Loading...
HomeMy WebLinkAbout1990-03-29 Minutes• • • MINUTES OF A MEETING OF THE FIRE PENSION BOARD A meeting of the Fayetteville Fire Pension and Relief Fund Board of Trustees was held on Thursday, March 29, 1990, at 1:30 p.m. in Room 326 of City Hall. PRESENT: Fire Chief Mickey Jackson, Ex -Officio Treasurer Scott Linebaugh, Firemen Pete Reagan, John Dill, Retiree Carl Springston and City Attorney, Jerry Rose. OTHERS PRESENT: Richard Yada of Merrill Lynch, Roy Skelton, Lamar Pettus, Skelton' attorney, and Clarice Pearman ABSENT: Fireman Mike Bonaduce and Secretary Sherry Thomas CALL TO ORDER �p The meeting was called to order by-Mickn ey—Jaekee.�tvX% ott..+eiiiascla MINUTES Reagan, seconded by Dill, made a motion to approve the minutes of the last meeting. The motion passed unanimously. PENSION LIST Linebaugh stated that there were no changes on the pension list. Dill, seconded by Reagan, made a motion to approve the pension list for the month of March, 1990. The motion passed unanimously. INVESTMENTS Richard Yada addressed the Board with a letter from Roxbury regarding the 'Sullivan Principles", by Rev. Leon Sullivan, which relate to restrictions on stock purchases from companies who provide implements of war or Federal funds to the Republic of South Africa. Roxbury is asking for compliance with the State approved list of stocks. Many companies on the list considered restrictive by the State would probably comply with the 'Sullivan Principles'. In addition, the letter recommends avoiding foreign stocks as they may be non-compliant with the 'Sullivan Principles'. Yada stated we can purchase stocks that are foreign provided they are traded in the U.S. Arkansas passed a statute in 1987 stating stocks could not be bought in companies that furnished arms, etc., to South Africa. This statute is to be in full force by 1991. Yada further stated that Roxbury is taking the conservative line and asking the Board for their interpretation of the 'Sullivan Principles' and instruction on purchase of certain restrictive stocks. Jackson asked how this could effect the current stock and if by approving this letter, they would have to sell currently held stocks. Yada responded that they are only 40% invested and he believed there would be no adverse effect. March 29, 1990 Rose was asked for his interpretation of the request by Roxbury, and responded that the Board needed to either sign it or not sign it, with amended instruction; further that he saw no legal liability resulting from signing the letter. Reagan, seconded by Jackson, made a motion to approve the signing of the letter. The motion passed unanimously. Yada addressed the Board with New Mexico and Roxbury portfolio recap sheets for 1990. New Mexico Capital Management began 12/31/89 with a total of $2,082,593. The portfolio is currently worth $2,171,893, up 4.29% with Dow Jones industrial average to date this year down 1.77% for the same time period. There is still $105,168 invested in Occidental Petroleum. Yada reported from the fixed income portfolio that Occidental Petroleum bought nine CD's @ $30,000 with an average of 8.15% rate of return. He also stated that the quarterly report would be presented to the Board at the next regular meeting. With respect to asset allocation, there is 25.9% to date in stocks. However, if $352,000 from Roxbury was added from the cash side, the percentage would increase to about 32%. All money markets and securities will mature in less than one year. Concerning investment policy, it was noted that the cash side was "high" and, while the stock portfolio was within suggested guidelines, it will be up to Roxbury to bring the portfolio portion up to the guidelines. ROY SKELTON RETIREMENT Jerry Rose acknowledged the presence of Roy Skelton, along with his attorney, Lamar Pettus. Rose stated Mr. Pettus has written a letter dated March 2, 1990, to the Pension Board. Rose recommended considering the letter as a request for a rehearing for the reasons outlined in letter. Jackson invited Mr. Pettus to address the Board regarding a rehearing, and to answer questions from the Board. It was also noted that an appeal has been filed in Washington County Circuit Court by Mr. Pettus on behalf of his client as he was concerned about the 30 -day "right to appeal' ruling. Pettus stated he was concerned about a couple of different things that he had pointed out in his letter. In reviewing case law of pension fund appeals, cases have been dismissed for technicalities; for example, not having the doctor's reports notarized. In Mr. Skelton's case, neither the City's doctor nor Skelton's doctor's report were notarized. Mr. Pettus wanted these issues to be waived or for the record to be cleaned up. Jackson's letter to Pettus regarding time of service, etc., was also not notarized, and should be according to the law. Pettus stated his concern regarding the evidence is that Dr. Duncan ended his medical report by stating he had not addressed the "chronic