an enhanced disability benefit to be paid to a former police officer who was fired for misconduct? This situation is analogous to the case of State of Florida, Department of Administration, Division of Retirement v. Miranda, 513 So. 2d 170 (1 DCA 1987). While this case deals with the provisions of the State of Florida Retirement System, the principles are the same. In this case, Firefighter Miranda became ill, and was diagnosed as having terminal cancer. He applied.for a disability benefit, but prior to any action by the Division of Retirement to approve the disability benefit, Mr. Miranda died. The State determined that Mr. Miranda only had the right to receive a death benefit and did not have a right to receive a more lucrative disability benefit. Mrs. Miranda filed suit, claiming that her husband had been disabled and had applied for a disability benefit prior to his date of death, and therefore, should qualify for disability benefits. The Court found, that because Mr. Miranda died prior to the approval of payment of disability retirement benefits, his employment was not terminated by disability, but rather by death. Because his employment was never terminated by disability retirement, he was not entitled to a disability retirement benefit. In the case of Alvarez v. Board of Trustees for the City Pension Fund for the Firefighters and Police Officers in the City of Tampa, No. 93 -02986 (Fla. 13th Cir. Ct. Dec. 8, 1993), a 11 firefighter votuntari retired Trom pensflor applying for, but prior to completing the processing ): a ,r, for disability benefits. Relying on the Miranda case, fle. Court found that once Mr Alvarez took a krnclevity ret:rement trom the plan he ceased to be a member of thepian on that date ana n:s right to a disability pension ceased automatically because he had not qualified for that type of pension prior tc his iongeyit retirement. This case is further support for the Board's decasion finding Petitioner ineligible for disability benefits. While this is a Circuit Court decision and not controlling, the reasoning in the case is persuasive. In the case at bar, Petitioner's employment was never terminated as a result of his disability, but his employment was terminated for misconduct, and therefore, he was not entitled te a disability retirement benefit_ Petitioner cannot perform nis duties as a police officer because he was fired, not because he Is disabled. Petitioner argues that the language in Section 62 which provides "Terminated persons, either vested or non-vested, are not eligible for disability benefits, except that those terminated by the City for medical reasons may apply for a disability wiLnin thirty (30) days after termination" is not in Chapter i85 and Ls, therefore, in conflict with Chapter 185 anc cannot be appliec to Petitioner. While this language is not found in Chapter L_85, tnus language was provided to the Florida Division of Retirement when adopted and has remained in the plan since :ts adoption without 12 objection from the Division of Retirement. The reason for this, is that this language is merely interpretation of the provisions of Chapter 185 and the Fort Myers plan, which provide that only a full -time police officer can be eligible for disability benefits. The language simply provides that in the event that a member's employment is terminated, he will no longer be eligible for disability benefits. The language in the plan does, however, recognizes the one exception to this rule in the event that a person is terminated by the City for medical reasons. It would be inequitable to allow a City, which becomes aware of a potential disability claim by an employee, to merely terminate that employee's employment prior to them having the opportunity to apply for a disability benefit from the pension plan. The exception provided for in the Fort Myers plan allows that if a member is terminated by the City for medical reasons, then he may apply for a disability benefit if he does so within thirty (30) days after his termination and that the application will be processed to its completion. The Board of Trustees considered the fact that the misconduct that formed the basis for Petitioner's termination of employment might have resulted from his psychological condition. It should be noted that the Board of Trustees conducted its full evidentiary hearing on two dates. On the first date on January 12, 2012, after considering all the evidence that had been collected, the Board recognized the possibility that the misconduct that was the basis for Petitioner's termination of employment, might have resulted 13 from the psychologicai conditaon re eq basis of his disability and, therefore, hE ermination ;J,7 might have been considered as medically related )rde7, a clear resolution to this Issue, the Board directed that tui, psychological evaluation be conducted prior to the Board's fina decision to determine it the misconducL was caused o hLs psychological condition. A full psychiatric examination was conducted by Dr. Eric M. Kaplan and Dr. Kaplan confirmed that "It is my opinion that the medical condition of PTSD did not cause the behavior that led his termination." Having received evidence that the PTSD did not cause the misconduct, the Board determined, at its hearing on June 20 20i2, that the exception for medical terminations by the City did not apply. Since Petitioner was not terminated by the City for medica.L reasons, this exception does not apply to him and the language that provides that terminated