602 So. 2d 1374 | Fla. Dist. Ct. App. | 1992
Lead Opinion
Frank R. Branca appeals from a final declaratory judgment the trial court entered on April 17, 1991, in favor of the City of Miramar. The City of Miramar sought a declaratory judgment pursuant to Chapter 86, Florida Statutes, with respect to a City of Miramar Ordinance that had created a pension plan of which appellant was the only vested beneficiary. The trial court held the ordinance to be unconstitutional under Article X, Section 14, Florida Constitution, and invalid under Chapter 112, Part VII, Florida Statutes. The City cross-appeals the court’s award of attorney’s fees to Branca to compensate him for defending the suit, as well as the court’s refusal to reserve jurisdiction in the final judgment to award supplemental relief the City requested. We affirm all issues on appeal; on the City’s cross-appeal we affirm, although we note harmless error as to the second point.
Appellant first argues that the City lacked standing to seek a declaratory judgment regarding the validity of its own ordinance. The record shows that the idea for Ordinance 88-16 originated in 1988 when appellant, who was then Mayor of the City of Miramar, approached the City’s Finance Director, Jack Neustadt and requested that Neustadt inquire into exclusive retirement systems for elected officials in Florida. Thus, the ordinance was requested by the administration, which at that time was under appellant’s direction. Eventually, the ordinance was presented to the City Commission and approved.
Under the facts presented, we hold that the City had standing to seek this declaratory judgment, because the circuit court is the proper tribunal to determine the constitutionality of ordinances and proposed ordi
Appellant next argues that the City should be estopped from denying him pension benefits, notwithstanding the ruling that Ordinance 88-16 is unconstitutional, because he retired in good faith reliance on representations that “the pension was legal, valid and good.” The trial court found “[t]hat there was no representation of any fact by the City of Miramar relative to Defendant Branca’s retirement rights under Miramar Ordinance 88-16, which the City now seeks to deny.” It is undisputed that the City paid appellant pension benefits after his retirement and continued to do so after the City Commission repealed Ordinance 88-16, until the ordinance was declared unconstitutional. We conclude that the City’s representations to appellant, on which appellant relied, were representations of law. As a result, estoppel will not lie. See The Department of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981). 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.
A governmental unit responsible for any retirement or pension system supported in whole or in part by public funds 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.
We acknowledge that section 112.-625(l)(b), Florida Statutes, provides an exception to the foregoing funding requirements in the case where the plan is unfunded and maintained by an employer primarily for purposes of providing deferred com
WHETHER ARTICLE X, SECTION 14, AND THE REQUIREMENTS THEREOF APPLY ONLY TO EXISTING COUNTY OR MUNICIPAL PENSION PLANS, OR WHETHER THE REQUIREMENTS ALSO APPLY TO COUNTY OR MUNICIPAL PENSION PLANS THAT INCREASE OTHER EXISTING GOVERNMENTAL [i.e., STATE] PENSION PLAN BENEFITS.
As to the first issue on the City’s cross-appeal, we hold that the trial court’s award of attorney’s fees to appellant Bran-ca was proper. A public official is entitled to representation at the public’s expense where the litigation (1) arises out of or in connection with the performance of their official duties and (2) serves a public purpose. See Thornber v. City of Ft. Walton Beach, 568 So.2d 914 (Fla.1990). The subject of the action below was an ordinance enacted while appellant was Mayor of the City of Miramar. As Mayor, he initiated the process of drafting said Ordinance. In view of the fact that the outcome of the litigation would determine whether the City would be obligated to pay appellant a substantial sum of money in public funds over his lifetime, it served a public purpose. Thus, we affirm the trial court’s attorney fee award to appellant.
Regarding the City’s second point on cross-appeal, we hold that any error the court committed when it struck its provision reserving jurisdiction in the proposed final judgment for supplemental relief, is harmless. Appropriate supplemental relief under section 86.061, Florida Statutes, may be sought notwithstanding a lack of express reservation of jurisdiction in the final declaratory judgment. Haft-Gaines Co. v. Lakes of Inverrary Condominiums, Inc., 432 So.2d 729, 731 (Fla. 4th DCA 1983). As a result, the trial court’s striking of the provision does not constitute reversible error.
Accordingly, we affirm all points on appeal with the exception of the constitutional question, which we certify herein; we affirm both points on cross-appeal.
. In accordance with the ordinance, the only contribution to be made by the elected official was 5 percent of his or her salary. An elected official retiring after twenty years would receive annually 50 percent of his or her average annual salary for the preceding five years. Earlier retirement reduced the pension benefits. When these contributions were exhausted, the ordinance provided that the benefits “shall be paid by the City from its general funds”. Appellant’s contributions were exhausted two months after he retired.
. The new commissioners were elected in 1988. Appellant retired in April and the Commission repealed Ordinance 88-16 on May 15, 1989, through its enactment of Ordinance 89-30.
. Appellant argues that the City’s proper recourse would have been to sue its actuarial consultant, since the actuary advised the City that the ordinance was constitutional. However, we agree with the City that such action would have left unresolved the constitutional issue.
. Section 112.625(l)(a-f) define six types of retirement or pension plans that are exempt from the funding and actuarial requirements stated in Part VII.
