HomeMy WebLinkAbout2007-02-22 MinutesFiremen's Pension and Relief Fund Board of Trustees
Meeting Minutes
February 22, 2007
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Firemen's Pension and Relief Fund
Meeting Minutes
February 22, 2007
A meeting of the Fayetteville Firemen's Pension and Relief Fund was held at 11:00 AM on
February 22, 2007 in Room 326 of the City Administration Building
Mayor Coody called the meeting to order
Present: Mayor Coody, Marion Doss, Marshall E. Mahan, Gene Warford, Ron Wood, City
Clerk Sondra Smith, City Attorney Kit Williams, Chief Johnson, Paul Becker, Amber
Wood, and Trish Leach, Accounting.
Absent: Pete Reagan
Approval of the January 18, 2007 Meeting Minutes:
Marion Doss: There is one statement on page two that is accredited to me that I don't believe I
said but it is no big deal.
Sondra Smith: Which one is it?
Marion Doss: The one that says " I see you looking at Pete, was he your guy?" I think the
Mayor said that.
Mayor Coody: Yes.
Sondra Smith: Okay.
Marshall E. Mahan moved to approve the January 18, 2007 Meeting Minutes. Gene
Warford seconded the motion. Upon roll call the motion passed 6-0. Pete Reagan was
absent.
Approval of the Pension List:
Approval of the March, 2007 Pension List
Mayor Coody: Are there any changes to the Pension List?
Sondra Smith: No changes.
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Meeting Minutes
February 22, 2007
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Marion Doss moved to approve the March, 2007 Pension List. Marshall E. Mahan
seconded the motion. Upon roll call the motion passed 6-0. Pete Reagan was absent.
New Business:
Election Results
Mayor Coody: Gene Warford congratulations and welcome to the club.
Gene Warford: Thank you.
Current List of Board Members — Informational
Mayor Coody: Who all is on the board now since we have Gene Warford?
Marion Doss: Gene and Marshall are the new ones.
NCPERS Conference Discussion
Sondra Smith: This is the NCPERS conference that someone normally goes to from this board
every year. This year it is in Hawaii.
Mayor Coody: I get to go.
Sondra Smith: You can if you want to. So we need to discuss this and see if we are going to
send someone because it will probably be rather expensive.
Mayor Coody: Will money come out of the retirement fund?
Sondra Smith: Yes.
Mayor Coody: It is already strapped.
Sondra Smith: I put some in there for a conference but I don't know if I have enough to send
someone to Hawaii.
Mayor Coody: Why would they do it at Hawaii?
Sondra Smith: They always do it at nice spots. Last time it was in Florida.
Mayor Coody: At least you can get to Florida.
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Meeting Minutes
February 22, 2007
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Marion Doss: How much was the total cost last year?
Sondra Smith: I want to say it was about $3500.
Ron Wood: My question is "what's the gain?"
Marion Doss: Is it worth the cost I guess is what Ronnie is saying.
Sondra Smith: Pete is the one that normally goes so you would have to ask him.
Marion Doss: I think we need an estimate of what it would cost this year.
Mayor Coody: I think the reaction is going to be is it good to go on these trips.
Sondra Smith: That's up to the board. Last year it looks like the cost was $3,382.39 and it was
in Fort Lauderdale, Florida.
Mayor Coody: That's an expensive conference. How many people went?
Sondra Smith: One.
Mayor Coody: How many days?
Sondra Smith: I think was four or five days.
Mayor Coody: That makes the US Conference for Mayor's cheap.
Sondra Smith: The trip was May 5th — 12th that includes traveling days. The cost was
$2,490.54 the year before and it was in Las Vegas.
Kit Williams: For this you are probably looking at $5,000.
Sondra Smith: I figure at least $5,000. I think we put in the budget about $3,000 for this trip.
Mayor Coody: It comes out of the pool of money that people draw retirement from?
Sondra Smith: Yes, there is no other place for it to come. Let me see how much is in there.
Kit Williams: I think the entire board needs to go.
Mayor Coody: At that price you would think they could.
Marshall Mahan: My wife won't let me go without her.
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Meeting Minutes
February 22, 2007
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Sondra Smith: We don't know when we do the budget where the conference is going to be.
This year we put $3,600 in the budget.
Kit Williams: It is still up to the board to make a decision one way or the other.
Sondra Smith: Yes.
Mayor Coody: When do we need to decide this?
Sondra Smith: The conference is in May.
Marshall Mahan: I thought the application says it is due by April 22.
Sondra Smith: We could probably wait until March. Pete sent an email that he couldn't be here
today and that he would like to go.
Marshall Mahan: April 27th is the application deadline.