persons are not eligible for disabiiity benefits does apply to him. This was the Board's interpretation and it is fully supported by the language In the plan Petitioner further alleges that language found in Section 62 78(d)(4), provides that a member would be ineligible for a benefit resulting from a disability that was occasioned primarily by "injury or disease sustained after his employment as a police officer with the City shall have terminated" indicates an intention to allow a terminated police officer to be eligible fnr disability benefit. (S. Ex. B p. This language would on11 14 apply to the situation where a member has been terminated by the City medical reasons and, therefore, has a right to have his benefit considered by the Board, but then sustains an injury after his employment is terminated but prior to a decision by the Board. This post - employment injury could not form the basis for a disability pension and this is the reason for the inclusion of this language as an exclusion. ' E. Timing of Determination of Disability Benefit Eligibility. Petitioner claims that the conduct of the Board in continuing to process Petitioner's application for disability benefits by the collection of medical, personnel and other records, is inconsistent with the Board's determination at the initial hearing that Claimant was ineligible for a disability pension benefit. Rule 14 of the Board's Operating Rules and Procedures (S. Ex. A) in Rule 14.1.C. provides: "It shall be the function of the General Counsel, throughout the claims procedure, to assist the Board in the discovery and presentation of evidence in order to assure that the Board receives all relevant information prior to the Board's decision." Upon receipt of application for a disability pension benefit, the General Counsel prepares a set of interrogatories to be completed by the Claimant. Once the completed interrogatories are received by the General Counsel, the process of collection of records begins. Records are requested from all health care providers, and personnel and workmen's compensation records are all requested from the City. Once all of the medical, personnel, and workmen's 15 compensator records are received the Operat_na Rules ilde -a an initial hearing must be neld within hlrety days -p, date that General Counsel receives tne interrogatcries ro Claimant, The claims procedure contemplates that the cllection records will take at least ninety .90, days and he Laiirt, procedure also provides that the Board can extend this ninety '90 day period for an additional ninety :90) days in order 1 assure that all records are collected and that a complete record submitted to the Board for consideration at the initial ftearino. These procedures were followed in this case. Once al] the records were collected, they were reviewed by General Counsel and, it was confirmed that an issue existed with respect to the termination of employment for non-medical reasons_ Having confirmed this issue with the receipt of records, the initiat hearing was scheduled and the Board was provided with all of the records and the Board made a decision on the preliminar eligibility issue. If at the initaal hearing, the Board nad determined that Petitioner was eligible to be considered - For , 4 disability pension, then all records already been collected and n( further delay would be experienced with respect to the Board' consideration of the claim on its merits Throughout the records collection procedure, the Board :)f Trustees is rot lirecti involved, General Counse2 and his staf are charged witt - he responsibility of collecting the records for consideration btu the Board at the initial hearing General - .2ounsel has no allri7( '( make any final decision with regard - eliqiPilit 1 6 eligibility. This decision can only be made by the Board at a hearing scheduled for this purpose. Petitioner alleges "The pension board behaved in all respects as if officer Martinez's application for disability pension was valid and was a valid and timely application." In fact, the pension board took no action with respect to petitioner's claim until the initial hearing. The case cited by Petitioner to support a finding that the Board of Trustees waived their right to raise the issue of ineligibility is a public employees' relations case dealing with a union waiving its right to demand bargaining over changes in contractual provisions. There are no factual parallels between this case and the case at bar, except to quote the maxim "waiver is the intentional or voluntary relinquishment of a known right, or conduct which warrants an .inference of the relinquishment of a known right." The Board of Trustees certainly did not intentionally or voluntarily relinquish any right to make a determination with regard to Petitioner's eligibility for a disability pension. The only conduct which Petitioner alleges could constitute an inference of the relinquishment of the Board's 'right to determine that Petitioner was ineligible for a disability 'pension was the fact that the Board's General Counsel was gathering information and creating a record which is required by the Operating Rules under which the Board operates. Certainly, the continuation of the collection of records regarding the merits of the disability even after Petitioner's termination for misconduct 17 cannot be seen as anything more 1 rte ompl e?:' ; >: collection contemplated by r_he Board s ,'i ms Procedure F. The Board afforded Petitioner Due Process. (1) Alleged