19-006607 Wissem Mejdoub, Et Al., As Participants In The City Of Hallandale Beach Police Officers&Apos; And Firefighters&Apos; Pension Plan vs. City Of Hallandale Beach Status: Closed Recommended Order on Thursday, February 11, 2021.

Summary: Petitioners proved that local pension plan board prohibited them from purchasing additional accrual rate, but failed to prove that they submitted a written request to do so to the Board or an oral request during a Board meeting.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

W ISSEM M EDJOUB , ET AL ., AS

P ARTICIPANT S IN THE C ITY OF

H ALLANDALE B EACH P OLICE O FFICERS '

AND F IREFIGHTERS ' P ENSION P LAN ,

Petitioner s , Case No. 19 - 6607

vs.

C ITY OF H ALLANDALE B EACH ,

Respondent .

/

R ECOMMENDED O RDER

On September 3 and 4 and October 2 , 2020, Robert E. Meale,

Administrative Law Judge of the Division of Administrative Hearings

(DOAH), conducted the final hearing by Zoom.

A PPEARANCES

For Petitioner Wissem Medjoub :

Michael A llen Braverman, Esquire

Michael Braverman, P.A.

2650 West State Road 84, Suite 104

Fort Lauderd ale, Florida 33312

For Petitioners Matthew Lewis, Jose Pan, Manny Gonzalez, an d

Alberto Wiener Ari:

Brendan M ichael Coyle, Esquire

Law Off ice of Brendan M. Coyle, P.A.

407 Lincoln Road, Suite 8 - E

Miami Beach, Florida 33139

For Petitioners Pietro Roccisano and Eric Bruce:

Teri Guttman Valdes, Esquire

Teri Guttman Valdes , LLC

1501 Venera Avenue, Suite 300

Miami, Florida 33146

For Respondent: Brett J. Schneider, Esquire

Weiss Serota Helfman Cole & Bierman, P.L.

1200 North Federal Highway, Suit e 312

Boca Raton, Florida 33432

S TATEMENT OF T HE I SSUES

The issue s are whether any P etitioner has proved by clear and convincing

evidence that he timely submitted a request to purchase "Additional Accrual

Service" (A AS) credit to the Board of Trustees (Board) of the City of

Hallandale Beach Police Officers' and Firefighters' Pension Plan (Plan) in

writing or at a public meeting and whether the Board prohibited such

P etitioner from purchasing the requested AAS credit.

P RELIMINARY S TATEMENT

This case arises from the settlement of Case 18 - 019266 in the C ircuit

C ourt of the 17th Judicial Circuit, in Broward County, between Respondent,

as plaintiff, and the Board , as defendant . Respondent commenced the

litigation in August 2018 to prohibit the implementation of legal opinion s of

Board counsel unrelated to the purchase of AAS credit, but amended its

complaint in August 2019 to prohibit the implementation of a legal opinion of

Board counsel allegedly supporting the untimely sale of AAS credit for less

than the cost specified in the Plan .

Entering into a settlement agreement (Settlement Agreement), which was

approved by the court on December 2, 2019, Respondent and the Board

agreed that the 19 claimants named in App endix B 1 to the Settlement

Agreement would have their rights determined by a DOAH administrative

law judge, who "shall apply and determine the AAS claims in accordance with

the standards for estoppel claims as described in Appendix C , " although the

more detailed statement of the issues stated the issues set forth above, not

the issue of equitable estoppel. 2 The Board has entered into a contract with

1 Appendix B identifies the 19 approved claimants: Luis Acosta, Garth Bonner, Eric Bruce,

Janira Camero, Gabriel Castillo, Miguel Cordova, Yvette De La Torre, David DeCosta, Gary

di Lella, John Faul, Anthony Gonzalez, Manny Gonzalez, Matthew Lewis, Wissem M edjoub,

Jose Pan, Pietro Roccisano, Philip Rothman, Stephen Sanfilippo, and Alberto Wiener [Ari].

2 Appendix C is entitled, "Procedure for Administrative Hearings regarding AAS Provisions , "

and states:

Any hearings conducted pursuant to [the settlement

a greement] shall be conducted in accordance with

Chapter 28 - 106 of the Florida Administrative Code, except as

specifically set forth below.

1. [Respondent] shall be given at least 30 days' written notice

of any hearing;

2. [Respondent] shall be provided w ith copies of any

documentary evidence to be presented by a claimant at

hearing at least 14 days prior to the hearing. Failure to

timely provide [Respondent] with any such documentation

will result in the claimant being barred from using such

documentation at hearing;

3. [Respondent] will be allowed to present evidence and

testimony at any such hearing concerning its position; and

4. In order to prevail at hearing, the claimant must establish

equitable estoppel by clear and convincing evidence that

he/she timely submitted a request to purchase AAS to the

Board, either in writing or at a public meeting, and that the

Board prohibited the member from making the purchase. A

claimant's uncorroborated testimony is insufficient evidence

to support a claim of esto ppel.

Typically, equitable estoppel would require a petitioner to prove by clear and convincing

evidence that the Board is asserting a material fact contrary to its previous representation of

such fact, the claimant r elied on the previous representation, and the claimant changed his

position in reliance on the previous representation and his reliance on it. See, e.g. ,

Goodwin v. Blu Murray Ins. Ag . , Inc. , 939 So. 2d 1098, 1103 (Fla. 5th DCA 2006). Noting the

obvious differences between equitable estoppel and the issues presented in Appendix C, the

administrative law judge issued on February 19, 2020, a Notice of the Proposed Statement of

DOAH calling for an administrative law judge to conduct a hearing and issue

to the Board a recommended order .

Requests for a n administrative hearing were filed by P etitioners , as

identified above in Appearances. The administrative law judge declined to

allow any person not listed in Appendix B of the Settlement Agreement to

participate as a party in th e proceeding.

At the hearing, P etitioner s called eight witnesses : Ken Cowley,

Jim Bunce, Eric Bruce, Pietro Roccisano, Wissem Medjoub, Alberto Ari,

Jose Pan, and Manny Gonzalez. Respondent called one witness: Rad u Dodea ,

who is its h uman r esources d irector . For ease of reference, each of P etitioners '

exhibits was marked by the name of the counsel offering the exhibit.

Mr. Braverman offered into evidence eight exhibits: Braverman Exhibits 1 - 6,

9, and 12. Mr. Coyle offered into evidence 16 ex hibits: Coyle Exhibits 1 - 7

and 9 - 17. Ms. Valdes offered into evidence 25 exhibits: Valdez Exhibits 2 - 5

and 7 - 27. Respondent offered into evidence four exhibits: Respondent

Exhibits 1 - 4 . All exhibits were admitted .