Kit Williams: If someone is going you would want to know early enough to get cheaper tickets.
Mayor Coody: If you guys want to spend the money. It doesn't look good to spend that kind of
money when we are $10 million bucks in the red?
Sondra Smith: We can either put it on the next agenda or we can just go ahead and vote on it
today and make a decision.
Mayor Coody: I would just soon. I won't be any crazier about it next month than I am now.
Any one else have any comments.
Marshall Mahan: It would be hard to explain why we couldn't give a 3% cost of living raise to
retirees but yet we can spend $5,000.
Mayor Coody: On sending someone to Hawaii. Is that a motion?
Marshall E. Mahan moved to not send someone to the NCPERS Conference this year. Ron
Wood seconded the motion. Upon roll call the motion passed 5-0. Gene Warford
abstained. Pete Reagan was absent.
Dennis Mullens wants his classification changed to disabled
Sondra Smith: I don't think there is anything we can do about it but Dennis asked me to bring
it before the board. The information is in your packet and it shows that he retired normally, it
wasn't a disability retirement. He submitted this letter that states due to his twenty years of
service as a full time firefighter he has diminished lung capacity. So he wants to be reclassified
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Meeting Minutes
February 22, 2007
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from regular retired to disabled retired. The way I understand it it helps him on his tax return. Is
that right Trish?
Trish Leach: His CPA is convinced that it will help him on his tax returns.
Sondra Smith: I have attached a copy of the minutes from the meeting where his retirement
was approved there is no mention in there of any disability at that point and time.
Kit Williams: That was 1988?
Sondra Smith: Yes, he has been retired since 1988.
Mayor Coody: Lung capacity gets diminished as we get older.
Sondra Smith: I have also attached a copy of his resignation letter from 1988 and there is no
mention in that letter of any disability.
Mayor Coody: Sounds like just a tax benefit.
Marion Doss: That is really what it is. If you remember about two years ago Dennis submitted a
letter from a doctor, and at that time he had a stroke, he has had other health problems since. I
think he is going to another doctor now because he told me he was going to the VA hospital. I
suggested that he send it to Sondra and I thought he would be here today to answer any
questions. We have his letter and it makes no difference on his pension and he says it might help
him on his taxes as Trish said. We can accept the letter and accept what the doctor says but I
don't know what weight that would have on the IRS.
Mayor Coody: When you leave that is when you get your classification as disabled if you're
disabled.
Sondra Smith: Yes.
Mayor Coody: Eighteen years after the fact? That just doesn't seem right.
Marshall Mahan: I disagree with that. I could retire healthy but two years down the road I
could come up with cancer or something and it could be contributed to something I became
exposed to fifteen years ago.
Mayor Coody: That is exactly right. Anybody that ever retires that ever gets sick for anything
could say well I need to be reclassified as disabled because potentially it was tied to the fire
service. Where do you draw the line?
Marshall Mahan: I don't know.
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Meeting Minutes
February 22, 2007
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Sondra Smith: From what I understand Trish has talked to PRB and they do not change
classifications after they are retired at all.
Trish Leach: We have also researched and there is a copy of the email that I sent Sondra. I
referenced IRS publication 525 which states that after the pensioner has reached the requirement
age, in our case it would be the minimum number of years that the pension payments are taxable
as pension income. We feel Dennis's CPA maybe wrong in what he is representing to him. We
talked to LOFFI and PRB and we don't think we can do what he is asking us to do from the IRS
point of view. He has been retired for almost twenty years.
Marion Doss: I am sympathetic to Dennis because of what they are finding out. Several years
ago people would retire from the Fire Department and we didn't realize there were a lot of lung
problems and cancer and different things that came up years later that were job related. I just
don't know what we as a board can do other that accept the letter and say we can't argue with the
doctor.
Trish Leach: Marsha also looked in the Municipal League book and if you retire as disabled
there are certain restrictions or requirements of the person that retired as disabled. They have to
meet with the doctor I think it was every six months. The idea being that if you retired as
disabled then you could only stay disabled until that minimum retirement age and then you are
considered retired. The doctor was to certify you if you were eligible to return to work or not. If
you are leaning toward doing this there is more research that we need to do. Personally I think
the CPA needs to get a ruling from the IRS that says that we can even make the change because
we don't feel like we can. It's a coding change on his 1099R.
Ron Wood: Marsha mentioned that two years down the road you may find out that you have
some kind of disease contributed to fire fighting would that actually go back to the pension? If
you were going to collect money on that would that person go back to the actual pension?
Trish Leach: I don't think he would be eligible for any extra money.