Trustee Conflict of Interest Petitioner alleges that he was denied procedural due process because members ot the Board were alleged to have conflicts of interest, While it is true that both Lt, Newhouse and Police Chief Baker were involved in the internal investigation which ultimately led to Officer Martinez's termination of employment, this fact would not relieve them of their responsibilities as trustees of the City of Fort Myers Police Officers' Retirement System According to Section 62 -73 of the pension an :S Ex 13 P.5), the Chief of Police is a member of The Board of Trustees and three of the trustees are elected by a majority ot the police officers. Accordingly, Chief of Police Douglas Baker and member - elected Trustee William Newhouse were sitting members of the Board of Trustees and were required tc futtili the responsibilities of a trustee as provided for 111 rile section of the pension plan, as discussed above. Petitioner raised this issue at the initial hearing before the Board ano again at the Formal Evidentiary Hearing prior to consideration of the case by the Board of Trustees, Detective Newhouse was asked whether, as a result ot his investigation 'pf ,sir Martinez's conduct, he felt that he had any bias or preiudice toward Joseph Martinez that would prevent him from fair,, a_nd F8 impartially deciding the issue before the pension board in connection with Joseph Martinez's claim. Chairman Newhouse responded that he did not. Chief Baker, who ordered the internal affairs investigation and then rendered a final decision on the discipline, was asked whether, as a result of his participation in this procedure, he felt that he could still adhere to the requirements of the pension plan and the applicable law in this case and he was further asked whether he felt he would have any bias or prejudice toward Joseph Martinez that would prevent him from fairly and impartially deciding the issue before the Board in connection with Joseph Martinez's claim. His response that he had no issue with Joe Martinez and he believed that he could make a decision that is best for the pension plan and that followed the provisions of the law. This testimony is provided in an excerpt from the transcript of the Final Hearing found at S. Ex. D. Because of their responses to the questions asked, both trustees participated fully in the consideration of Petitioner's claim and the decision that was made by a unanimous decision of all - five members of the Board who were present at the hearings. The function of the Board of Trustees in connection with Petitioner's claim was not to re -judge or reconsider the circumstances surrounding Petitioner's termination for misconduct. The termination of employment came to the Board of Trustees as a fait accompli. Accordingly, the only issue that the Board needed to consider with respect to this claim 19 was che significance ;t che 'erminaL[on t mb,ovmeLI misconduct and the effect that this re1 ;t c — Petitioner's right to receive oi be el(LJ:i :J2 disability pension benef:t. Ali of the facts surrounding th(- internal affairs investigation of Officer Mart:nez were made a part of the record and all the information was avaliabie t each Trustee who participated in the decision of the Board There was no legal reason why either Lt. Newhouse m Thief Baker should not have performed their duties as trustees, particularly in light of their proclamation that chev had nc bias or prejudice toward Officer Martinez. (2) Alleged Retaliation. Petitioner alleges that the Board somehow changed its position regarding Petitioner's eligibility for pension benefits once the Police Chief and the Police Department received complaints of civil rights anc other violations made by Petitioner These complaints were made several months after Petitioner's actuaL termination rt employment by the Police Department Again, as of the date of these complaints, the Board of Trustees had taken hc actor with regard to Petitioner's eligibility or non eilgibi:ltv ror pension benefits. The claim had been processed in accordance with the Claims Procedure adopted by the Board and the f_nai identification of the eligibility issue was made on:_c, utter all the records were collected in accordance with the Boa.f procedures. The pension benefit _nellgibillt ). issue waE identified by the General Counsei for the Board and tnere was no evidence that the issue was ever discussed by the General Counsel and Police Chief Douglas Baker. The pension issues were identified in the course of records collection and preparation for the initial hearing. Any claims made by Petitioner against the Police Chief or the Police Department were totally unrelated to the issues before the Board of Trustees. Petitioner has alleged that the Board's decision to find that Petitioner was ineligible for a disability pension amounted to retaliation for protected speech under the First - Amendmerxt of the United States Constitution. The Rodin case cited by Petitioner deals specifically with an employee whose employment was terminated as a result of an employee's speech on a matter of public concern where the employee's first amendment interest in engaging in the speech outweighed the- employer's interest in prohibiting the speech to promote the efficiency of the public services it, performs and that the employees' speech played a substantial part in the employer's decision to terminate his employment. Officer Martinez's employment as a police officer was terminated by the City several months before