Childers provides emails from state showing annuity program no longer a retirement option

This story has been updated to correct a mistake that appeared in the original version. Commissioner Steven Barry and County Attorney Alison Rogers went before the Florida Commission on Ethics in March to seek approval to vote on a settlement reimbursing commissioners and senior-level officials.

Escambia County Clerk and Comptroller Pam Childers has provided the county attorney and commissioners a series of emails between her staff and the Florida Retirement System that she said show the commissioners' annuity program isn't legal.

But the county attorney disputes that, saying the documents don't appear to state that the program is illegal and said she would need more information to take any action.

The move comes after Childers said at last week's County Commission meeting that a lucrative retirement program that three commissioners use isn't valid. She later suggested the commissioners who participate in the program may need to repay their contributions and enroll in the same Florida Retirement System program as everyone else.

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No one publicly responded to Childers' comments during the meeting, but county attorney Alison Rogers almost immediately made a public records request seeking the documents that Childers said prove the program isn't legal.

The annuity program available to commissioners and senior-level county staff came into discussion in June when Commissioner Steven Barry, who enrolled in the program when he was re-elected in 2020, brought forward a motion to provide backpay for himself, Commissioner Lumon May and any other senior staff who are eligible but didn't know about the details of the plan when they took office. 

Barry and Rogers appeared before the state Commission of Ethics in March to seek approval to vote for the backpay option. The ethics commission approved the board voting on the option because it impacted a class of employees that included senior-level officials in addition to commissioners.

The program until earlier this month contributed 49.18% of the commissioners' salaries into their annuity plan, which is the same amount as the county would contribute to a Florida Retirement System account, but the lack of overhead fees in the annuity program make it much more lucrative. Childers implemented a change July 1 to scale back the annuity contribution to 8.34%.

What do the emails say?

In the emails that Childers released Monday, a representative of the Department of Management Services — the agency that administers the Florida Retirement System —  wrote July 20 that the State Board of Administration had made changes to the forms in which elected officials enroll in retirement programs to remove the local annuity option, following an email back-and-forth that lasted close to a month.

Escambia County Clerk's general counsel, Codey Leigh, first emailed the DMS in late June asking for clarification on why the retirement forms have an option for a local annuity when state statute doesn't reference them as a valid retirement plan option.

DMS representative Nikita Parker, who is assistant general counsel within the agency, said in an email to Leigh that their team was reviewing Leigh's questions and could not accept a conference call to discuss further.

Leigh again followed up with research from the state statute in which he found that references to elected county officials being able to participate in a lifetime monthly annuity program were removed by a House bill in 1999, and another reference to elected officers opting out to join a local annuity was deleted by a House bill in 2009.

Parker responded July 20 — two days before Childers' comments at the commission meeting — to say that the State Board of Administration had changed the form. The version available online that was updated this month no longer offers an option to decline FRS and join a local annuity.

It does not appear the state made any kind of public announcement of the change nor has it said whether existing programs can be grandfathered in.

DMS representatives did not respond to the News Journal's request for comment Tuesday.

County attorney: Emails don't say program is illegal

Childers had said last week that rather than being actively prohibited, the local annuity plan was simply not within the scope of the law and therefore there are no grounds to offer the program.

"It is now clear that there is no specific statutory authority to support the County's contribution to a commissioner's ICMA-401a investment account," Childers said in her email to Rogers and the commissioners. "It is my opinion that Commissioners Barry, Bender, and May must cease participation in the County's ICMA-401a investment plan and opt back into the Florida Retirement System."

Rogers said in an email Monday that after reviewing Childers' documents, she still doesn’t see any reference to Escambia County’s annuity program being illegal.

"We are reviewing what she has provided and so far do not see an email where FRS indicates our program is illegal," Rogers said in the email.  "We will certainly contact these FRS representatives to determine if they are providing additional guidance."

Commissioners Barry, May and Bender did not respond to requests for comment on the new documents. 

The next Board of County Commissioners meeting is scheduled for Aug. 5. The agenda for that meeting has not yet been posted.

Emma Kennedy can be reached at ekennedy@pnj.com or 850-480-6979.