nervousness' issue which is, in his opinion, the basis of the complaint submitted by Mr. Skelton. The letter from Dr. Baker was also lacking in this area because he does not address the key language the statute asked the doctor to address, i.e., • • • March 29, 1990 whether or not Mr. Skelton is capable of performing substantial duties that he would be required to perform for the Fire Department. If the rehearing is granted, Pettus stated he would envision dismissing the appeal. As he told Mr. Skelton, who was opposed to the appeal before they requested a rehearing, Pettus was not willing to substitute himself for the pension board if he made the wrong decision about not filing the lawsuit. Pettus asked that if the rehearing was allowed, the Board designate a physician for an evaluation of Mr. Skelton to address the specific complaint of chronic nervousness. He also wanted to make sure that Dr. Baker had clearly addressed the issue from Mr. Skelton's standpoint. Rose asked if Pettus was wanting the Board to designate a physician of their choice. Pettus stated that Dr. Duncan's report was sufficient in the area he addressed. In light of that information, Rose asked Pettus if he had a recommendation for a physician to examine Skelton. Pettus stated that he would have to get a name of a doctor for the board. Rose was asked if the physician should be a psychiatrist, psychologist, or a general physician. Jackson stated that Skelton was originally sent by the board to Dr. Butler, who suggested a visit to Dr. Duncan, due to his "expertise' in that area. Pettus stated the need to send Skelton to either a neurologist or a psychologist. Rose asked if Pettus would object to the Board arranging an examination by a psychiatrist. Rose suggested that the Board contact Dr. Butler for his recommendations regarding a physician for Skelton to see, then submit the list to Pettus for him to decide upon the physician. Jackson stated based on the wording in the law, the Board should make this determination if they are going to pay the bill for the examination. Rose asked Pettus if the new evidence he envisioned for the rehearing was additional correspondence with Dr. Baker addressing the specific issue of chronic nervousness. Pettus stated that was correct, and he wanted Dr. Baker to state whether he thought Skelton was or was not suffering a disability that would prohibit him from fulfilling duties which could be assigned to him as a firefighter. Rose stated the record now consists of the report from Dr. Baker in the form of a letter, Dr. Baker appearing before the Board at its last meeting and giving oral testimony, and Mr. Skelton's submissions. In addition, we could have a psychiatrist's examination and additional testimony, if needed, from Dr. Baker. Rose advised the board that they were not legally obligated to approve a rehearing, but stated that any and all cooperation that the Board could give in the matter would be advantageous in future court proceedings. He also stated that the final decision was entirely at the Board's discretion. Pettus agreed that granting a rehearing was at the Board's discretion, but re- emphasized the importance of 'filling in the blanks' with regard to physician's examinations and reports, as stated previously. • March 29, 1990 Dill asked if a psychiatrist would tell the Board what caused Skelton's problem, when it was caused, or just that he may have chronic nervous disorder. He stated he was leery of paying a psychiatrist who has never seen Skelton to give a professional opinion, as opposed to using Dr. Baker's testimony, which was based on 25-30 years knowledge of Skelton. Rose stated he felt a psychiatrist would look at the history and have benefit of Dr. Baker's records as well as whatever Mr. Skelton may tell him by way of history. Jackson stated he felt the Board could chose a psychiatrist and then get together with him and tell him what information the Board needs to make a decision. Jackson asked Pettus if he was wanting to review the materials already submitted, or have rehearing on the new additional information. Pettus stated he was asking for the record to be opened so he could present additional medical evidence. Jackson asked what Pettus' course of action would be if the psychiatrist returned a report that there was no psychological disability, or there is evidence of one, but not line of duty related. Pettus stated you could either appeal or not appeal. He will have to look at the record and tell Mr. Skelton if he feels there is a valid ground for an appeal. Rose stated, in other words, Pettus is not sure what to advise his client until he gets a report from a psychiatrist. Linebaugh asked Rose if he felt the information Pettus was asking for would benefit the Pension Board in court as well. Rose stated the Board's willingness to bend over backward and give Mr. Skelton every benefit of the doubt will make him look better in court. He does not think the Pension Board would look bad in court