his allegations against the Chief and the Department were made public. The Board of Trustees had no role in the termination of employment. As we have explained in several places above in this response, the determination that Petitioner was ineligible for a disability benefit was made by five members of the Board of Trustees following 21 an initial nearing and a fu],; evldentian 'lear'na 'ne ssc The decision was made after ail of he records 'ncJucinc frDS medical records, were collected and submitted c the Board alonc with the circumstances surrounding Petitioner's termlnatlon employment for misconduct. Only then was a decision made bv Board on this issue of eligibility, The collection of the records and the scheduling of the initial hearing on the issues was made in accordance with the Board's Claims Procedures. The proximity ir time between Officer Martinez's letter concerning the Fort Myers Police Department and the decision by the Board of Trustees was purely coincidental. Petitioner alleges that the Board changed its reading of the requirements for disability pension after Officer Martinez's letter had been published, when, in fact, the Board had taken no position as of that date with regard to the application. The only action which had been taken was the collection of medicai and other pertinent records by General Counsel, in preparation for the Board's initial hearing. G. Disparate Treatment. Petitioner alleges that he was treated differently and more harshly than other City employees had been treated regarding time lines for disability pension applications. He correctly indicates that the City of Fort Myers operates three separate public pension plans for its employees; one for general employees, one or firefighters and one for police officers. The only examples which Petitioner provides regarding disparate treatment refer to two disabilities that were considered by the General Employees' Pension Plan. Whether the language in the different pension plans are exactly the same, similar, or different makes no difference with respect to an allegation of disparate treatment. Only treatment of other police officers who are members of the City of Fort Myers Police Officers' Retirement System are relevant to an examination of whether there was disparate treatment or not. Petitioner has not argued that any other police officer was treated differently than he has been treated. The two situations which are cited by Petitioner, while they are general employees and not relevant to consideration of the police officers' pension plan, do not support Petitioner's allegation. Frank Colombo (Ex. R.) applied for a pension benefit on September 4, 1996. The payroll authorization form indicates that he was discharged by the City on August 21, 1996, fourteen (14) days before he applied for his disability pension. The form further indicates that the City had received a medical diagnosis by a physician indicating that Mr. Colombo was unable to return to his current type of work and he had, therefore, been discharged by the City. The record further indicated that his last day worked was February 14, 1996. It is not unusual for an employee who is sick or injured to be placed on light -duty or paid or unpaid administrative leave pending recovery from an illness or injury. This was undoubtedly the case with Mr. Colombo. However, while an individual is on light -duty, or paid or unpaid leave, he continues to be an employee of the City and, therefore, eligible to apply for 23 a pension benefit Also tanii Petitl.oner language in all the plans s the same Mr Colombo Ter .rec 1 - time when the provisions of Ordinance No 2 adopted bv the of Fort Myers on March 18, 1996 was an effect S ‹ reflected in the final order entered by the Board of Trustees DT the General Employees' Pension Plan in Mr. Colombo's case also provided in Ex. R. The relevant portions of Ordinance No. 277E at Section 13-328(1)) does not contain the language providing that terminated persons are not eligible for disability benefits, as alleged by Petitioner. General Employee, Ella Kersey, filed an application for disability benefits on October 24, 2006. Her application indicated that she was currently on a leave of absence on the date of b ier application. Again, a leave of absence means that she continues co be an employee of the City For this reason, her disabrLity application was processed and considered by the Board of Trustees, but her disability benefit claim was denied by the Board of Trustees of the General Employees' Pension Plan. She terminated her employment on April 28, 2007 shortly after the hearing on April 18, 2007 by the Board of Trustees of the General Employees' Pension Plan, at which hearing the benefit was denied. While the experience of members of the General Employees Pension Plan are totally irrelevant to treatment afforded by the Board of Trustees of the City of Fort Myers Police 1Dfficers Retirement System to its members, even the examples provided by Petitioner of disparate treatment in the General Employees' Pension Plan are not supported by the records provided by Petitioner. CONCLUSION The Board of Trustees properly interpreted the pension plan in accordance with its responsibility to do so and the Board's interpretation of the language of the plan regarding Petitioner's ineligibility for disability pension benefits is supported by the record. The evidence did not establish by competent substantial evidence that any of the Trustees were biased or prejudiced against