The court reporter filed the transcript on October 8 , 2020. T he parties

filed proposed recommended orders on December 18 , 2020.

the Issue, which alerted the parties to the differences, notwithstanding the mention of

"equitable estoppel" in the cour t's order and paragraph 4 of Appendix C, and allowed the

parties to comment on the appropriate issues for the proceeding. After considering the

comments, the administrative law judge announced the issues as set forth in the Statement

of the Issues, which o mits equitable estoppel.

However, the administrative law judge was unable to harmonize the responsibilities

assigned to the DOAH administrative law judge to weigh the evidence with the prohibition of

a finding supported only by the uncorroborated testimon y of a claimant, so the

administrative law judge advised the parties during the hearing that he declined to

implement the final sentence of Appendix C.

F INDINGS OF F ACT

1. At all material times, Respondent has maintained city police and fire

departments . 3 Respondent sponsors the Plan to provide defined benefits ,

mostly on retirement, to members of the Plan, who are current and former

city police officers and firefighters.

2. Respondent primarily documents the Plan in ordinances that it enacts

from time to time -- as relevant in this case, in 2008 and 2011 . 4 C hanges to

the Pl an may result from negotiations between Respondent and the police

and firefighters unions , and the collective bargaining agreement may

document the new provision until it is enacted by ordinance . T he relevant

agreement is the Collective Bargaining Agreemen t between Respondent and

the Hallandale Beach Professional Fire Fighters Metro Broward Local 3080

District 10 for October 1, 2005 through September 30, 2008 , as executed on

October 3, 2006 (CBA) . 5

3. The Plan and the funds associated with the Plan are "under the

exclusive administration and management" of the Board. 6 The

"responsibility for the proper effective operation of the È Plan and for

making [ 7 ] the provisions of this Ordi n ance is vested in [the] Board." 8 The

3 Subsequent to the timeframe at issue, the city fire department merged with the Broward

County fire de partment.

4 For most of the time in question, the relevant Plan wa s documented in City of Hallandale

Beach Ord. Nos. 2008 - 29 and 2011 - 11. Provisions material to this case were unchanged in

the 2011 ordinance. References to the "Plan" are to the 2011 ordin ance due to its superior

formatting and ease of use. All references to "section" or "§," such as "section 8.08," are to the

Plan, as codified by the ordinance, unless the reference is to Florida Statutes.

5 Presumably, Respondent negotiated identical lang uage in the collective bargaining

agreement with the police union, but this contract is not part of the record.

6 § 2.01.

7 "Making" probably means "implementing," because Respondent, not the Board, "makes" or

enacts ordinances.

8 § 3.01.

Board consists of one trustee electe d by the police, one trustee elected by the

firefighters, two trustees appointed by Respondent, and a fifth trustee , who

is selected by the other four trustees and appointed by Respondent . 9

4. T he Plan authorizes the Board "to take such action as may be

necessary to carry out the provisions of the Plan and all decisions of the

Board È , made in good faith, È shall be final, binding and conclusive on all

parties." 10 The Board may "establish and maintain communication with

[Respondent's] departments and othe r agencies of government as is

necessary for the management of the È Plan," but the Board must

"determine all questions relating to and process all applications for È

benefits." 11 However, "[i]f an action of the Board has an impact on

[Respondent's] contrib ution the action must be approved by the City

Commission . [Respondent] retains the right to obtain independent actuarial

services to determine financial impact." Despite this exception to the Board's

administrative authority, only the Board, not Respondent , is a fiduciary of

the Plan, so as to be subject to the obligation "to discharge its

responsibilities solely in the interest of the m emb ers and beneficiaries of the

Plan for the exclusive purpose of providing benefits to the members and

their beneficiarie s and to defray the reasonable expenses of the Plan." 12

5. A s authorized by the Plan, 13 the Board retained , at all material times,

the services of independent counsel, actuarial firms, and pension services

9 § 3.02. See also §§ 175.061(1)(b)2.; 185.05(1)(b)2 . , Fla. Stat. Chapter 175 applies to a city

pension plan for firefighters, and chapter 185 applies to a city pension plan for police officers.

10 § 3.09.

11 § 3.11(f) and (g).

12 § 3.10. This section continues: "T he [Board] shall exercise those fiduciary responsibilities

with the care, skill, prudence and diligence under the circumstances then prevailing that a

prudent person acting in a like capacity and familiar with such matters would use in the

conduct of an en terprise of a similar character and with similar aims."

13 § 3.12.

companies to assist in the administration of the Plan. Board counsel and a

representative of the pension services company routinely attended Board

meetings.

6. The Plan 's primary retirement benefit , which is payable for the

remaining life of the member , but not less than ten years, 14 is based on a

formula that , for a vested member , 15 multiplies the member 's final average

compensation by the member 's credited years of service by the applicable

annual accrual rate, which is typically 3.2%. 16 For instance, the lifetime

benefit payable to a member earning annual compensation of $50,000 with

20 years of service at an accrual rate of 3.2% would be $32,000 annually or

$2667 monthly. 17

7. The Plan's funding is more complicated and requires the services of a n

actuary to calculate the assets and liabilities of the Plan, whi ch are held by a

trust . 18 For a fully funded plan providing a defined benefit, the assets -- the

14 § 6.04.

15 The vesting period for the Plan is generally ten years. §§ 1.31, 1.32, and 8.01.

16 § 6.02.

17 The annual benefit is the product of $50,000 x 20 x .032.

18 For an excellent d iscussion of the responsibilities of an actuary in determining the proper

funding of a pension plan, see Vinson & Elkins v. Comm'r of Int. Rev. , 99 T.C. 9, 15 - 16 (1992),

which cites the following legislative history concerning the treatment of actuaries in The

Employee Retirement Income Security Act of 1974:

In estimating pension costs, actuaries must make

assumptions (Ñactuarial assumptionsÒ) about a number of

future events, such as the rate of return on investments

(ÑinterestÒ), employees' future earnings, and employee

mortality and turnover. Actuaries also must choose from a

number of methods to calculate future plan liabilities. The

amounts required to fund any given pension plan can vary

significantly according to the mix of these actuarial

assu mptions and methods. As a result, the assumptions and

methods used by actuaries are basic to the application of

minimum funding standards for defined benefit pension

plans. [citations omitted]

contributions of the plan sponsor ; the contributions of members ; for a local

pension plan for police officers and firefighters, the plan's share of state

excise taxes that are imposed on insurers 19 or local excise taxes that may be

imposed on local insurance premium s; 20 forfeitures , usually of the sponsor's

contributions on behalf of members whose service terminated prior to

vesting ; 21 and the expected investment returns o n these contributions and

forfeitures , from receipt until payout -- will provide adequate funds for the

plan's trust to pay all liabilities, or benefits , when due . The benefits include

projections and estimate s of how many members will become vested ; the

retirement benefits due based on the members ' final compensation level s ,

years of service, and form of benefit -- disability, early retirement, normal

retirement, and enhanced retirement benefits , such as from additional

accrual rate or additional year s of service; and the remaining life

expectancies of members when they start receiving retirement benefits . 22

19 §§ 175.1215 and 185.105, Fla. Stat.

