Florida/Georgia Personal Injury & Workers Compensation

...Branca contends that article X, section 14, only pertains to increases in benefits in existing pension plans and that ordinance 88-16 created a new plan. The reason the court below worded the certified question in the way it did is because of the city's argument that it already had a pension plan by reason of section 112.048, Florida Statutes (1987). This statute mandates that cities provide a retirement benefit of half pay for an elected official who voluntarily retires and who has held office in the city for a period of twenty consecutive years. We do not believe that the existence of section 112.048 meant that the City of Miramar had an existing plan, particularly since no one had ever qualified for it....

...lt. Salz v. Department of Administration, 432 So.2d 1376 (Fla. 3d DCA 1983); Dade County v. Bengis Associates, Inc., 257 So.2d 291 (Fla. 3d DCA), cert. denied, 261 So.2d 839 (Fla. 1972). However, the City of Miramar had the statutory authority under section 112.048(3), Florida Statutes (1987), to provide a pension plan for elected officials....

...O'Neill Williston City Attorney Post Office Drawer 908 Williston, Florida 32696 Dear Mr. O'Neill: You ask substantially the following question: If a city council member is president of the city council at the time of his retirement, is such council member, who is entitled to the voluntary retirement benefits provided by section 112.048 , Florida Statutes, entitled to one-half the monthly salary of a council member or one-half the salary of the president of the city council? In sum: Since section 112.048 , Florida Statutes, provides for a retirement benefit based upon the annual or monthly salary of the elected officer at the time of resignation or retirement, the city council member who is president of the city council at the time of...

...mbers of the city council on an annual basis, is entitled a salary of $250 per month. The question has been raised as to whether the city council member who was president at the time of his retirement is entitled to $100 per month or $125 per month. Section 112.048 , Florida Statutes, provides that it is the intent of the Legislature to direct each city or town to provide either a contributory or a noncontributory system of retirement for its elected officials....

...time of resignation or retirement; and such city or town shall appropriate and provide in its annual budget sufficient moneys to meet the requirements of this section when no other plan is available for elected local officials. . . . 2 (e.s.) Thus, section 112.048 provides for voluntary retirement with half pay for certain elective municipal officers and the appropriation of municipal funds for such retirement when no other plan is available for elected local officials. 3 Section 112.048 (2)(a), Florida Statutes, clearly states that the retirement pay authorized therein shall be a sum equal to one-half of the full amount of annual or monthly salary that such city was authorized to pay the elected officer at the time of the officer's resignation or retirement. It is a fundamental rule of statutory construction that where the language of a statute is unambiguous, the clearly expressed intent must be given effect and there is no room for construction. 4 Accordingly, I am of the opinion that inasmuch as section 112.048 , Florida Statutes, provides for a retirement benefit based upon the annual or monthly salary of the elected officer at the time of resignation or retirement, the city council member who was president of the city council when he retired is entitled to one-half the monthly salary of the president of the city council under that section. Sincerely, Robert A. Butterworth Attorney General RAB/tgk 1 Section 112.048 (1), Fla....

councilmen as "persons in the employ of the city." Section 112.048, F.S., provides in pertinent part: (1)

...Forshee, a former city council member, with a pension, even though he never enrolled in or made contributions to the City's pension plan. Forshee relies on a statute requiring municipalities to pay pensions out of their annual budgets to certain retired elected officials "when no other plan is available." § 112.048(2), Fla.Stat....

...Under the City's view, an "other plan" need not be established by ordinance in order to be "available." We agree and reverse. Thirty-six months after leaving office, Forshee filed a complaint against the City seeking a declaratory judgment regarding his rights under section 112.048, Florida Statutes. Section 112.048, Florida Statutes (1993) provides: (1) The intent of the Legislature is to authorize and direct each city and town to provide a system of retirement for elected officials, but it is further the intent that each city or town may determine whether the system will be contributory or noncontributory....

...e into the City's plan. [4] Forshee is not entitled to be enrolled in the City's plan on a subsidized basis at this late date. First and foremost, his complaint for declaratory judgment asks for no such relief. The complaint is predicated solely on "Section 112.048, Florida Statutes." At trial, Forshee testified that he never applied to join the pension plan....

...with physical handicaps, Forshee abandoned any claim of equitable estoppel [5] at oral argument. Counsel stated, "I am not arguing equitable estoppel. We did not plead that in our complaint. We are entitled to payment under the terms of the statute [section 112.048] and we have not sought equitable relief." Section 112.048 does not require municipalities to dip into their operating budgets to pay pensions to retired elected officials if another pension plan is "available for elected officials." There is no requirement that a plan be established by ordin...

...e requires that they do so. A city charter may also establish a "system of retirement for elected officials." Since the City's plan was "available for elected local officials" when Forshee was in office, there was an "other plan" for the purposes of section 112.048(2)(a)....

...Forshee has no right, therefore, to receive statutory retirement benefits. REVERSED. MICKLE and BENTON, JJ., concur. VAN NORTWICK, J., dissents with opinion. VAN NORTWICK, Judge, dissents. I respectfully dissent. While I agree with the conclusion of the majority opinion that section 112.048(2)(a), Florida Statutes (1993), does not require the City to prove that any other available retirement plan was adopted by ordinance, I would nevertheless affirm....

...Rather, Forshee argues in part that the "other plan" of the City was not "available" to him because he was advised by the City that he would be denied membership in the plan due to his physical handicap. Thus, Forshee contends, because the City plan was not "available" to him, under section 112.048(2)(a) the City is obligated to pay retirement benefits to him....

...Plaintiff was inaccurately advised by the City of Jacksonville as to his ability to join the pension fund of the City of Jacksonville. These factual findings formed a basis for the trial court's conclusion that Forshee was entitled to retirement benefits from the City under section 112.048....