Petitioner in connection with his claim for disability benefits, nor was there substantial competent evidence to establish that one or more of the Trustees were retaliating against Petitioner in connection with his claims against the Police Department made after he was fired. The Board did not deviate from the substantial requirements of the law in its decision to determine that Petitioner was ineligible to be considered for disability benefits, even though this issue was not finally identified and communicated to Petitioner until after all the records had been collected in preparation for the initial hearing. Finally, the record contained no evidence that in denying Petitioner's claim for disability benefits that Petitioner was treated differently from any similarly situated disability claimant who has applied to the City of Fort Myers Police Officers' Retirement System for benefits. For the reasons set forth in this response, the Petition for Writ of Certiorari should be denied. 25 CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished by mai_ ° (- James Brantley, Attorney at Law, 2421 N. W 41s Street Suite P.-" Gainesville, Florida 32606 this cs'4' day of October 20U /27 ) L4 Scott P. Christiansen CHRISTIANSEN & DEHNER, P.A. 63 Sarasota Center Blvd, , St.e "9 Sarasota, Florida 34240 (941) 37 -2200 Florida Bar No. 166637 Attorney for Respondent CERTIFICATE OF COMPLIANCE I hereby certify that this computer- generated response is prepared in compliance with Fla. R. App. P, 9.100 (._ with regards to font requirement of said rule. ,.7 .----) l/ Scott R. Christiansen CHRISTIANSEN & DEHNER, P.A. 63 Sarasota Center Blvd. Ste ,-' Sarasota, Florida 34240 941) 377- 2200 Florida Bar No. 16663 Attorney for Respondent 26 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, STATE OF FLORIDA JOSEPH A. MARTINEZ, JR., Petitioner vs. CASE NO: 12- CA- 002341 In re: Joseph A. Martinez, Jr. Disability Pension Application BOARD OF TRUSTEES CITY OF FORT MYERS POLICE OFFICERS' RETIREMENT SYSTEM, Respondent PETITIONER'S REPLY TO RESPONDENT'S RESPONSE TO ORDER TO SHOW CAUSE WHY WRIT Of CERTIORARI SHOULD NOT ISSUE Joseph A. Martinez, Jr. (hereinafter referred to as "Officer Martinez "), through undersigned counsel and pursuant to the Court's Order to Show Cause, dated September 7, 2012, files this Reply to Respondent's Response to Order To Show Cause Why Writ of Certiorari Should Not Issue. ARGUMENT IN REPLY ISSUE 1: CHAPTER 185 APPLIES AND ESTABLISHES THE MINIMUM BENEFITS AND REQUIREMENTS FOR THE PENSION PLAN. The Board admits that the City of Fort Myers Police Officers' Retirement System pension plan (hereinafter the "Board ") "must meet the minimum requirements for benefits under Chapter 185." Section 185.18, Florida Statutes, governs disability benefits available to police officers covered by Chapter 185 pension plans and provides, in pertinent part: For any municipality, chapter plan, local law municipality, or local law plan under this chapter: (1) A police officer having 10 or more years of credited service, or a police officer who becomes totally _and, permanently disabled in the line of duty, regardless 0;i length of service, may retire from the service of the city under the plan if he or she becomes totally and Permanently disabled as defined in subsection 2) j2y reason of any cause other than a cause set oud id subsection (3) on or after the effective date of dhc plan. Such retirement shall herei hE refe-red disability retirement (2) A police officer sAull be considered totalLy disabled if, in the opinion of the board of trustees, he or she 1L wholly prevented from rendering useful and effc'en service as a police officer; and a police office' w, be considered permanently disabled 3t, w the oprion .) board of trustees, such police officer ] ,,keU remain so disabled continuously and permanently Lrorn cause other than as specified in subsection 3 1 (3) A police officer will not be entitled to receive any disability retirement income if the disabilov result of: ia) Excessive and habitual use by the DOICP officer of drugs, _ntoxicants, or narcotics (b) Injury or disease sustained by the aou._ice officer while willfully and illegally participating ln fights, riots, civil Insurrections OY , t;t1J,e committing a crime; (c) Injury or disease sustained by the pollee officer while serving in any armed forces; (d) Injury or disease sustained by the police officer after employment has terminated; (e) Injury or disease sustained by the police officer while working for anyone other than the city and arising our of such employment 185.18. Section 62-78(a) of the City of Fort Myers Code of Ordinances for Police Officers' Retirement Svster dealing with dsainiiiL benefits provides in pertinent part: r (a) Disability benefits in -line of duty. Any member who shall become totally and permanently disabled to the extent that he is unable, by reason of a medically determinable physical or mental impairment, to render useful and efficient service as a police officer, which disability was directly caused by the performance of his duties as a police officer, shall, upon establishing the same to the satisfaction of the Board, be entitled to a monthly pension .... Terminated persons, either vested or nonvested, are not eligible for disability benefits, except that those terminated by the City for medical reasons may apply for a disability within 30 days after termination. (emphasis provided). The Board argues that because the City of Fort Myers Police Officers' Retirement