HomeMy WebLinkAbout1990-03-29 Minutes•
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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
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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.,
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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.
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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.
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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.