Escambia County v. Pam Childers trial ends early. Judge ask for written arguments

The trial over Escambia County's controversial local retirement plan for county commissioners ended early Tuesday, but it will be at least another two weeks before the judge will reach a decision in the case.

Attorneys for Escambia County rested their case Tuesday afternoon in their lawsuit against Escambia County Clerk and Comptroller Pam Childers.

Childers' attorneys immediately moved to dismiss on the grounds the county had failed to prove Childers was required to issue the payments and that the testimony given by the county's witnesses went to Childers' argument that the local retirement plan is illegal under state law.

Day one: Escambia County v. Pam Childers trial questions 'purpose' of lucrative retirement plan

Okaloosa Circuit Court Judge William Stone ultimately denied the motion after recessing the court for nearly half an hour to review case law on the issue, which was followed by a chaotic back and forth between the attorneys over the nature of the trial itself. Stone ultimately decided to allow the parties to submit written closing arguments in the case.

The lawsuit arose after Childers raised concerns over the retirement plan in June 2021 and began reducing contributions in July. In January 2022, she completely stopped payments to the program.

Escambia County sued Childers to force her to authorize the payments, arguing the retirement program was indeed authorized under a Florida law passed in the late 1990s and that Childers lacked the authority to block the payments. The case has proceeded slowly over the last two years before winding up in a trial to establish the facts of the case on Monday.

County Attorney Alison Rogers testifies

Most of the second day of the trial was taken up with the testimony of Escambia County Attorney Alison Rogers.

Rogers testified that in the early days of the controversy, she had meetings with Childers to try to "de-escalate" the situation and that Childers' biggest concern with the plan at the beginning was the high rates being paid to the commissioners.

Childers' attorney, Ed Fleming, asked Rogers about a key law that the county contends makes the program legal. During the testimony, Rogers agreed that it was a single sentence of the law that applied to the county's local plan.

"Municipalities and counties are authorized to invest funds, purchase annuities, or provide local supplemental retirement programs for purposes of providing annuities for city or county personnel," the key sentence of the law, Florida Statute 121.182, reads.

Fleming also asked Rogers a series of questions about where the line was in the law on compensation versus a benefit, as the Florida Constitution says a commissioner's salary is fixed by law. Rogers said she viewed the county's plan as a "benefit" and not compensation.

Fleming asked if it would be illegal for the county to buy the commissioners private Cadillac Escalades, and Rogers agreed it "would be potentially problematic."

Fleming then asked if she would consider it compensation if the county deposited $100,000 into a commissioner's retirement account that would immediately vest to them.

Rogers said she believed that retirement contributions would be considered a benefit.

On cross-examination by the county's attorney, William Cash, with the Levin Papantonio Rafferty law firm, Cash made clear that Rogers was not speaking at the county's "corporate representative" but testifying as to her personal impression.

The local plan allows elected officials to take the full contribution that would otherwise go to the Florida Retirement System and put it into a 401(a) retirement account. With FRS, the county is legally required to fund a share of the county's unfunded liability for each county employee enrolled in FRS. When the county pays the same for both plans, the end result is the local plan ends up being much more lucrative than the FRS plan.

For 2024, Escambia County commissioners in FRS will receive $16,095 in their retirement accounts. That number includes a mandatory 3% contribution out of their paycheck. While commissioners in the local plan would receive $57,800 a year without any mandatory contribution from their paycheck.

Motion to dismiss

Following Rogers's testimony, Cash said the county rested its case. Fleming immediately moved to dismiss the case and gave a nearly hour-long presentation, with PowerPoint slides, on why the county had failed to prove its case.

Fleming said that during Commissioner Steven Barry's testimony, Barry, who Fleming noted is a certified financial planner, answered "yes" to a question on whether contributions to the local plan are considered supplemental income. Florida law strictly prohibits supplemental income for local elected officials.

"He was being frank on the issue," Fleming said. "It was against his interest. He may not understood what he was talking about, or he may have just been very candid on the issue."

Fleming said on that one issue alone, the local plan could be ruled illegal.

Fleming argued the plan also fails to meet the requirement to provide annuities, especially as it was revealed during trial that MissionSquare, the provider formerly known as ICMA that provides the plan, had notified the county it has stopped offering the annuity purchase option on its plans.

"They don't even have that now," Fleming said.

Fleming argued that the Florida Constitution mandates the county commissioners' compensation is set by statewide law to avoid situations like the one occurring in Escambia County and pointed to a principle in constitutional law that prohibits governments from doing things indirectly that they cannot do directly.

"The county couldn't have given these commissioners a $57,000 pay raise," Fleming said. "They couldn't have done that. But if you call it 'deferred compensation' and give it to them in a retirement account they immediately own and can do what they wish with it, is that not doing indirectly what the (state) constitution does not allow you to do directly? We would respectfully submit that's exactly what it is."

Trial or evidenctary hearing?

Following Fleming's arguments, Stone said he was inclined to allow Cash until the next morning to present a rebuttal as he was likely unaware such a detailed motion to dismiss was coming.

"That's not a criticism," Stone said. "You wouldn't be (aware) because that's the way trials work."

Cash asked to be able to respond on Wednesday morning but then went further, objecting to the idea that the proceeding was a full trial.

While all of the most recent court documents referred to the proceeding as a trial, Cash pointed to a document from last year that said an "evidentiary hearing" would be held to establish the facts for the case that are in dispute and that the parties would be allowed to make their full legal arguments later in writing.

"That's a reason we didn't cross-examine our witnesses with legislative history," Cash said. "That's law stuff. That's the reason I didn't ask her legal opinion on behalf of the county. We kept our presentations tethered to the factual evidence that was actually in dispute."

Stone asked Fleming how many witnesses he would call as part of his case if the trial continued. Fleming said he would only call two witnesses, a representative of MissionSquare and Childers.

Fleming also pointed out that in the pre-trial conference, he made clear they considered the proceeding a trial, that a notice of the case being ready for trial was filed, and the court issued an order for trial.

"This is the final resolution," Fleming said. "There is nothing that is outstanding. After the court makes a ruling on this issue, there is nothing more to do in this case. If any further effort's done, it will be in Tallahassee."

Stone recessed the court for nearly 30 minutes before returning, saying he would take the motion under advisement and the county could respond in the morning. However when it was Childers' time to present her case, and in a surprise move, Fleming said Childers was resting her case.

Fleming then said that he suggested the court take his motion to dismiss as his closing argument and allow the county to present its closing argument in court on Wednesday morning. Fleming appeared to be taking positions to give Stone an opportunity to make his final ruling from the bench, but Stone wasn't having it.

Stone and Fleming went back and forth about what was required procedurally, before Cash interjected that if the court took Fleming's statement to be a withdrawal of the motion to dismiss – or if the court denied the motion – the county could move on to submit the closing arguments in writing, which he'd view as a good outcome.

Stone officially denied Childers' motion to dismiss and said the parties should submit their closing arguments in writing.

"I think (this case) is the perfect definition of convoluted legal arguments regarding the interlocking nature of all the statutes involved," Stone said.

The judge said both sides will have until March 6 to present "blind" written closing arguments, meaning they won't be able to read the other's filing until both sides have been submitted to the court. The two sides will have another week to file "blind" responses. At that point, the legal arguments in the case will be over, and the judge will make a final decision.

Stone also predicted that his ultimate ruling would likely not be the final word in the case.

"I'm not being curmudgeonly," Stone said. "I just anticipate it doesn't matter how I rule unless I find a magic wand in the briefcase on my way home; there will be an appeal."

This article originally appeared on Pensacola News Journal: Escambia County v. Pam Childers trial ends early without verdict