CopyAgo (Fla. Att'y Gen. 1980).
Published | Florida Attorney General Reports
Don J. Caton City Attorney Pensacola QUESTIONS: 1. What is the meaning of the term `ultimate control' as used in s. 112.66 (7), f. s.? 2. Does s. 112.66 (7) require that an irrevocable trust be contained in a special act of the Legislature or does it require only that an irrevocable trust be authorized by a special act of the Legislature? 3. Does s. 112.66 (8) vest control of the assets of municipal pension systems, including investment of the pension funds, in the governing body of a municipality? 4. Can the City of Pensacola Pension Board, as created by ch. 61-2655, Laws of Florida, as amended, be considered a `plan administrator' within the meaning of s. 112.66 (2)? SUMMARY: Until judicially or legislatively determined otherwise, the phrase `remain under the ultimate control of the governmental unit responsible for the retirement system or plan,' as used in s. 112.66 (7), F....
..., general or special, and ordinances enacted pursuant thereto which govern the management, administration, and control of the retirement system or plan and its assets and liabilities or trust funds remain in full force and effect. The requirement of s. 112.66 (7), F....
...However, such `irrevocable trust' need only be authorized by or created pursuant to a special act of the Legislature; there is no extraordinary requirement that the `irrevocable trust' itself be established and set forth in detail in a special act of the Legislature. Section 112.66 (8), F....
...established by part VII, ch. 112, are directed towards these protections. The provisions of part VII do not expressly or impliedly attempt to reorganize the legislative power and control over state or local governmental retirement systems and plans. Section 112.66 (7), F....
...ion is subject to judicial construction and clarification otherwise. It is within this framework and these limitations that your questions must be considered. AS TO QUESTION 1: You question first the meaning of the term `ultimate control' as used in s. 112.66 (7), F. S. Section 20 of ch. 79-183, Laws of Florida, reworded and substantially amended s. 112.66 and specifically amended subsection (7) of that statute to read: The assets and liabilities of a retirement system or plan shall remain under the ultimate control of the governmental unit responsible for the retirement system or plan, unles...
...stitutions of state , county, special district, and municipal governments which participate in, operate, or administer a retirement system or plan for public employees . . . .' (Emphasis supplied.) Chapter 78-170, Laws of Florida, originally enacted s. 112.66 (8), F. S. (1978 Supp.) (renumbered and substantially reworded by ch. 79-183, Laws of Florida, as s. 112.66 (7)) to provide that `[t]he assets and liabilities of a retirement system or plan shall remain under the ultimate control of the governmental unit responsible for the retirement system or plan.' (Emphasis supplied.) Chapter 79-183 revised this subsection to read as set out above....
...d enough to encompass or relate to any agency, department, board, commission, office, or similar unit or subdivision of municipal government which by law and in fact manages, operates, or administers a retirement system or plan for public employees. Section 112.66 (8), F....
...Metz Construction Co., Inc.,
285 So.2d 598 (Fla. 1973); Village of North Palm Beach v. Mason,
167 So.2d 721 (Fla. 1964); and City of Miami v. Kayfetz,
92 So.2d 798 (Fla. 1957). I am unable to say that the phrase `remain under the ultimate control,' as used in s.
112.66 (7), F....
...law, charter, or ordinance as to involve a repeal, removal, or supersedure of the law, charter, or ordinance. It is a reasonable assumption that such control or ultimate authority is already vested in the state and local legislative bodies. Indeed, s. 112.66 (7) expressly recognizes that nothing contained in part VII `shall absolve the governmental unit from being ultimately responsible for the payment of its contribution to a retirement system or plan nor remove from the governmental unit the...
...nless an irrevocable trust has been established prior to the effective date of part VII, or is established in the future by a special act for the purpose of managing and controlling the retirement system or plan. It might be noted at this point that s. 112.66 (2), F....
...e plan is operated.' (Emphasis supplied.) Section
112.625 (2) goes on to provide that if no plan administrator has been designated in such instrument or instruments, ordinance, or statute, the plan sponsor is to be considered the plan administrator. Section
112.66 (8) employs substantially similar language in providing that `[t]he instrument or instruments, ordinance, or statute under which a retirement system or plan operates shall provide that all assets of such retirement system or plan shall...
...If the hearing officer recommends in favor of the division, the division shall then perform an actuarial review or prepare the statement of actuarial impact and charge the cost of such performance to the `governmental entity' the employees of which are covered by the retirement system or plan. Section 112.66 (7), F....
...Such determination, necessarily based on the provisions of existing or future laws and implementing ordinances, remains the responsibility of the affected local governmental officials and, ultimately, the judicial branch of state government. AS TO QUESTION 2: You question whether s. 112.66 (7), F. S., requires the irrevocable trust referred to therein to be contained in a special act of the Legislature or merely authorized by such special act. Section 112.66 (7), in pertinent part, provides that `nothing contained herein shall be construed to permit the creation of such irrevocable trust except by special act of the Legislature.' (Emphasis supplied.) This language requires that any irrevoc...
...in the interest of maximizing the protection of public employee retirement benefits. Obviously, the Legislature can create a trust for the management and control of a state retirement system or plan by a general act; thus, the limitation provided by s. 112.66 (7) applies only to units of local government....
...Auto-Owners Insurance Co.,
363 So.2d 1077 (Fla. 1978); Foley v. Morris,
339 So.2d 215 (Fla. 1976); and State ex rel . Riverside Bank v. Green,
101 So.2d 805 (Fla. 1958). No such legislative intent for retrospective application is expressed in the terms of s.
112.66 , F....
...No statutory definition for this phrase is provided in part VII of ch. 112, F. S. The word `by' is defined in The Random House Dictionary of the English Language (1967) , p. 203 as `according to,' pursuant to the `authority of,' `in conformity with,' or `through the means or medium of.' When used, as in s. 112.66 (7), with reference to the authority of or the cause for an act or thing, `by' is defined in 12 C.J.S., p....
...869 (1938), to mean `[b]ecause of, through, or in pursuance of . . . .' See also 5A Words and Phrases , pp. 790-811 (1968). Therefore, it can be said that the requirement that an irrevocable trust be created `by special act of the Legislature,' in the context in which it is used in s. 112.66 (7), means that the irrevocable trust must be in accordance with or pursuant to a special act. There is no express or contextually implied limitation that the irrevocable trust be contained verbatim in a special act. It is therefore my conclusion that, unless judicially interpreted otherwise, the irrevocable trust referred to in s. 112.66 (7), F. S., need only be authorized by or created pursuant to a special act; such irrevocable trust could be created by ordinance enacted in accordance with or pursuant to a law enacted by the Legislature. AS TO QUESTION 3: You also question whether s. 112.661 (8), F....
...shed pursuant thereto which vest the control of, and investment of, such trust assets and the operation of any trust fund or retirement plan in other officials, units, agencies, branches, departments, boards, or institutions of municipal government. Section 112.66 (8), F....
...and operation of a retirement system or plan or the investment and control of such plan's trust assets. AS TO QUESTION 4: Finally you question whether the City of Pensacola Pension Board can be considered a `plan administrator' within the meaning of s. 112.66 (2), F....