20 §§ 175.101 and 185.0 8, Fla. Stat.

21 The Plan seems to preclude a forfeiture of the sponsor's contributions on behalf of even an

unvested member. Section 8.03 provides that "[e]very member shall have the right to receive,

in lieu of all benefits under the plan, a return of th e member's accumulated contributions." If

the member terminates with less than five years' service, the member is entitled "to a return

of the contributions" without interest. If the member terminates with more than five years'

service and elects a lump - su m "return of contributions," the member receives interest.

Section 1.01 defines "accumulated contributions" as "the sum of all amounts deducted from a

member's compensation or picked up on behalf of a member." Section 4.01 states that

Respondent "shall pic k - up, rather than deduct from each member's pay," specified

percentages of pensionable earnings, so the pick - up amount appears to be Respondent's

contribution on behalf of a member.

As discussed below, this case presents another category of forfeitures - - members' payments

for additional accrual rate that cannot be applied due to insufficient years of service at the

time of retirement.

22 See, e.g. , Vinson & Elkins , 99 T.C. at 13 (" The amount estimated to fund a defined benefit

plan is calculated by the pl an's actuary and is determined based upon actuarial assumptions

about a number of future events, such as rates of return on investments, the benefit

commencement date, future earnings, and member mortality, among other things. ") .

8. This case involves an optional enhanced retirement benefit in the form

of additional accrual rate . As noted below, eligible members have previousl y

been able to purchase additional accrual rate, but this case concerns a

pricing change that went into effect for police officers hired after January 1,

2006, and firefighters hired after January 1, 2007 . 23 Section 8.08 authorizes

such persons to purchase up to five years' additional accrual rate -- so as to

add 3.2% accrual rate to the Plan's 3.2% accrual rate, for a total 6.4% accrual

rate -- for each year of service that the member completes from his or her 16th

through 20th year s of service or, if fewer tha n five years' accrual rate is

purchased, for the purchased number of years constituting the final years of

service within the 16th through 20th years of service . 24 Taking the example

in paragraph 6 , if a member purchased five years' additional accrual rate

and retired with 20 years of service, the benefit would be $40,000 annually

or $3333 monthly . 25 In this illustration, the enhanced retirement benefit

would increase the member 's monthly benefit by $666 and would produce a

retirement benefit, at 20 years' s ervice, that would be the equivalent of the

retirement benefit, at 25 years' service, without the additional accrual rate

purchase. 26

23 The difference of one year reflects the one - year difference in the commencement date of

each union's collective bargaining agreement.

24 Section 8.08 does not so clearly limit the member purchasing fewer than five years'

additional accrual rate to the cor responding number of years in the member's 16th through

20th years of service, but the parties seem to share this interpretation. Thus, it appears that

a member purchasing three years' additional accrual rate would be required to apply the

additional rate to the member's 1 8 th through 20 th years of service.

25 The 3.2% accrual rate for the first 15 years at $50,000 would produce an annual benefit of

$24,000, and the 6.4% accrual rate for the final five years at $50,000 would produce an

annual benefit of $16, 000.

26 The total annual benefit of $40,000, as calculated in the preceding footnote illustrating the

effect of five years' additional accrual rate, is identical to the total annual benefit of a 3.2%

accrual rate for 25 years at $50,000.

9. Section 8.08 imposes three conditions on the purchase of additional

accrual rate . The member must have been employed as a police officer or

firefighter with Respondent for at least one year, the member "must exercise

this option within [90] days after completion of probation," and the member

"shall contribute the full actu a rial cost of the benefi t for each of year

enhanced multiplier purchased , " which the member may pay over ten years

or prior to entry into DROP, 27 whichever occurs first. During the time in

question, it appears that probation ran one year from the date of hire.

10. Section 8.07 authorizes an eligible member to purchase additional

years of service based on prior years of service with certain employers, such

as the military or other law enforcement agencies . Section 8.07 limits th is

"buyback" of prior service to four years' qualifying service and requires a

member to pay 8.4% of the member 's current annual compensation for each

year of prior service purchased. Section 8.07 allows a member five years to

pay the purchase price and limits a member to the purchase of no more than

a total of five years' additional accrual rate and additional years of service.

11. Nomenclature problems render some of the minutes of Board

meetings discussed below difficult to understand . The problem starts with

"AAS," which misleadingly refers to "service," not rate , so as to encourage

the reference to the purchase of additional accrual " rate " as the purchase of

" service, " which properly applies only to the purchase of additional years of

service. The confusion is compounded by the use of the term, "buyback" to

apply to the purchase of additional accrual rate, as well as to the purchase of

additional years of service. The sense of reacquisition in th e term , "buyback"

limits its use to the purchase of additional year s of service , because a

member is not reacquiring anything when she purchases additional accrual

rate . The Plan appropriately describes the purchase of additional years of

service as a "buyback," but does not use this term to describe the purchase of

27 DROP is the De ferred Retirement Option Program.

addit ional accrual rate , although the Plan elsewhere uses "buyback" to refer

to the purchase of both additional years of service and additional accrual

rate. 28

12. Distinguishing between these two enhanced benefits was less

important f or police officers hired on or before January 1, 2006, and

firefighters hired on or before January 1, 2007 . For them , each year of

additional accrual rate cost 8.4% of compensation and payment of the

purchase price was limited to five years -- the same terms that applied and

apply to the purchase of each year of additional service . A nother common

feature betw ee n the two optional benefits is their monetary value to the

member . A t all material times, for identically situated members , the

purchase of an additional year of accrual rate has resulted in the same

increased benefit as the purchase of an additional year of service. 29

Respondent introduced the 2005 and 2006 changes to end its subsidy of

members ' purchases of additional accrual rate, 30 but ob viously chose not to

end its subsidy of members ' purchases of additional years of service -- an

option that is obviously available only to new hires with qualifying past

employment.

13. C alculating the full actuarial cost of additional accrual rate should

not have been inordinately difficult. Compensation levels for the members

would have been relatively easy to project due to the nature of their

28 £ 1.01 ("Accumulated contributions shall È include buy - back amounts paid under sections

8.07 and 8.08.") .

29 Assume that the members are the same age, retire on the same date with 20 years of

service, commence benefits at retirement, and earned $50,000 at all times during

employment with Respondent. As noted above, the annual retirement benefit for such a

member who did not purchase additional accrual rate or additional years of service would be

$32,000. The purchase of one year of additional accrual rate would raise the member's

annual retirement benefit to $33,600: ($50,000 x 19 years x .032) ($50,000 x 1 year x .064).

