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HomeMy WebLinkAbout1991-02-08 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 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 • 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.