now. Dill stated he had no problem with a psychiatrist other than the additional costs involved. He thought Skelton had already been given the opportunity to bring all information available to the Pension Board. He personally does not want to go this route. Reagan stated he felt it would be very difficult for a psychiatrist to determine accurately the situation from a one time visit. Dill stated he understood that at the last meeting, Dr. Baker stated Roy had personality problems and nervous disorders, but over and over he stated Roy's job had aggravated the condition. He would not say the job had caused Roy's medical problems. Dill stated he understood the state statute said the job had to cause the injury or disease. He is not sure a psychiatrist could tell the Board anything other than what Dr. Baker has already stated. Jackson asked if the Board chose not to submit Skelton for a psychological examination, and it were to go to court as an appeal, is it not likely that one of the first things the judge will order would be a psychological evaluation. Rose did not believe this would be the case. March 29, 2990 Pettus stated that he understood the statute would not allow any additional evidence to be introduced. He stated they did not have a problem with leaving the record as it stands and letting a judge decide the issue. Jackson made a motion to grant the rehearing. Dill asked if the rehearing request included paying for a psychological examination. Rose stated there were two issues before the Board. One was to waive the certification of the physicians' reports and the certification report of how many years Mr. Skelton has been on the Fire Department. The other issue is the rehearing. He feels the rehearing request is to designate a psychiatrist and have him examined, present that as evidence, allow some additional testimony from Dr. Baker, and have a rehearing based on the additional evidence. Jackson stated he would withdraw his previous motion, and make a motion to waive the certification requirements. Dill seconded this motion. The motion passed unanimously. Dill stated he felt if a rehearing was granted, and give him another opportunity to present facts, he feels that if Skelton wants a psychiatrist's report, he should obtain one himself. Rose stated there was something to that. He understood the law as requiring the burden of proof on Mr. Skelton. Pettus stated he felt the Board could grant the rehearing, and then it would be up to Skelton whether or not he wants to obtain the evaluation and submit the additional information. If you are going to have a rehearing and have a physician, Rose stated his preference was for the Board to choose the physician and pay for the examination. Dill stated he thought they were asking for a rehearing to present additional medical evidence. Rose stated they were. Dill stated that their additional medical evidence is going to be something the Board is to pay for and ask of him. Pettus felt rather than getting into Skelton supplying additional evidence and paying for it, he would rather not have the rehearing and let the judge look at the evidence. Rose stated that the possibilities had just been narrowed. The Board is now being asked to have rehearing based on our psychiatrist and us paying the bill or not have the rehearing. Dill made a lotion to deny the rehearing. Reagan seconded the motion. The motion passed. Pettus asked that the only part of the record that needs to be certified as of today is the waiver portion. He expressed his appreciation to the Board for considering the issue. • • March 29, 1990 At this point, Pettus and Skelton left the meeting. Rose stated that when you appeal from a decision within, you often times get a de novo hearing, which means we are starting over from scratch. That is not true here, he believes. He believes the standard here is simply that the judge will review our record. He is presenting to the judge transcriptions of the meetings where the line of duty disability was denied, and he is presenting every scrap of paper that came from Dr. Baker, Dr. Duncan, and all of the testimony including Mr. Skelton's information. He does not believe the judge will hear any additional testimony even if they go to him and say they have this great psychiatric exam. He believes the worst that will happen is that the judge will say that there was not sufficient evidence for the Board to make a decision. The judge would probably remand the issue back to the Board for a rehearing. Linebaugh asked Rose whey he thought Skelton wanted to have a rehearing. Rose felt he hoped that a psychiatrist would come out and agree with Skelton or would be so equivocal in not making a decision that would give Skelton room for argument. Rose stated he got the impression that if Pettus went back to Dr. Baker, he might get Dr. Baker to state unequivocally that it was not just an aggravation but a cause of Skelton's problems. ADJOURNMENT The meeting adjourned at about 3:00 p.m.