The purchase of one year of additional year of service also would raise the member's annual

retirem ent benefit to $33,600: ($50,000 x 21 x .032).

30 Minutes of Board meeting on Aug. 27, 2007.

employment with expected raises based mostly on years of service . Normal

retirement under the Plan is the earlier of 25 years of service or 52 years of

age with at least ten years of service, and there is no mandatory retirement

age. 31 A member 's age at retirement would not have been difficult to project

due to the necessity that , for additional accrual rate, a member must work at

least through her 16th through 20th years of service and the knowledge of

the age of a member at the time of her employment. A member 's age at

retirement is especially important because a lifetime enhanced monthly

benefit of, say, $6 66 is far more costly to the Plan, for a member who is

52 years old at retirement than for a member who is 70 years old at

retirement , given the large difference in remaining life expectan cies between

these two retirees . With this information, coupled with standard mortality

tables and a n assumed investment return , an actuary could readily

determine the sum required to support the enhanced monthly benefit

payment .

14. Estimating the contribution required to generate the sum determined

in the preceding paragrap h also s hould have been straightforward. If a

member paid the contribution in a lump sum, the main task would be

settling upon a reasonable investment return from the contribution until

payout , more than 19 years later. If a member paid the contribution by

installments over ten years, the investment return would apply to each

payment, upon receipt, as payments made in the first year would produce

more total investment return than payments made in the tenth year.

15. As detailed below, two issues emerged that interfere d with the rollout

of the revisions to the purchase of additional accrual rate. The first issue ,

which was first seen in April 2007, wa s whether a vested member forfeited

her payment or payments if she retired prior to the 16th through 20th years

of service. If a member forfeits her payment or payments, an actuary could

31 § 6.01.

consider projected forfeitures in calculating the full actuarial cost of the

additional accrual rate purchase; this would lower the cost to a member ,

whose enhanced benefit would be partly paid by such forfeitures. This issue

may have been more theoretical, unless the Plan had had sufficient

experience with such forfeitures to allow an actuarial assumption as to the

amount that would be forfeited over a specific interval. In any even t, Plan

provisions clearly would have supported the Board's determination that such

forfeitures were not permitted by the Plan. 32

16. The second issue, with which the Board wrestled from at least

September 2008 33 through February 2009, 34 is whether a member who p ays

the full actuarial cost by installments must pay interest on the installments.

This issue raises questions about the communications between the Board

and its actuaries, 35 who , if asked, should have promptly advised the Board

that their actuarial calculations already captured the time value of money ,

so as to dispense with the necessity of charging interest . 36

32 See footnote 2 1 .

33 Minutes of Board meeting on Sept. 8, 2008.

34 Minutes of Board meeting on Feb. 23, 2009.

35 A couple of years later, relations between the Board and its actuaries were decidedly

suboptimal when the actuary informed the B oard that his firm would require an additional

$100 per calculation of the full actuarial cost of additional accrual rate, the Board told the

actuary that his firm needed to live up to its contract, a motion to approve the fee increase

died for lack of a second, and the actuary told the Board that the firm would resign, if the

Board failed to approve the fee increase. Minutes of B oard meeting on Oct. 10, 2011.

36 This assumes that Respondent or the trust did not effectively lend the purchase price to

the member -- perhaps, to simplify the actuarial calculations -- and, if not, that the actuaries

made some attempt at pricing the full ac tuarial cost based on how long the trust held each

installment payment. Because t he full actuarial costs reflects the amount necessary to

produce the defined benefit , the member who pays over ten years already will pay more than

the member who pays in a lu mp sum at the time of purchase; the former's final year's

installment payments will support investment return for nine fewer years than any

payments in the year of purchase. Charging interest on deferred payments would have

imposed duplicative exactions up on the member. Nevertheless, the available minutes do not

document how the Board resolved this issue.

17. Given one year 's probation for new hires, the above - described changes

to Section 8.08 would have applied to police officers starting in 2007 and

firefighters starting in 2008. Although Respondent did not enact the first

ordinance with these changes until 2008, the operative language had been

incorporated into the CBA, which adequately captures the new provisions

governing additional accrual rate purchases , so as to permit immediate

implementation. The CBA provides:

For employees hired after 01/01/2007, modify the

Additional Accrual Service (AAS) Buyback percent

the employee pays from 8 .4% to the actual

actuarial cost of the benefit and allow the member

to pay for this in 10 years instead of 5 years.

Effective 11/01/2006, continue the current prior

service credit buyback provision È . [ 37 ]

18. The record contains no minutes for Board meetings prior to 2007 , but,

in minutes of a meeting in early January 2007, t he Board recognized that it

could not provide a member with the purchase price of additional accrual

rate until an actuary calculated the full actuarial cost. 38 This was a good

sta rt .

19. The next month 's Board meeting , though, provided evidence of poor

communications with the actuaries on the crucial issue of Plan provisions. I n

February 2007, an actuary performing an audit of the trust fund complained

that the Plan was unclear in its treatment of the "buyback [of] service," and

he could not reconcile his determination of the present value of benefits with

the same determination by another actuary, who had a different

interpretation of this buyback provision. Due to confused use of

nomenclature, as described above, it is unclear whether this complaint

pertained to additional accrual rate, additional years of service, or both

37 Coyle Ex. 11, Bates Stamp, p. 296.

38 Minutes of Board meeting on Jan. 8, 2007.

optional benefits , but, given the recent change as to the accrual rate, it likely

perta ined to the optional benefit at issue in this case . The response of the

Board's counsel was not to refer the actuary to language in the ordinance or

a collective bargaining agreement, but to a recommended clarification of the

"service buyback" within the S ummary Plan Description, 39 which, as the

name implies, is intended to be merely a synopsis of provisions in the

operative Plan , not a source of Plan provisions . 40

20. I n a Board meeting in April 2007, a Board trustee asked whether a

vested member who terminated service was entitled to a refund of the

member 's contributions as part of a "five year buyback , " which likely

referred to the additional accrual rate purchase, as a member may purchase

five years of that optional benefit, but only four year s of additional years of

service. Construing the question to pertain to the purchase of additional

accrual rate, Board counsel referred to a Draft Summary Plan Description

from October 2006 that provide d clearly that such contributions were

forfeited if a member elected to receive a retirement benefit prior to the

completion of the 16th through 20th years of service, but member

contributions were not forfeited if the member elected to receive a refund of

all contributions instead of a pension benefit. 41 Rather than accept this

substantive guidance or argue for a different policy , a nother Board trustee

39 Minutes of Board meeting on Feb. 26, 2007.

40 Nor may a collective bargaining agreement have been the sole alternative source of

important Plan provisions. On one occasion, the minutes state that an important provision

regarding DROP was addressed only in "a contract" -- presumably, a collective bargaining

agreement -- not in any "ordinance," and Mr. Antonio suggested that Respondent and the

union enter into a "letter of understanding" on the matter. Minutes of Board meeting of

Oct. 15, 2007.

