Ord 28-04ORDINANCE NO. 28-04
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELILAY
BEACH, FLORIDA, AMENDING SECTION 35.105, "ADMINISTRATION BY
RETIREMENT COMMITTEE BY AMENDING SECTION 35.105(A)(1), TO
PROVIDE FOR THE NAMING OF THE POSITION OF FINANCE
DIRECTOR, AS A MEMBER OF THE BOARD AND PROVIDING THAT
THE FOUR OTHER MEMBERS MAY BE CITY OFFICIALS OR
EMPLOYEES AND SHALL BE APPOINTED BY THE CITY COMMISSION,
PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND
AN EFFECTIVE DATE.
WHEREAS, the Attorney General in Opinion 2004-05, addresses the issue of ex officio
membership on boards; and,
WHEREAS, this amendment is intended to conform the City's ordinance to the Attorney
General's Opinion.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH AS FOLLOWS:
Section 1. That Section 35.105 of the Code of Ordinances of the City of Delray Beach is
hereby amended by amending Section 35.105(A)(1) to read as follows:
(A) [Retirement Committee Established]
(1) The plan will be administered by the Retixement Committee (herein referred
to as the Committee) appointed by the City Commission, consisting of a Chairperson and four (4)
additional members. One member shall be the Finance Director of the City.. Each member may,
but need not, be an official or employee of the City, and each member shall be appointed by the
City Commission to serve until a successor is appointed in like manner.
Section 2. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
Section 3. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shall not affect the validity of the remainder hereof as a whole or part thereof other than
the part declared to be invalid.
Section 4. That this ordinance shall become effective mediately upon its passage on
second and final reading.
PASS,~N~D ,ADOPTED in regular session on second and final reading on this the
. . day of'"'~////~ ,2004
City Clerk
First Reading~'~
Second Reading~
2 ORD. NO. 28-04
MEMORANDUM
TO:
FROM:
SUBJECT:
MAYOR AND CITY COMMISSIONERS
CITY MANAGER~
AGENDA ITEM ~, {D°-. - REGULAR MEETING OF MAY 18. 2004
QRDINANI~E NO, 28-04 (.AMENDING CHAPTER 35. "EMPLOYEES
PQLICIE$ AND BENEFITS", SELTrION 35.105. "ADMINISTRATION BY
RETIREMENT COMMITTEE")
DATE: MAY 14, 2004
This ordinance is before Commission for second reading and public heating to amend Chapter 35,
"Employee Policies and Benefits", Section 35.105, "Administration by Retirement Committee", by
mending Section 35.105(A)(1), to provide for the naming of the pofflfion of Finance Director as a
member of the board.
At the first reading May 4, 2004, the Commission passed Ordinance No. 28-04.
Recommend approval of Ordinance No. 28-04 on second and final reading.
S:\City Clerk\agenda memo. Ord 28.04. General Employees Rem~ment PIm 0S.I 8.04
rlTY OF nELRI:IY BEI:IrH
CITY ATTORNEY'S OFFICE
200 NW 1st AVENUE · DELRAY BEACH, FLORIDA 33444
TELEPHONE 561/243-7090 · FACSIMILE 561/278-4755
Wdter's Direct Line: 561/243-7091
DELRAY BEACH
DATE:
TO:
MEMORANDUM
April 23, 2004
City Commission
David Harden, City Manager
FROM: Susan A. Ruby, City Attorney
SUBJECT: Ordinance No. 28-04- Amending the General Employees
Retirement Plan
This ordinance seeks to address the matter raised in Attorney General Opinion
2004-05, wherein membership on City boards by a person deemed to be a public
officer is allowed, if the position is specified in the ordinance as being required as
par~ of the membership.
Please place this ordinance on the May 4, 2004 agenda for first reading.