System has been receiving its refund of premium tax monies from the State of Florida each year, the language contained in Section 62 -78(a) of the plan documents must meet the minimum benefit requirements of Chapter 185. Officer Martinez's issue is not with the plan language but with the Board's interpretation and application of the language in a manner inconsistent with Chapter 185. The last sentence of Section 62- 78(a) which makes a terminated person ineligible for disability pension governs the time for application for disability benefits, not the actual receipt or approval of disability benefits, when read together with the remaining portion of the sentence that states "those terminated by the city for medical reasons may apply_ for a disability within 30 days after termination." In other words, terminated persons may not apply for disability pension language, "except" that those terminated by the City for medical 3 reasons may apply tor a eisabll_tv pens tarp WIEr,L 1 Jfl termination. Interpreted this way, the language compl3es minimum standards established ln Section '85.18 Flor]da --tatutes The Board's interpretaLio ' rdr! p an i7icruaue, applied to this case, makes police officers Inealcible tc,, disability plan benefits if their disability pension application submitted and processed but not completed and approved wniLe rile officer is an active employee of the City rhat Lnterpretation 1, drawn from an incorrect reading of the piain Language Section 62-78(a) language and makes this Section of City )1-clinance far more restrictive than the minimum benefiT Levels estab lsned by statute. For this reason, the Section 62 'Oa) .anguage ,c1, thc Board has interpreted in this case), serves ro dilute statutory right to have his/her pension appiication processed - DTI its merits and constitutes an L_tivaidd exercise )r Aeicuatec legislative authority. The Court must look to the statutory _Language of Chapter A5. Florida Statutes that controls this pension plan when determin,ng if the Board's actions in this matter conform with the essential elements of the law. , ISSUE 2: THE BOARD MAKES CONFLICTING ARGUMENTS ON THE _ TIMING OF ITS DETERMINATION OF INELIGIBILITY FOR APPLICATION FOR DISABILITY BENEFITS. The Board argues that Officer Martinez lost his eligibility to apply for disability benefits the day his employment with the City was terminated for other than medical reasons. Therefore, the Board argues, effective December 13, 2010 (after Officer Martinez had applied on December 10, 2010), he was no longer eligible for disability pension benefits. Despite the Board's current rigid interpretation of the language of City Ordinance 62- 78(a), the Board nonetheless spent 110 days following Officer Martinez's application (and 106 days following the day they now claim he became automatically ineligible for disability benefits due to his termination from City employment) processing his application for disability pension benefits. The Board justifies this 110 days of activity by referencing Rule 14.1.0 of the Board's Operating Rules and Procedures which provides: "It shall be the function of the General Counsel, throughout the claims procedure, to assist the Board in the discovery and presentation of evidence in order to assure that the Board receives all relevant information prior to the Board's decision." (emphasis provided) 5 The Board argues on one nano -ha' '» o' : ecembel Officer Martinez was no onger eirgibie to fle disability pension benefits, yet says that the °:easor_ 'hit application was processed for , ! O days _after L was ,Pc; wa because of obligations and responsibii ties tne Board hac as J par - of the "claims procedure ' Moreover, the Board now suggests that the information they were gathering over the {) days was information necessary tc determine if Officer Martinez was eligible to make application fos disability pension benefits, an argument which runs counter ~ the argument that his termination for non - medical reasons twhicn the Board was aware of as early as December I4, 2070' disqual.__tieca nu.r outright from making application for disability benefits The Board's arguments are mutually exclusive, either he wa ineligible to make application for disability benefits Affective December 13, 2010,(meaning the Board would have no reason t; process a claim on his behalf) , or, Officer Martinez was qualified to make application for disability pension benefits and the }3oar° thru its obligations under its own rules, moved forward watr processing his claim for the next 110 days The Board's own conduct in continuing to process Oi y_cer Martinez's application we ' after nis 4 erm rat l on I s with the Board's later interpretation and determination r,, eligibility, and constitutes a waiver. For the Firs day, -- —after his application, the Board and its general counsel interpreted the language of Section 62 -78(a) the same way Officer Martinez does today. By holding the application out as valid and by failing to raise any ineligibility argument for 110 days after the application was submitted and processed, the Board waived its right to, ex post facto, decide that he never was eligible to apply for or receive a disability pension. ISSUE 3: THE TIMING OF THE BOARD'S DECISION THAT OFFICER MARTINEZ WAS INELIGIBLE TO APPLY IS SUSPECT. In its Response, the Board states: "...the determination that petitioner was ineligible for a disability benefit was made by five members of the Board of Trustees following an initial hearing and