41 Neither the Draft Summary Plan Description nor any written opinion of Board counsel is

part of the record. It seems odd that a vested member would not receive a refund of her

payments, but an unvested member would. See footnote 22. The last sentence of se ction 1.01,

which defines the "accumulated contributions" that are to be returned to a member, states:

"Accumulated contributions shall also include buy - back amounts paid under sections 8.07

and 8.08."

respo nded that Respondent had never adopted this Draft Summary Plan

Description . T he discussion ended, and th e forfeiture issue remained

unresolve d for an e xtended period of time, even though Board counsel had

provided the Board with an unequivocal opinion that a vested member

forfeited her payments, and the implementation of this opinion would not

have impacted -- i.e., increased -- Respondent's contribution, as addressed in

S ection 3.16. The Board's non decision on forfeitures deprived the actuaries

of important information needed to price the full actuarial cost of additional

accrual rate purchased.

21. Poor communications with the actuaries may have resulted from

direct communications that they received, not from Board representatives,

but from representatives of Respondent. At times during the hearing,

P etitioners' witnesses described how well the Plan was administered when

Respondent's employee, Marc Antonio, was available to prepare cost

worksheets for the optional benefits and help new hires complete their

applications . In 2007, Mr. Antonio was an a ssistant C ity m anager; by

August 24, 2009, he was in the Finance Department. But Mr. Antonio was

s till regularly attending Board meetings during the period that the full

actuarial cost was in effect, and neither he nor the Board was able to provide

this information to interested members.

22. The record does not reveal whether Mr. Antonio contributed to

co nfusion among the actuaries. However, another employee of Respondent

did. According to Board minutes i n 2018, Mr. Cowley recalled speaking ten

years earlier to a former h uman r esources d irector who had become active in

Plan business. Mr. Cowley mentioned t o the director the need of the Board

to be able to present full actuarial costs to members seeking to purchase

additional accrual rate, but any deadlines for producing this information

"kept getting pushed back." A Board trustee familiar with the director added

that he had "always deferred sharing the specifics of the buyback procedures

and had trouble conveying the information to the actuary." 42

23. Nevertheless , in early 2007 , the actuaries began to develop a method

to calculate the full actuarial cost of the purchase of additional accrual rate.

M inutes of a Board meeting on August 27, 2007, reveal that , at the previous

month's meeting, the Board had been presented with a draft ordinance,

perhaps of the Plan or at least Section 8.08, as well as "buy - back tables" that

appear to pertain to the purchase of additional accrual rate for a member

who retired at age 52 . A n actuary referred to these tables as appli cable to

members purchasing "addit i onal service , " but t he se comments pertain to the

purchase of additional accrual rate .

24. Mr. Antonio replied that the "dynamic created by eligibility makes

the cost very difficult to È estimate , " 43 perhaps accurately commenting on

the impact of the member 's age at retirement on the full actuarial cost of the

optional benefit. The actuary asked that each member seeking to purchase

additional accrual rate be required to submit an application. At the ti me a

Board trustee, Mr. Cowley asked for the chart as a guide for all members ,

even though the chart would overstate the cost for older members at

retirement. Mr. Antonio seemed to discourage the broader use of a chart

designed for a 52 - year - old retiree , b ut incorrectly explained tha t, while h e

thought the chart would be accurate, the benefit and cost could be difficult to

explain to members -- obviously true if someone tried to explain the cost to a

65 - year - old retiree based on a chart prepared for a 52 - year - old retiree . The

actuary said that she would expand the chart to include older members at

retirement, and the Board agreed that members older than the oldest age

used in the revised chart would apply for an individual calculation of the full

actuarial cos t. M r. Antonio concluded the discussion by saying that he

42 Minutes of Board meeting on Nov. 26, 2018.

43 Minut es of Board meeting on Aug. 27, 2007.

wanted "the chart" to be a fixed cost to members with Respondent bearing

the financial burden of what he termed, "minor variations in experience . " It

seems as though Mr. Antonio was referring to the relatively minor cost of

preparing a chart , rather than to a directive that the full actuarial cost

disregard the age of the retiree -- as before, at the expense of Respondent .

25. The actuaries expended cons iderable time preparing the age - based

"Buy Back Tables , " 44 and the work proved to be much more difficult than

they had initially expected . During a Board meeting i n October 2007, the

actuary, by letter, asked the Board to approve an increase in actuarial fe es

for this service from the quoted $2500 to $3000 to $19,424 for 89 hours of

work already completed. The letter explained that "the unusual nature of

the Plan's buyback provision" had necessitated "much more extensive testing

than is r e quired for other plans." Even though this optional benefit should

have been rolled out for police officers months earlier, t he Board deferred

action on the request. 45

26. These are all of the minutes of Board meetings in 2007 that are in the

record. For all of 2007, the development of the full actuarial cost of

additional accrual rate purchase indisputably remained a work in progress.

Regardless , Respondent contends, in derogation of the Board's minutes, that

an interested member could, in late 2007, obtain the full actuarial cost of

additional accrual rate . In support of this fanciful contention, Respondent

pro duce d four exhibits .

27. Respond ent E xhibits 1 through 3 purport to be worksheets showing

the calculation of the full actuarial cost of additional accrual rate purchased

44 If Mr. Antonio's "fixed cost" reply ended the investigation into charging the full actuarial

cost for the purchase of additional service years, this reference to "Buy Back Tables" is to the

purchase of additional accrual rate. Otherwise, the tables might pertain to the purchase of

additional accrual rate and additional years of service.

45 Minutes of Board meeting on Oct. 15, 2007.

by three police officers: John Cameron, 46 Marco McAdam, 47 and Victor

Lynch , 48 respectively. In each case, the worksheet indicate s that the member

had completed probation less than 90 days earlier . The Cameron and

McAdam worksheets depict four years' additional service and one year's

additional accrual rate, and the Lynch worksheet depicts five years'

additional accrual rate. There is no evidence abo ut the authorship of these

worksheets or, for the Cameron and McAdam worksheets, that the members

were able to purchase the service and rate credit at the prices quoted.

Respondent Exhibits 1 and 2 are thus entitled to no weight.

