HomeMy WebLinkAbout1991-02-08 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 Friday, February 8, 1991, at 2:10 p.m. in Room
326 of City Hall.
PRESENT: Chief Mickey Jackson, Firemen Mike Bonaduce, Pete
Reagan, John Dill, Retiree Darrell Judy, City
Manager Scott Linebaugh, Finance Director Ben
Mayes, City Attorney Jerry Rose, and City Clerk
Sherry Thomas.
CALL TO ORDER
The meeting was called to order by City Manager Scott Linebaugh.
SKELTON TRIAL
City Attorney Rose addressed the Board regarding the judgment that
had been issued in the Roy Skelton case. He stated the judge ruled
in favor of Skelton in his suit to get a line of duty disability
retirement.
He stated at the end of the hearing, the judge asked the if the
Board was there to argue whether or not Roy was mentally ill or to
argue whether or not it was a line of duty disability. Rose's
reply to the judge was that "Essentially, we are here to argue
about line of duty disability, and that we understood that we had
no contradicting evidence -- medical evidence -- anywhere in the
record that said anything different than what Roy had presented to
us." Rose stated that he thought this was true. There was only
two medical reports in evidence in the record -- Roy's doctor and
the doctor to which the defendant sent him who did not comment on
his emotional problem. Rose stated that he didn't think this would
prevent the Department from arguing on appeal, that the statutory
requirement of a medical report by the Fund's physician certify his
disability. This has not been waived and could still be argued on
appeal.
Rose stated that he can only approve the order in form and cannot
materially change the order. On appeal, you will get the chance
to argue that the evidence contradicts the judge's ruling. You do
not get to present any other evidence --only argue with the record.
Bonaduce asked if the Board could require Skelton be re-examined
periodically to see if he is fit for duty. Rose stated the judge's
ruling does not eliminate any rights the statute provides the Fire
Department.
Rose stated there are 30 days to appeal this ruling. He stated he
had talked with Mark Martin on the telephone, who has had some
experience in litigating psychological complaints such as workers
compensation complaints. Rose told Martin that Pete Reagan had
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been wanting Rose to get in touch with him. He committed to
assisting in research, assignment of lawyers or clerks, he would
even write the brief and give it to Rose to sign, and ghost-write
if that is what is needed. He did not mention a fee, and it is not
known if this was meant in a gratuitous manner or not. Rose stated
that at least a token fee, if Martin is chosen to help in the
litigation, would be appropriate.
Dill stated that he would not want Martin to take over this case;
however, he would not mind having him assist.
Jackson asked if any new evidence could be introduced.
Rose explained to the Board that no new evidence could be
introduced in the appeal process. If it is decided to contradict
a statement of fact that is in the transcript, it has to be proven
to the Appellate Court on the basis of the record on appeal. Rose
will have to prove that there is no competent evidence in the
record to support the judge's finding. This is a very high
standard. The odds, going into an appeal, are against you for this
reason. Rose stated that the appeal process should cost the Board
no more than $1000.
Rose stated the primary problem was the way the line of duty
disability statute was written. The judge in this case was allowed
through the statute to substitute his opinion for that of the
Pension Board's in deciding if Skelton's injury, or disease in this
case, was received on the job which would make the retirement fall
under the definition of line of duty disability. Rose stated most
of these types of cases are set on a different standard. The judge
normally has the responsibility of deciding whether the decision
the Pension Board made was arbitrary and capricious rather than
exchanging his opinion for theirs regarding the retiree's
disability. Rose stated this statute needs to be amended to change
the judge's responsibility in these types of cases.
Reagan, seconded by Bonaduce, made a motion to appeal the Court's
decision in the Roy A. Skelton case, with City Attorney Rose as
legal counsel in behalf of the Fire Department.
Reagan asked to amend the motion to include the consulting services
of Mark Martin, rendering suggestions to Rose as needed. Bonaduce
agreed to the amendment to the motion.
Upon roll call, the motion was approved by a majority vote.
ADJOURNMENT
The meeting was adjourned at 2:34 p.m.