full evidentiary hearing on the issues. The decision was made after all of the records, including most medical records, were collected and submitted to the Board along with the circumstances surrounding Petitioner's termination of employment for misconduct." (Board's Response, p. 22) The facts outlined in Officer Martinez's Petition (which the Board admits are generally correct) prove the above statement to be untrue. The initial hearing into Officer Martinez's application for disability pension benefits was held by the Board on June 2, 2011. Following that hearing, the Board issued an Order dated June 21, 2011. A full evidentiary hearing was conducted in appeal of that 7 Order over two nearing days sjanuar ), ,f ? .:1110 ur The Board's Final Oroer was Issued 1Lv The Board now suggests that the determinatior o ficer Martinez's ineligibility to make applicatior for disab2 ity benefits was a made at the initial June 2 2011 hearing however the Board notified Officer Martinez of their sudden decision regarding his ineligibility to make application for disablirt% pension benefits by way of a letter dated March 29, 2OLi. rha March letter advised Officer Martinez that because Longer an active police officer of the Ci,y" he was "rL;) eiLibie for disability benefits.' The Board's March 29th letter to Officer Martinez, sent over 60 days before their first evidentiary hearing on his application was held, shows that the information gathered over the 110 days following his application for disability benefits was used as , part of processing his valid application and not gathered for use in determining whether or not he was eligible to make application for disability benefits. The sudden change of course regarding Officer Martinez's eligibility for a disability came soon after Trustee (Police Chief) Baker became aware of the professIona' complaints Officer Martinez had filed against him, and had nothing to do with information the Board had gathered (and was continuing to gather) in the 110 days following his application. ISSUE 4: THE BOARD DENIED OFFICER MARTINEZ DUE PROCESS BY ALLOWING TRUSTEES WITH CONFLICTS OF INTEREST AND BIAS TO PARTICIPATE IN THE HEARING AND DETERMINATION. Officer Martinez was denied procedural due process because members of the Board who had conflicts of interest and were biased against him were involved in making the decisions to deny him the ability to make application for disability pension benefits. The Board freely admits that both Trustee (Lieutenant) Newhouse and Trustee (Police Chief) Baker were involved in the internal investigation which led to Officer Martinez's termination. There is no dispute that Trustee (Chief) Baker voiced his displeasure with Officer Martinez in February 2012 over a professional complaint that Officer Martinez filed against the Chief. Despite, and over, Officer Martinez's objections, both Trustee (Lieutenant) Newhouse and Trustee (Chief) Baker were allowed to participate in the decisions of the Board. As such, Officer Martinez was not provided the opportunity to have his appeal heard by an impartial Board of Trustees. The Board's suggestion that these Trustees have the power to make final determinations regarding their own conflicts of interest and bias is absurd. Asking a Trustee or other official with an obligation to render decisions from a neutral and unbiased standpoint if "they think they can be objective and fair," and 9 using that answer as the 1" ; "7 c3 , won': : eL'Y)E''t with the basic notions of due process and - airness In affirming the need for fact-- f_inde° Impartiality, + he Pha r. District Court of Appeals has held: "The question presented whether the facts alleged would prompt a reasonably prudent person to fear that they will not obtain and fair and impartial hearmnq. It is not a question of how the judge actually feels, but that feeling resides in the movant's mind and the basis tor such feeling." Jones v. Florida Keys Community College, 984 So.c, S5 (Fla. 3rd DCA 2008) (holding Board of Trustees member who voted t( terminate faculty member was disqualified trom serving as hearino officer in his administrative appeal)(citing Charlotte County v. IMC Phosphates Co., 824 So.2d 298, 300 (Fla.tst DCA 2002) It was reasonable for Officer Martinez to see Trustee (Chief` Baker's February 2012 "slander" accusations as evidence of his bias against Officer Martinez. Likewise, It was reasonable tor Officer Martinez to assume bias in Trustee (Lieutenant) Newhouse following Trustee Newhouse's involvement in his arrest and the subsequent investigation that led to his termination. Officer Martinez raise° objections to the participation of Trustee (Chief) Baker anc Trustee (Lieutenant) Newhouse at each evidentiary nearing yet these objections were disposed of with little discussion, allowing boto Trustees to actively participate in the decision not `o accept Officer Martinez's applicatz.on for isabiI , t y pension oener: ._ 10 -- Conclusion For all the reasons outlined above, Petitioner renews his request that this Court reverse the Final Order, dated July 6, 2012 and issue an Order to the Board of Trustees to consider his disability pension claim on the merits. Joseph A. Martinez, Jr. 461 Ilk■ -44111 By Ja - Amp. • Florida Bar Number: 0068294 DONNELLY & GROSS, P.A. 2421 N.W. 41st Street, Suite A -1 Gainesville, Florida 32606 (352)374 -4001 11 CERTIFICATE OF SERVICE 1 hereby certify than a rrue ano correct copy nt f Pep:, to Respondent's Response to Petition Seeking Issuance c W of