28. By contrast, the Lynch wo rksheet is supported by Respondent

Exhibit 4, which is documentation of actual payroll deductions . Both

documents are consistent, showing a total cost of $55,840.50 , 260 payroll

deductions of $214.77 each , and a start date of October 15, 2007. However,

Respondent Exhibits 3 and 4 do not support Respondent's claim that, in the

fall of 2007, members were able to obtain the full actuarial cost of additional

accrual rate purchases, and, if they failed to do so, it was due to a lack of

interest in th is optional benefit . Given the timing of the Lynch worksheet

and the request of the actuary for Board approval of fees over six times

higher than the actuary had quoted for working up the full actuarial cost,

the Lynch worksheet likely was a prototype that the actuary prepared in

trying to develop a method for calculating full actuarial costs. Noticeably

missing from the record is any indication that the calculations for the

prototype Lynch worksheet proved reliable or the workup could be used for

other mem bers . J udging from the absence of Board - approved purchases the

46 Resp . Ex . 1.

47 Res p. Ex . 2.

48 Resp . Ex . 3.

following year, either the Lynch calculations were unreliable or at least

premature.

29. M inutes of a Board meeting years later, in November 2018 , address

the Lynch worksheet. In this meeting, Mr. Dodea told Petitioner Roccisano

that Mr. Dodea had found one early calculation of full actuarial cost -- a

calculation done by actuary , Chad Little , in 2008 for Victor Lynch , which the

Board had approved. It seems that Mr. Dodea was off by one year in his

d escription of Respondent Exhibit 3. Aptly, Petitioner Roccisano replied that

all that this proved is that Mr. Lynch had found a "different channel" by

which to obtain a calculation of the full actuarial cost of his purchase of

additional accrual rate. 49

30. T he minutes of the Board meeting in January 2008 revealed progress

in the preparation of an age chart for determining the full actuarial cost of

additional accrual rate for a span of ages at retirement . The Board agreed

that any member over the ages shown on the chart should receive an

individual calculation. 50

31. The next Board meeting for which minutes are available took place i n

August 2008 , and they confirm that, besides Mr. Lynch, no one had obtained

the full actuarial cost of addition al accrual rate, so as to be able to make an

informed purchase decision. An actuary stated that he would charge $600 for

each such "buyback" calculation. Told that members had been waiting "for

over a year" for an estimate of the full actuarial cost of a p urchase of

additional accrual rate, the Board agreed to send the information for these

members to the actua ry for calculations of their purchase prices. The motion

49 These minutes suggest that, contrary to Mr. Dodea's testimony (Tr., pp. 598 , 601), he did

not discover the Lynch worksheet on the day prior to the last day of the hearing, but, at best,

he "rediscovered" it at that time. Given the treatment of the Lynch worksheet, Respondent's

failure to disclose the existence of this exhibit in a more timely fashion is immaterial.

50 Minutes of Board meeting on Jan. 14, 2008.

that passed specifically approved sending the information for members who

"are past their on e year anniversary since 9/30/06 through 9/30/08." 51

32. In September 2008, a Board trustee raised the issue of interest on

installment payments for "buyback purchases" and stated that the

installment payments must not impact the trust assets. "Buyback

purchas es" may refer to the purchase of additional accrual rate, additional

years of service, or both. Interest on the purchase of additional years of

service makes sense, because 8.4% per year purchased does not seem to

reflect the time value of money. Again, t he full actuarial cost of additional

accrual rate purchased should reflect the time value of money, although

nothing in the record clearly confirms that actuaries calculated a

considerably higher full actuarial cost for installment payments than for a

lump sum. 52 This issue should have been resolved at this time -- ideally based

on the approach of the actuary calculating the full actuarial cost, but

practically with a decision either to charge interest or not to charge

interest. Instead, as detailed below, thi s issue lingered, unresolved, until

February 2009.

33. The same Board trustee raised the forfeiture issue by suggesting that

members be allowed to obtain a refund of their payments toward additional

accrual rate, presumably if they were unable to qualify for t he rate due to

insufficient years of service. The minutes state: "The City does not agree,

51 Minutes of Board meeting on Aug. 11, 2008.

52 Nine years later, in 2017, an actuarial letter prepared for Petitioner Manny Gonzalez

alludes to this issue. Coyle Ex. 1, Ba tes Stamp, p. 5. The letter quotes nearly $80,000 as the

cost of five years' additional accrual rate for retirement benefits commencing 11 years later.

Given that the full actuarial cost likely approximated Mr. Gonzalez's annual salary, the

letter unrealis tically "recommend[s] È payment È be made as a lump sum within six

months of the request." This seems like wishful thinking by the actuary, but was it to spare

the actuary the task of recalculating the full actuarial cost if paid over ten years, running a

simple installment payment plan with interest, running a simple installment payment plan

without interest (and ignoring the time value of money), or avoiding the interest issue with

Respondent?

until they can resolve a separate issue related to interest on buyback

payments over time."

34. This quote marks the end of a documented , evidently brief discussion

a bo ut interest and forfeitures -- over one - and - one - half years after the Board

initially referred the matter to its actuaries . The Board does not explicitly

defer to Respondent's objection to refunds and claim that it must resolve the

interest issue , b ut, characteristically, the Board took no action. At this point,

both of these issues were over ripe for resolution , 53 and the Board's failure to

proceed appears at least partly attributable to Respondent's refusal to

agree -- even though , two years earlier, R espondent had completed its

relevant work when it incorporated the change , in implementable form, in

t he CBA .

35. The next Board meeting for which minutes are available took place in

January 2009. The actuary discussed the calculations of the full actuarial

cost of additional accrual rate purchases -- work that was still "in the

process." Someone asked whether a vested member would receive a refund of

the purchase price if the member 's services termi nated, presumably prior to

the 16th year of service. The Board attorney said that the member would

receive a refund, but Mr. Antonio disagreed, adding that Respondent was

negotiat ing this issue with the unions. A Board trustee raised the issue of

interest, and Mr. Antonio replied that Respondent was negotiating this with

the union. No one on the Board displayed the initiative to resolve the issues

at this time . A Board trustee mentioned that two persons were "currently

buying back time" and were not paying interest. Once again, a lack of clarity

with nomenclature precludes a finding that Mr. Lynch had been joined by

53 It seems that these issues should have arisen and been res olved under the prior Plan

provisions authorizing the purchase of either optional benefit at 8.4% of compensation per

year purchased, even though the maximum repayment period for both options was only five

years. It is unclear if the provision as to the 16 th through 20th years of service previously

applied to the purchase of additional accrual rate, but, if not, the forfeiture issue would have

arisen at least when an unvested member terminated service.

another lucky member ; again , a member "buys back time" when purchasing

additional years of service and buys rate when purchasing additional accr ual

rate. Rather than resolve the issue, the Board agreed on an impractical

temporary fix : to provide members with two purchase prices -- one with

interest and one without interest. At the end of the minutes, a Board trustee

noted that new employees did not know the cost of additional accrual rate ,

and the "Board must first retain an actuary" 54 -- precisely what the Board had

done two year s earlier.