...1st DCA 1984) ("The resolution of factual conflicts by a trial judge in a nonjury case will not be set aside on review unless totally unsupported by competent and substantial evidence."). Because here competent and substantial evidence in the record supports a finding that the City's "other plan" under section 112.048(2)(a) was not "available" to Forshee, I would affirm....

...name of the person to whom he attributed this inaccurate advice. [3] The circuit court specifically found: K. The City of Jacksonville has not established by ordinance a contributory retirement system for those officials defined in Florida Statutes 112.048(2). The City of Jacksonville has not by ordinance set forth the rules for participation, the amount of contribution, the method of payment, or method of appropriation for payments due to those officials defined in Florida Statutes 112.048(2). L. Plaintiff is entitled to benefits pursuant to Section 112.048 during the remainder of his life....

...e circuit court since the circuit court did not take judicial notice of article 16. Because we conclude that the method by which the City's pension plan was established is not dispositive on the question whether it is an "other plan" for purposes of section 112.048(2)(a), we need not reach the judicial notice issue....

Mr. G.R. McClelland Largo City Attorney Post Office Box 296 Largo, Florida 34649-0296 Dear Mr. McClelland: On behalf of the Largo City Commission, you ask substantially the following questions: 1. Does section 112.048 , Florida Statutes, require the City of Largo to provide retirement benefits equal to half of a city commissioner's salary when the officer served from August 1974 to April 1979 and from April 1980 to the present date? 2. Assuming the commissioner is re-elected, at what point in time would the commissioner be entitled to receive retirement benefits pursuant to section 112.048 , Florida Statutes? In sum: 1. The city commission is not required under section 112.048 , Florida Statutes, to provide retirement benefits to a city commissioner who has not served in an elected office for twenty years or more consecutively with no more than a six month break in service. 2. Since the city does not have a retirement benefit plan for its elected officials, a commissioner is entitled to benefits under section 112.048 , Florida Statutes, when he or she has served in an elected office for twenty years consecutively with no more than one break in service of six months or less....

...sly in that position since that time. You state that the city has no retirement benefit plan for elected city officials. A question has, therefore, been raised as to whether the commissioner is entitled to retirement benefits under the provisions of section 112.048 , Florida Statutes. Section 112.048 , Florida Statutes, provides that it is the intent of the Legislature to direct each city or town to provide either a contributory or a noncontributory system of retirement for its elected officials....

...fficient moneys to meet the requirements of this section when no other plan is available for elected local officials. . . . While the statute contains several exceptions, the exceptions are not applicable to the facts of the instant inquiry. 2 Thus, section 112.048 , Florida Statutes, provides for voluntary retirement with half pay for certain elected municipal officers and the appropriation of municipal funds for such purpose when no other plan is available for elected local officials....

...While the statute permits one break in service, such break may not exceed six months. It is a fundamental rule of statutory construction that where the language of a statute is unambiguous, the clearly expressed intent must be given effect. 4 Under the plain and unambiguous terms of section 112.048 (2)(a), Florida Statutes, an elected official is not entitled to retirement benefits under that statute if he or she has had a break in service of more than six months during the twenty years of consecutive service....

...Although the commissioner in question in the instant inquiry has served twenty years, such service has not been consecutive. Instead, the commissioner during this period had a break of service of one year from April 1979 to April 1980. The commissioner, therefore, does not qualify under the plain language of section 112.048 , Florida Statutes, for retirement benefits since his break in service exceeded six months....

...to serve in such capacity without a break in service exceeding six months, he would be eligible under the statute for retirement benefits in April 2000, provided the city does not establish a retirement system. Accordingly, I am of the opinion that section 112.048 , Florida Statutes, does not require the city to provide retirement benefits since the city commissioner has not served in an elective office for twenty years or more consecutively with no more than a six month break in service. Since the city does not have a retirement benefit plan for its elected officials, a commissioner would be entitled to benefits under section 112.048 , Florida Statutes, when he or she has served in an elected office for twenty years consecutively with no more than one break in service of six months or less. Sincerely, Robert A. Butterworth Attorney General RAB/tjw 1 Section 112.048 (1), Fla. Stat. (1995). 2 See, s. 112.048 (2)(a), Fla....

...fice prior to discharge from such service in the Armed Forces, such time of service in the Armed Forces shall not be construed as a break in consecutive service and shall be counted in determining the number of years of consecutive service. And see, s. 112.048 (2)(b), Fla. Stat. (1995), stating in part that the statute does not preclude an officer from retiring under the provisions of section 112.048 as it existed prior to October 1, 1973, if the officer had, prior to that date, completed the required 20 years of service....

authorized to pay, pursuant to the provisions of section 112.048, Florida Statutes, retirement benefits to a

...Notably, however, even where there is reliance upon representations of fact, logically estoppel will not be applied where such application would achieve an illegal result or one contrary to public policy. We now turn to the issue of whether Ordinance 88-16 is unconstitutional. Section 112.048, Florida Statutes, predates the enactment of Article X, Section 14, Florida Constitution (1968), and Chapter 112, Part VII, Florida Statutes....

...ds shall not after January 1, 1977, provide any increase in the benefits to the members or beneficiaries of such system unless such unit has made or concurrently makes provision for the funding of the increase in benefits on a sound actuarial basis. Section 112.048 mandates that cities must provide a retirement benefit of half-pay of an elective officer who voluntarily retires and who has held office in that city for a period of twenty (20) consecutive years....

...ramar elected officials under Ordinance 88-16 was an increase in benefits as contemplated in Article X, Section 14, because no such pension benefits existed for elected officials prior to the enactment of Ordinance 88-16 apart from those mandated in section 112.048, Florida Statutes....