Attachment
Cc:
Barbara Garito, City Clerk
Jeff Keating, Chairperson, General Employee Pension Board
Joe Safford, Director of Finance
Sherry Muehlberg, Administrative Assistant
ORDINANCE NO. 28-04
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF DELRAY
BEACH, FLORIDA, AMENDING SECTION 35.105, "ADMINISTRATION BY
RETIREMENT COMMITI'EE BY AMENDING SECTION 35.105(A)(1), TO
PROVIDE FOR THE NAMING OF THE POSITION OF FINANCE
DIRECTOR, AS A MEMBER OF THE BOARD AND PROVIDING THAT
THE FOUR OTHER MEMBERS MAY BE CITY OFFICIALS OR
EMPLOYEES AND SHALL BE APPOINTED BY THE CITY COMMISSION,
PROVIDING A GENERAL REPEALER CLAUSE, A SAVING CLAUSE, AND
AN EFFECTIVE DATE.
WHEREAS, the Attorney General in Ot~mion 2004-05, addresses the issue of ex officio
membership on boards; and,
WHEREAS, this amendment is intended to conform the City's ordinance to the Attorney
General's Opinion.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF DELRAY BEACH AS FOLLOWS:
Section 1. That Section 35.105 of the Code of Ordinances of the City of Delray Beach is
hereby amended by amending Section 35.105(A)(1) to read as follows:
(A) [Retirement Committee Established]
(1) The plan w'dl be administered by the Retirement Committee (herein referred
to as the Committee) appointed by the City Commission, consisting of a Chairperson and four (4)
additional members. One member shall be the Finance Director of the City.. Each member may,
but need not, be an offic'ml or employee of the City, and each member shall be appointed by the
City Commission to serve until a successor is appcfmted in like manner.
Section 2. That all ordinances or parts of ordinances in conflict herewith be, and the same
are hereby repealed.
Section 3. That should any section or provision of this ordinance or any portion thereof,
any paragraph, sentence, or word be declared by a court of competent jurisdiction to be invalid, such
decision shah not affect the validity of the remainder hereof as a whole or part thereof other than
the part declared to be invalid.
Section 4. That this ordinance shall become effective mediately upon its passage on
second and final reading.
the
PASSED AND ADOPTED in regu]at session on second and final reading on this
day of ,2004
A'ITEST:
MAYOR
City Clerk
First Reading
Second Reading
2 ORD. NO. 28-04
ATTORNEYS AT LAW
Helping Shape
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W. O. Bmcmn~a~
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E~ D~
Jo~ J. ~
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Jac~onv/Be
9428 Baymeadows Road
Suite 62~
Jack~onville~ Florida 322~6
(904) 73%2020
Fait: (904) 9373221
Post Office Box 10788 (32302)
125 South Gadsden Street
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Fax: (~1)
REPLY TO:
TO:
Susan Ruby, City Attorney
City of Delray Beach
FROM:
Jim Linn and Glean Thomas
DATE: April 9, 2004
RE: Pension Board Members: Dual Office Holding
A recent Florida Attorney General Opinion (2004-05) addresses the issue of
whether a city council member may serve on one or more of the city pension
boards and whether members of one pension board may simultaneously serve
on another pension board. This memo considers the application of that opinion
to Dekay Beach Pension Plans. The City's plans provide for pension board
membership as follows:
City of Delray Beach General Employees, Retirement Plan
The plan will be admlni~tered by the Retirement Committee (herein referred to
as the Committee) appointed by the City Commission, consisting of a
Chairperson and four (4) additional members. Each member may, but need
not, be an official or employee of the City, and each member shall be
appointed by the City Commission to serve until a successor is appointed in
like manner. Section 35.105, Delray Beach City Code.