36. At the Board meeting on the following month, the same Board trustee

complained about the "buyback" calculations that had recently been

completed for 14 members . Because Respondent had failed to indicate

whether these installment payments would be charged interest, the

calculations were done in the alternative, and the dif ference between each

pair of calculations was "huge , " thus demonstrating the impracticality of this

"solution." However, t his discussion concluded with an observation that

"[s]ome members have already started buying back time." 55

37. At a meeting in August 2009 , the Board deferred the approval of

"buyback statements" that had been prepared by an actuary. 56 At the Board

meeting the following month, the Board discussed a request of a member

currently "buying back time." Without terminating employment, the member

wa nted to stop the purchase and obtain a refund of all payments previously

made. The member added that he was under the old purchase price of 8.4%,

suggesting that he was purchasing additional accrual rate, not years of

service. The Board deferred action, bu t relieved the member from the

responsibility of making further payments. 57

54 Minutes of Board meeting on Jan. 5, 2008.

55 Minutes of Board meeting on Feb. 23, 2009.

56 Minutes of Board meeting on Aug. 24, 2009.

57 Minutes of Board meeting on Sept. 29, 2009.

38. The next Board meeting for which minutes are availab le took place in

January 2010. Board counsel informed the Board that the actuary had

increased the cost of a calculation of additional accrual rate purchase to

$350, but all other calculations would remain $100 per calculation. 58 It

seems, finally, that the Board had sorted out the remaining problems that

had prevented the presentation of the full actuarial cost to a member

purc hasing additional accrual rate.

39. By mid 2010, another issue had arisen, though . In July 2010, the

Board considered the timeliness of a request to purchase an optional benefit

r elative to the expiration of probation. As noted above, a request for either

opti onal benefit must be filed within 90 days of the completion of probation.

An employee of the Board or Respondent advised the Board that members

had been told to wait to purchase additional years of service until

Respondent entered into a new collective bar gaining agreement with the

unions and, now that the parties had concluded a new agreement, 59 the

members wanted to proceed with their purchases of additional years of

service. The Board agreed that it would allow these purchases to take place,

but would nee d a list of these members . 60

40. In August 2010, the Board was informed that a vested member had

complained to the Florida Division of Retirement that, upon termination of

employment, he had not received a refund of his payments for additional

accrual rate. Th e Board declined to change its earlier decision, which

evidently was not to refund the payments. In response to the business taken

up at the July 2010 meeting, Mr. Dodea distributed a list of members who

58 Minutes of Board meeting on Jan. 11, 2010.

59 It is possible that a new collective bargaining agreement had resolved the issues of

forfeitability of payments for additional accrual rate by a vested member and whether the

installment payments bore interest. But the record contains no collective bargai ning

agreements subsequent to the CBA.

60 Minutes of Board meeting on July 12, 2010.

wanted to purchase additional years of service, even though they were past

90 days from the end of their probation. Board counsel advised the Board

that this process was being undertaken because, when the probation had

ended for these members , a "final contract" was not in place. 61

41. In any event, in October 2010, Board counsel presented lists of

members who wanted to purchase additional accrual rate or additional years

of service, but who were past 90 days from the end of their probation. The

minutes reflect that Respondent had questi oned by what authority the

Board could "impasse [bypass?] the Ordi n ance," which probably means

disregard the 90 - day limitation periods, and Board counsel replied that

Respondent would not have to amend the ordinance to authorize this

extension of these two 90 - day deadlines . Apparently mollified, Respondent

insisted that the Board communicate a firm deadline to members by which

they would have to elect one or both options.

42. In other related business, the actuar ial firm reported that it had

completed its " first buyback calculation. " But the actuary asked if the

calculation was based on the member 's base pay or pay with benefits.

Suggestive of a program that was rolling out, finally, the Board told the

actuary to use base pay -- and not to charge interest on t he installment

payments. 62

43. In April 2015, Board counsel stated that letters that the Board had

sent to eligible members "a couple of years ago , " advising them of the

61 Minutes of Board meeting on Aug. 23, 2010.

Regardless of the status of any effort to document a collective bargaining agreement, the

law unsurprisingly requires tha t, at all times, the provisions of a pension plan of the type at

issue be documented, not open - ended. Section 175.261(2)(a)1. requires an annual filing with

the Division of Retirement of "each and every instrument constituting or evidencing the

plan." Chap ter 175 applies to firefighters, and this requirement applies to "local law" plans,

not "chapter" plans, which merely incorporate the relevant provisions of chapter 175. See

§ 175.032(4) , (14) (definitions of "chapter plan" and "local law plan"). Similar p rovisions

govern police pensions. See § 185.221(2)(a)1.

62 Minutes of Board meeting on Oct. 11, 2010.

reopening of the window to purchase optional credit, had limited the

reopening to the purc hase of additional years of service. As noted above, four

and one - half years earlier, the Board had approved such letters to members

interested in purchasing either option. It seems that Board staff or the

pension services representative had taken two year s to mail or email these

letters and had mistakenly dropped the option for the purchase of additional

accrual rate . Board counsel asked if the Board wished to reopen the window

for members interest ed in purchasing either option, and the Board agreed to

do so. 63 In May 2015, the Board clarified that , when the purchase window

w as reopened, the purchase price for additional years of service would be

based on the member 's current income, not the member 's income in 2010 . 64

44. In its August 2015 meeting, Board staff i nformed the Board that

buyback applications for the purchase of additional accrual rate and

additional years of service had been emailed to all members with a deadline

of September 18, 2015. Board staff advised that it would forward timely filed

applicatio ns to the actuary for the calculation of the purchase price and then

forward the price to the member , who would decide whether to complete the

purchase. 65 Minutes of the next month's Board meeting indicate that this

process was continuing. 66

45. In its August 2018 meeting, the Board was addressed by Petitioner

Roccisano, who complained that the purchase price that he had been given

for additional accrual time was based on current conditions, not the

conditions when he first had the right to purcha se additional accrual rate.

By now a former Board trustee , Mr. Cowley confirmed that "the City" never

63 Minutes of Board meeting on Apr. 6, 2015.

64 Minutes of Board meeting on May 18, 2015.

65 Minutes of Board meeting on Aug. 24, 2015.

66 Minutes of Board meeting on Sept. 30, 2015.

decided on the cost method, which "prohibited" a member from completing a

timely purchase of additional accrual rate. 67

46. Its own minutes reveal a Board that , sluggish, reactive, and aimless,

failed to discharge its responsibility to implement the revision in the Plan

requiring that members pay the full actuarial cost of additional accrual rate

purchased. There were suggestions during the hearing that perhaps

problems with certain actuaries or certain plan services representatives

impeded this effort, but these advisors, like Board counsel, served the Board,

and, if they failed to discharge their duties, it was the Board's job to replace

them promptly with prof essionals who would timely do their jobs. From the

minutes, the more prominent problem involving a third party was

Respondent -- specifically, the Board's reliance on Respondent 's approval for

administrative decisions that are assigned to the Board, not the Plan's

sponsor. Respondent discharged its responsibilities with the documentation

in the CBA of the changes to the purchase of additional accrual rate , as later

enacted in Section 8.08 , b ut the Board failed to discharge its responsibilities

in the timely implementation of these changes -- for years, not weeks or

months. For these reasons, the Board prohibited members from purchasing

additional accrual rate at all material times.

