Police Pension Board Meeting Minutes

Minutes of the January 16, 2019 2:30 p.m.
Police Pension Board Meeting

This special meeting of the Lady Lake Police Pension Board was held in the Commission Chambers at Lady Lake Town Hall, 409 Fennell Blvd., Lady Lake, Florida. The meeting convened at 2:36 p.m.

Members Present

Chairperson and Member Captain Jason Brough

Member Captain Robert Tempesta

Member Leonard Cieciek

Member William Farley

Member John Schmied

Staff Present

Kris Kollgaard, Town Manager; Pam Winegardner, Finance Director; and Nancy Slaton, Deputy Town Clerk

Also in Attendance

Kevin Stone of Stone & Gerken, P.A.

Jason Fox, Attorney for Disability Applicant Darwin Santos

Darwin Santos, Disability Applicant

Sandra Glick, Court Reporter

A. Call to Order

Chairperson and Member Captain Jason Brough at 2:36 p.m. when the claimant’s attorney arrived.

B. Roll Call

All members were in attendance.

C. Public Comment

Chairperson Captain Brough asked if anyone in the audience had any comments. There were no comments.

D. New Business

1. Hearing Continuation Regarding the Disability Claim of Darwin Santos

Kevin Stone of Stone & Gerken, P.A. stated that this is a continuation of the initial hearing for Mr. Santos’ claim for a disability pension. He stated he reviewed the standards for this quasi-judicial proceeding at the initial meeting.

Mr. Stone stated there are three standards the Board must find to make a determination for a disability claim. He stated the Board might make findings that lead to the approval of the disability retirement based on several elements that include whether the claimant is wholly unable to render useful and efficient service as a police officer, and whether the claimant is likely to remain so disabled. These standards are applied in regard to whether the claimant is unable to fully perform the Town of Lady Lake’s job description for a police officer. If the Board finds in favor of the claimant’s disability claim, they will then need to decide whether the disability is an in-line of duty injury.

Mr. Stone stated the reason the Board continued the initial hearing to this date is because the Board has questions pertaining to the timeliness of the disability application submittal.  He stated he was asked for a legal opinion regarding the eligibility of the claimant to apply for disability after voluntarily terminating his employment in November, 2017, prior to submitting his disability application. Mr. Stone stated the voluntary termination was preceded by a mediation as part of a Workers’ Compensation case. The parties reached an agreement at the mediation, which included that Mr. Santos would voluntarily terminate his employment. This settlement agreement was not signed by both parties until January 2018.The disability application was received by the Town on December 4, 2017.

Mr. Stone stated the Town of Lady Lake has an ordinance that states that someone who is terminated is not eligible to apply for disability benefits. One exception to this is if a disability application is received within 30 days of the termination if the termination was by the Town for medical reasons. Mr. Stone stated it is his opinion that this was not the case as Mr. Santos voluntarily resigned prior to his submittal of a disability application and the Town did not terminate Mr. Santos.

Mr. Stone stated he considered legal theories that might excuse this late application. One might be because the settlement agreement itself contained a phrase purporting to reserve the right to make a disability claim. The Town may be bound by that statement, and then the Board would be required to accept a late application. Mr. Stone stated his analysis rejected that because by the time the separation agreement was signed, Mr. Santos had already resigned and waived his right; he cannot retain a right he no longer has. Another reason is that the Town’s Workers’ Comp carrier and Town staff cannot trump a Town ordinance, nor can they impose a decision on this Board.

Mr. Stone encouraged the claimant and claimant’s counsel to provide more facts this afternoon that would help him modify his opinion. He stated research did not find many appeal cases of this nature out of Chapter 175 and Chapter 185 for pension claims. There were three circuit court cases that upheld pension board decisions for reasons similar to this; due to language in the local ordinance.

Mr. Stone invited Mr. Fox to state his case for the claimant.

Mr. Fox apologized for running late, and thanked the Board for attending this hearing. He stated he has been attempting to reach the attorney that represented the Town at the time. That attorney directed Mr. Fox to contact the people present on behalf of the Town for Mr. Santos’ mediation.

Mr. Fox stated he has been unable to contact Tia O’Neal who now has a new employer. He reached out to Mike Quigley, a past employee of the Town’s Risk Management firm. Mr. Quigley told Mr. Fox that the intent of the mediation was due to a medical non-clearance for Mr. Santos to return to work. He stated he has forwarded a message of that nature from Mr. Quigley to Attorney Stone. Mr. Fox stated he has been trying to reach Chris Hansen, as well, and requested an email statement from him, but he was not comfortable doing that.

Mr. Fox stated that witnesses could be called at a formal hearing if the claimant’s disability claim is deemed ineligible. He stated Mr. Santos would not have voluntarily cut himself off from benefits by voluntarily resigning as he was following the guidance of the Town’s representatives as part of the settlement for medical reasons since he was not be able to resume his duties as a police officer due to his injuries. He stated this was verified by the IME physician.

Chairperson Captain Brough asked if anyone had any questions.

Member Farley stated the he feels Mr. Santos accepted a settlement and voluntarily terminated his position with the Town. He stated it is his opinion that a voluntary termination is not a medical termination, and nullifies his eligibility to claim a police pension disability.

Mr. Stone offered that the Board should not anticipate that there would be live testimony at this initial hearing, and this should not be held against the claimant. He stated the claimant can request a full hearing if there is a denial at this initial hearing. Mr. Stone stated his analysis of the Town’s ordinance was very much impacted by the phrase “termination for medical reasons by the Town”. He said he feels there is no dispute that there were medical issues involved, however, there was no identification of a “termination by the Town”.

Member Farley made a motion to deny the claimant’s disability application based on the timeliness of the disability application’s submittal. Member Cieciek seconded the motion. The motion to deny disability retirement passed by a vote of 5-0.

Mr. Stone stated the claimant has the right to appeal and request a full hearing. He stated the Board could still review the medical issues involved with this disability claim at today’s hearing as a matter of efficiency in case a full hearing is requested.

Mr. Fox stated that he would not like the Board to proceed with reviewing the medical aspects of this claim at today’s hearing. For the record, Mr. Fox summarized his argument that the Board be estopped from the resignation argument due to activity by the Town.

Chairperson Brough asked if a full hearing is necessary since the Board denied the claim based on the claimant not being eligible to submit the application.

Mr. Stone replied that the claimant has the option to request a full hearing, and may have the right to appeal the orders of this Board through a common law Writ of Certiorari through the Circuit Court of Lake County. The Board could also agree to waive a full hearing and let it go before a judge. He stated he believes the claimant should be allowed to bring in live testimony, depositions, or affidavits to supplement the record at a full hearing as a matter of right.

E. Adjourn

There being no further discussion, the meeting was adjourned at 3:00 p.m.

s/ Nancy Slaton, Deputy Town Clerk

s/ Chairperson and Member Captain Brough

Note: The original signed documents are on file at the Town Clerk’s office. Copies are available upon request.

Minutes transcribed by Nancy Slaton, Deputy Town Clerk