The City of Delray Beach Police and Firefighters, Retirement Plan
The general administration and responsibility for the proper operation of the
retirement system and for making effective the provisions of this subchapter
are vested ' . ·
tn a Board of Trustees consisting of nine (9) persons as follows:
(1) Thc Mayor;
(2) Two (2) public members to be appointed by City Commission as
hereinafter provided;
(3) The Fire Chief or, in the event of the Fire Chiefs termination of
participation in the system, a fircfighter designated by the Fire Ch/el;
Memorandum
April 9, 2003
Page 2
(4) The Police Chief or, in the event of the Police Chiefs termination of participation in the
system, a police officer designated by the Police Chief;
(5) Two (2) members of the Fire Department to be elected as hereinaf/er provided;
(6) Two (2) members of the Police Department to be elected as hereinafter provided.
Section 33.65, Delray Beach Code
Analysis
The Florida Constitution generally prohibits a person from serving on more than one state,
county, or municipal office simuitaneously. Specifically, Article II, Section 5(a), Florida
Constitution states: "No person shall hold at the same time more than one office under the
government of the state and the counties and municipalities therein, except...any officer may be
a member of a...statutory body having only advisory powers." In AGO 2004-5, the Attorney
General points out that underlying this provision is the concern that a conflict of interest will
arise by dual office-holding when the duties of the office are inconsistent. However, the opinion
concludes that when additional duties are assigned to a constitutional officer and there is no
inconsistency between duties, the prohibition on dual office-holding would not preclude such an
assignment.
The First Dis~ct Court of Appeal held that there is nothing inherently inconsistent or
incompatible in service by elected or appointed city officials as representatives on the city's
pension boards s o a s t o s ay t hat i t presumptively violates t he prohibition against d ual o ffiee-
holding in Article II, Section S(a). City of Orlando v. Deoartment of Insurance 528 So. 2d 468
(Fla. 1St DCA 1988).
In the past, the Attorney General has stated that a board of county commissioners may by
ordinance designate the members of the county commission to serve as members of a board of
adjuslment when the additional duties are imposed on the commissioners by virtue of their
membership on the county commission. AGO 94-66. The AG has also concluded that service
by a mayor and other city council members on the board of trustees of a police and fireflghtar
pension board did not violate the constitutional prohibition against dual office-holding where the
city code required such service. AGO 94-98.
According to AGO 2004-5, the express imposition of an additional or ex officio duty on a city
official is the central factor in determining whether there is constitutionally prohibited dual
office-holding. The city code at issue in AGO 2004-5 states that members of the board of
trustees of the general employees' retirement system "shall be permitted to serve on any other
board duly formed by the city." The opinion concludes that this language is insufficient to
impose on members of the general employees pension board the ex officio duties of serving on
another board that constitutes an office for purposes of dual office-holding. Similarly, because
nothing in the code imposes on members of the police or firefighter pension boards the duty to
Memorandum
April 9, 2O03
Page 3
serve o n another pension board, t he simultaneous scrvice b y such board m embers o n another
board would violate the prohibition on dual office-holding.
However, the city code addressed in AGO 2004-05 does impose ex officio duties on a city
council member to serve on the general employees pension board, where the code provides that
"Thc board of trustees of thc city general retirement system consists of: (1) One member of the
city council to be appointed by the city council." Therefore, a city council member appointed by
the city council may serve on the board of trustees of the general employees' retirement fund
without violating the prohibition on dual office-holding.
Conclusion
In our opinion, the language in the General Employees' Retirement Plan is not sufficiently clear
and unambiguous as to impose ex-officio duties on a specific City official to serve on the
retirement committee. Therefore, the plan should be amended if the City desires that elected or
appointed officials be appointed to that committee. It is our understanding that the City Finance
Director is considered to be an officer of the City, and CmTently serves on the retirement
committee. Accordingly, the plan should be emended to specify that the Finance Director is a
member of the committee.
The language of the Police and Firefighters' Retirement Plan is, in our opinion, sufficient clear
as to impose ex-officio duties on the Mayor to serve as a member of that pension board without
violating the prohibition against dual office-holding
Please call if you have any further questions regarding this matter.
www. becanews.cem --Boca Ru~Delray Beach Nows ~- Ffiday~ May 7; 2004 ', ~25"
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