47. On the other hand , no P etitioner ever submitted to the Board a

re quest to purchase additional accrual rate in writing or at a Board meeting.

67 Minutes of Board meeting on Aug. 13, 2018. These comments get to the crux of the dispute

from the perspective of P etitioners. They do not merely seek another reopening of the

window to purchase additional acc rual rate; now that this purchase is priced at full actuarial

cost, Respondent may not even oppose such a remedy. P etitioners want to purchase

additional accrual rate at the full actuarial cost, but as it would have been calculated when

each petitioner fir st became eligible to purchase additional accrual rate -- say, 12 or 13 years

ago, not now. This administrative proceeding cannot reach such an issue . T he Board did not

contract with DOAH to address this issue and such a remedy likely represents damages,

whi ch are reserved for the judicial branch, not the mere application of basic principles of

actuarial science, where investment returns, like time, wait for n one of us , even the

ever - youthful Petitioner Roccisano.

48. The facts pertaining to each P etitioner are very similar. While still o n

probation, each Petitioner learned from more senior police officers or

firefighters about the optional ben efit for the purchase of additional accrual

rate. If a police officer, the Petitioner co ntacted Mr. Cowley; if a firefighter,

the Petitioner contacted Jim Bunce. Mr. Cowley was a Board trustee at all

material times until at least early 2010. Mr. Bunce became a Board trustee

by September 29, 2009, and remains on the Board; from 2007 until 2020,

Mr. Bunce was the district president of the firefighters' union.

49. Prior to the expiration of 90 days fo llowing the end of probation, each

P etitioner contacted Mr. Cowley or Mr. Bunce, depending on whether

Petitioner was a police officer or firefighter, and asked about purchasing

additional accrual rate. In each case, Mr. Cowley or Mr. B unce told the

Petitio ner that the optional benefit was not available due to problems in

calculating the cost of the benefit and the absence of a procedure for

applying for the benefit ; each Petitioner was advised -- or directed -- to be

patient. Sometimes, a Petitioner contacted a n employee of Respondent, but

was told the same thing.

50. Petitioners completed their probations from March 12, 2008 , in the

case of Petitioner Pan , through June 8, 2010 , in the case of Petitioner Bruce .

At least 12 other members, who completed their probations from 2008 to

2012, are identically situated to Petitioners.

C ONCLUSIONS OF L AW

51. Pursuant to the contract between DOAH and the Board, DOAH has

jurisdiction. §§ 120.569 , 120.57(1) , and 120.65(6) .

52. P ursuant to Appendix C of the Settlement Agreement, each P etitioner

must prove the material allegations by clear and convincing evidence. Clear

and convincing evidence is evidence that is "'precise, explicit, lacking in

confusion, and of such weight that it produces a firm belief or conviction,

without hesitation, about the matter in issue.'" Robles - Martinez v. Diaz,

Reus & Targ, LLP , 88 So. 3d 177, 179 n.3 (Fla. 3d DCA 2011) (citing Fla.

Std. Jury Instr. (Civ . ) 405.4).

53. As detailed above, Petitioners proved that the Board 's ineptitude

prohibited them from requesting the purchase of additional accrual rate . It

is the exclusive responsibility of the Board to administer the Plan.

§§ 175.071(5) (local firefighters' plans) , 185.06(4) (local police officers' plans) .

Petitioners were prohibited from purchasing additional accrual rate because

t he Board failed to discharge this crucial responsibility.

54. However, no P etitioner proved that he requested such a purchase in

writing to the Board or orally at a Board meeting . This issue is derived

directly from the Settlement Agreement and may not be revised, even to

state accurately an issue of equitable estoppel. 68 If construed as requiring an

unconditional choice by a petitioner to purchase -- cost unknown -- additional

accrual rate, t his issue has raised an insurmountable barrier , because a

member cannot make an informed decision without knowing whether the

benefit would cost $15,000 or $80,000 . If construed as requiring only an

expression of interest by a P etitioner, this issue exploits that status of each

of these P etitioners as a new hire within a profession where lives depend on

compliance with the chain of command, and the last thing that such a person

would want to do is appear as a troublemaker to a high - ranking member of

his department sitting on the Board and directing him to stand by .

R ECOMMENDATION

It is

R ECOMMENDED that the Board enter a final order determining that

Petitioners have failed to prove that they timely submitted a request to

68 See footnote 2 .

purchase additional accrual rate in writing to the Board or orally at a Board

meeting.

D ONE A ND E NTERED this 1 1 th day of February , 202 1 , in Tallahassee, Leon

County, Florida.

S

R OBERT E. M EALE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 1 th day of February , 202 1 .

C OPIES F URNISHED :

Michael A llen Braverman, Esquire Luis Acosta

Michael Braverman, P.A. (Address of Record)

2650 West State Road 84 , Suite 104

Fort Lauderdale, Florida 33312 Janira Camero

(Address of Record)

Brendan M ichael Coyle, Esquire

Law Office of Brendan M. Coyle, P.A. Miguel Cordova

407 Lincoln Road , Suite 8 - E (Address of Record)

Miami Beach, Florida 33139

John Faul

Teri Guttman Valdes, Esquire (Address of Record)

Teri Guttman Valdes LLC

1501 Venera Avenue , Suite 300 Philip Rothman

Miami, Florida 33146 (Address of Record)

Brett J. Schneider, Esquire Yvette de la Torre

Weiss Serota Helfman Cole & Bierman , P.L. (Address of Record)

1200 North Federal Highway , Suite 312

Boca Raton, Florida 33432 Wissem Mejdoub

(Address of Record)

Garth Bonner

(Address of Record)

Gabriel Castillo Pietro G. Roccisano

(Address of Record) (Address of Record)

Gary di Lella Anthony Gonzalez

(Address of Record) (Address of Record)

Robert David Klausner, Esquire Stephen Sanfilippo

Klausner & Kaufman, P.A. (Address of Record)

7080 Northwest 4th Street

Plantation, Florida 33317 Eric Bruce

(Address of Record)

Michelle Rodriguez , Plan Administrator

City of Hallandale Beach Police OfficersÔ David DeCosta

and FirefightersÔ Pension Plan (Address of Record)

Foster and Foster

Plan Administration Division

2503 Del Prado Boulevard South, Suite 502

Cape Coral, Florida 33904

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.