Certiorari has been provided USPS First Class mai 70 ' Christiansen, Christiansen & Dehner, P,A., 63 Sarasota Cente Blvd., Suite 107, Sarasota, Florida 34240 and to William Newhouse Chairman, Board of Trustees for Respondent, City of Fort Myen Police Officers' Retirement System 2210 Widman Way, For Myers Florida 33901 this 2nd day of November, 2012_ By Jams Brantl- Flori.. :ar Number: 0068294 2421 N.W. 41st Street, Suite A Gainesville, Florida 32606 (352)374-4001 CERTIFICATE OF COMPLIANCE I hereby certify that this Reply to Response ro Pettr_lon Seeking Issuance of a Writ of Certiorari complies with F1a. R. App, P. 9.100(1). -40110k By /MOS Mika. _ _ lames BraVailkuire Flori.a Bar Number: 0068294 DONNELLY & GROSS, P.A. 2421 N.W. 41st Street, Suite A-i Gainesville, Florida 32606 (352)374-4001 12 Barbara Ladue From: Barbara Ladue fladueb @bbpdpension.com] Sent: Wednesday, March 20, 2013 1:34 PM To: 'Athol, Toby'; 'Caudell, Scott'; 'Llopis, Jason'; 'ranzieffrank @gmail.com' Subject: Boynton Police Pension - 5th Board Member As you all know, Gary Chapman resigned from the Police Pension Board on 3 -7 -2013. His position was the 5 trustee position, which is Board appointed. Since we have special meeting scheduled for April 15, 2013 at 1:OOPM to have an "informal hearing" on the Epstein disability app, I will place on the Agenda, under New Business , the opening of the 5 trustee position for review and discussion. Please come to this meeting with ideas for the appointment of the 5 Board member and also be thinking of naming a new Chair to lead the Board. Please call me if anyone has any questions or concerns. Thanks. Barb La Due 5 REGULAR MEMBERS Fund Established by Ord. 245 (1953) * Commission Appointed - Four -year Term * *Elected by Police Officers - Four -year Term + Board Appointed - Four -year Term (Terms amended from two to four years per Ord. 10 -05, effective 02/02/10) 2013 MUNICIPAL POLICE OFFICERS' RETIREMENT TRUST FUND MEMBER EXPIRES PHONE PROFESSION *ATHOL, Det. Toby - Secretary 12/14 742 -6100 Police Department Appt'd 12//10 AthoIT(bbfl.us *CAUDELL, Inv. Scott 12/14 742 -6100 Police Department Appt'd 12/10 CaudellS af7bbfl.us +CHAPMAN, Lt. Gary — Chair 12/13 742 -6100 Retired Police Appt'd 2/16/10 chairmanebbpdpension.com **LLOPIS, Det. Jason 12/14 742 -6100 Police Department Elected 12/10 LlopisJ aebbfl.us **RANZIE, Frank 12/15 742 -6100 Police Department Elected 12/16/09 ranzief @bbfl.us PENSION ADMINISTRATOR: LA DUE, Barbara S.1CC \WPIBOARDS\LISTS12012 Board Lists\POLICE PENSION BD.doc Updated: 12/06/2012 August 10, 2009 October 1, 2009 . Two (2) legal residents of the City, who shall be appointed by the City Commission. Effective for terms beginning aftertheaffectiv a date of this Ordinan .each Each City Trustee shall have a term of fo ur (41 vears but serve serves, at the pleasure of the City Commission. Each City Trustee may succeed himself or herself as a Trustee. 2. Two (2) police officer participants of the City of Boynton Beach Police Officers Pension Fund, who are elected by a majority of the police officer participants in the Fund. Elections shall be held under such rules and regulations as the Board of Trustees shall from time to time adopt. Effective for terms beainnina after the effective date of this Ordinance, e . ch Eaeh police officer Trustee shall serve as a Trustee for a period of four (41 two (2) years, unless he or she sooner ceases to be a police officer in the employ of the Boynton Beach Police Department, whereupon their successor shall be elected by a majority of the participants of the Boynton Beach Police Officers' Pension Fund. Each police officer Trustee may succeed himself or herself as a Trustee . 3. A fifth Trustee shall be chosen by the majority of the other four (4) Trustees. This fifth Trustee 's name shall be submitted to the City Commission, which shall, as a ministerial duty, appoint such person to the Board as a fifth Trustee . Effective for terms beginning fter Page 12 of 71 August 10, 2009 October 1, 2009 the effective date of this Ordinance. the The fifth Trustee shall serve as a Trustee for a period of four (41 two years, and may succeed himself or herself as a Trustee. , B. Board Vacancies; Procedures to Fill Same. In the event a Trustee provided ------;7 for in Section 18- 166(A)(2) ceases to be a police officer in the employ of the City of Boynton Beach Police Department, he shall be considered to have resigned from the Board of Trustees. In the event such a Trustee shall resign, be removed, or become ineligible to serve as Trustee, the Board shall, by motion, declare that office of Trustee vacated as of the date of adoption of such motion. If such a vacancy occurs in the office of Trustee within ninety (90) days of the next succeeding election for Trustee, the vacancy shall be filled at the next regular election for the unexpired portion of the term; otherwise, the vacancy shall be filled for the unexpired portion of the term at a special election called by the Board. In the event a Trustee provided for in Section 18- 166(A)(1) and (3) shall resign, be removed or become ineligible to serve as Trustee, the Board shall, by motion, declare that office of Trustee vacated as of the date of adoption of the motion. The successor for the unexpired portion of the term shall be chosen in the same manner as an original appointment. C. Board Meetings: Quorum: Procedures. The Board of Trustees shall hold meetings regularly, at least once each quarter and shall designate the time Page 13 of 71