.The trial court found that if appellant had not retired as Mayor in mid-term on April 3, 1989, and had completed his term in office, he would have served the City of Miramar for eighteen (18) consecutive years. His term of office began March 6, 1973 and would have ended March 12, 1991. His resignation was a voluntary .act. Whether appellant would have been reelected in 1991 to permit him to complete twenty (20) years with the City, would be speculative.
. Mr. Palmquist, the actuary who assisted with creation of the Ordinance, testified that the Ordinance was a plan of deferred compensation as just described; however, he admitted that he did not mention this exception at any public hearing held in connection with the Ordinance’s enactment. Mr. Palmquist further conceded that he first went on record as describing the Ordinance as being one of deferred compensation, after the Division's legal opinion that found the pension plan to be unconstitutional. Furthermore, the Ordinance, according to Mr. Palmquist, did not provide for a “named fiduciary" or “plan administrator” as required by section 112.625. The City’s expert witness, Fred Mabry, testified that the ordinance did not create a deferred compensation plan. Moreover, nowhere in the ordinance is it described as creating a deferred compensation plan; the City Attorney also testified that it was never intended to create a deferred compensation plan.
Dissenting Opinion
dissenting.
If a private employer created a pension plan for his employees and, when one of his qualified employees retired in reliance on it, only then unilaterally terminated the plan and stopped paying benefits, we should not have to search for reasons to find against the employer in the retiree’s lawsuit for benefits. For, unlike a good many other employment benefits and perquisites, pension benefits are different. The retiree is usually especially vulnerable as to the ability to return to the job market and make “cover”. Even if he could, his dependency on the lost pension benefits for the necessaries of life would render almost any judicial relief ineffectual, or too late to matter.
Frankly, I do not understand how the fact that his employer, the payor of his retirement funds, is a municipality empowers it to effect a non-consensual, unilateral termination of benefits to one of its retirees. Simply because the city exercises governmental powers does not entitle it to make a bargain with its employees and then decide not to live up to its agreement. The mere fact that it is a city no more enables it to stop paying agreed retirement benefits to one of its retired workers than it would authorize the city to refuse wages or salary to an employee for a days work. Even local government must follow the law. That the city was ill-advised to vote to set up this, perhaps too generous, plan is surely no reason to allow it to disavow any obligation to pay benefits to one of its qualified employees who retired in reliance on its terms. The fact that a contract turns out to be a bad one for one of the parties has never been any reason to relieve that party of his agreed duty to perform.
The city looks for its authority to cancel this plan in certain state constitutional and statutory provisions relating to the actuarial soundness of public employer retirement plans in Florida. But I do not understand how the fact that this plan may violate these provisions yields the conclusion that the city can just stop paying one of its retirees. I should have thought that the remedy for the constitutional/statutory violation would be to order the city to make the plan actuarily sound out of its own pockets (whether from tax increases or other revenues) but not to order it to stop paying retirement income. Shall we next order government to stop providing health care services at public hospitals because they are not economically managed or, in the terms used here, actuarily sound?
At bottom there seems to be a notion that local government — just because it is a government — can invite its employees to accept or continue employment with the promise of certain retirement benefits when they decide to retire, and then walk away from that obligation for reasons that the city alone has created and controlled. This eccentric idea has no support in the suggested actuarial difficulties of this retirement plan.
Local governments have long been equitably estopped from denying obligations that the government has itself created by its own conduct. See, e.g., Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla.1976), City of Lauderdale Lakes v. Corn, 427 So.2d 239 (Fla. 4th DCA 1983), and Town of Largo v. Imperial Homes Corp., 309 So.2d 571 (Fla. 2d DCA 1975). As then-Judge Grimes said in Town of Largo:
Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon.
309 So.2d at 573. If cities can be estopped from exercising their zoning and building regulation powers (where they have wide latitude) by this rule of fair play, surely the same rule can be used to bar the city from withholding retirement benefits from its own retiree.
The court’s perspective in this case is all askew. We should not be focusing on whether the city attorney was making legal
The essential rationale for the constitutional and statutory provisions cited by the city, from which I deduce public policy, is not that, if a particular plan is unsound, no one should get paid their retirement. Rather, the policy is to ensure that all retirees actually get paid by making the plans financially trustworthy and capable of meeting reasonably foreseeable obligations. To deny benefits to a retiree where the plan is unsound but the city is able to pay is to shoot the patient rather than to find the cure.
This analysis is not affected one whit by the fact that Branca was the mayor when the plan was adopted, or that he was the lone beneficiary when the plan was terminated, or that he worked for only one year after the plan was adopted, or that his current term as mayor when he retired would not have netted him a full 20-years of service, or even that the city’s revocation of the plan was done by a duly adopted ordinance of the city repealing the plan. These may have been good arguments against adopting the plan in the first place. They hardly empower us to relieve the city of its bad judgment. The remedy for the bad judgment was for the citizens to rise up on election day and choose new stewards for their affairs. The remedy for the constitutional/statutory violations is, if Branca or another beneficiary should seek it, to enjoin the city to comply with the constitution and statutes by making the plan sound.
Feeling that we have focused on this case from the wrong view, I dissent.
. I have no quarrel with the award of attorney’s fees to the beneficiary from the city. Otherwise, we should allow the city to cheat one of its employees but then require him to pay for the privilege.