Paul Becker: What were the conditions under which he qualified for the pension? Obviously
everybody sympathizes with someone with this kind of medical condition caused by their
employment. The question is at the point that he petitioned the pension he couldn't petition the
pension on disability. Now we are talking about changing that classification. I don't think the
authority is there to do that.
Marshall Mahan: Can we table this and more research be done?
Gene Warford: Let his accountant show him where we have the authority to do this? If we
have the authority I have no problem in doing it.
Ron Wood: Sounds to me like his CPA needs to read some pension laws.
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Meeting Minutes
February 22, 2007
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Trish Leach: I have talked to his CPA over the phone once or twice and he feels very strongly
about his position and we feel very strongly about ours and we have spent a lot of time
researching.
Kit Williams: We need to hear something more than what his CPA believes. If his CPA wants
to present a formal report analysis to this board in writing signed by him as a CPA saying he will
get this benefit that's one thing. Secondly whether or not we have any power to do anything at
this point in time that is what concerns me eighteen or nineteen years after he's formally retired
and then go back and change it, what kind of confidence do we have to make that decision?
Marion Doss: I agree with Kit, I don't know that we can do that. Several years ago we had
another fire fighter that came back and requested disability retirement after the fact and the board
denied him, I don't know if that makes any difference. I'm like you I don't know if we have the
authority to do that or not. If the IRS has some kind of ruling and says "you can do this", that's
entirely different.
Gene Warford: I'm in favor of it but if they say we can't our hands are tied.
Ron Wood: It's not such a big deal to me as long as it doesn't cost the pension.
Mayor Coody: Anybody that retires that has anything wrong will come back and ask for
reclassification.
Kit Williams: The truth of the matter is we have certain duties and responsibilities to be truthful
with the IRS. We can't just say "well if this is going to help a member we are going to say what
ever they want us to say."
Gene Warford: The doctor is going to eliminate us. Is a doctor going to lie? I'm not going to
say they are. I'm not a doctor. That's the attorney's job.
Kit Williams: I know this doctor he used to be my personal doctor and I have a lot of respect
for him but this is a very short statement that he wrote.
Mayor Coody: Diagnosis.
Kit Williams: For example he says as a result of his twenty years of service as a full time fire
fighter (period). Then he says (new sentence) he has diminished lung capacity with an inhaler
explosion. Maybe he meant to put a comma in there to make that all one sentence but that is not
what he did in his letter. I don't know if we have enough information and I don't know if we
have any power. Maybe the CPA will want to appear at the next meeting with something signed
in writing before we go off and start trying to make a decision on some one who retired eighteen
or nineteen years ago.
Trish Leach: I think he should contact the IRS and get a ruling from them.
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Meeting Minutes
February 22, 2007
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Kit Williams: Yes, I would like him to do that so I will know we actually have the authority to
do this and what our standards are. Do we have to have an affidavit from the doctor?
Mayor Coody: We have a responsibility to be skeptical in favor of all the pensioners and the
fund. Honesty is the best policy and if there is any kind of question it has to be documented
verified. I don't want to any of us branded as being able to just bend the rules because we feel
like it.
Marshall E. Mahan moved to table to the March meeting. Ron Wood seconded the motion.
Upon roll call the motion passed 6-0. Pete Reagan was absent.
Old Business:
Appointment of Pension Board representative for the Baxter International lawsuit case
Kit Williams: The Alaska retirement fund dropped out when the judge denied our institutional
application to be joint class plaintiffs leaving only us. Alaska had a lot more losses than we did.
Our potential losses were only $13,000 and theirs was in the hundreds. The attorneys
representing us want to go forward and appeal the decision of this judge and if do so we certainly
need to appoint a pension board representative. This member would need to be willing to travel
to where the deposition or trial is being held and that might be Chicago. It probably should be
someone who has been on the board for a while because this happened a few years back. What
we need to be clear with the court about is the board doesn't make the decisions on what stock to
buy. That is made by our independent financial analysis person that we hire. For a while it was
Merrill Lynch and then it has been Elaine Longer with Longer Investments. So in reality the
board was never mislead by any statements that Baxter International might have made that
inflated their stock value. Maybe our financial analysis person was mislead. As the Mayor has
said we need to be straight forward with the court and make sure they understand exactly what
the situation was. At this point it's unsure whether or not we are going to be able to be the class
representative and our position has probably weakened because Alaska has dropped out.
Marion Doss: How can the attorney's afford to do this? When were talking about a $13,000
loss.
Kit Williams: The attorney's couldn't afford to represent us and us alone. If we were not class
representatives, where they would basically be representing not only us but everybody that lost
money, then all the sudden instead of $13,000 in potential recovery there would be millions.
Gene Warford: It's a class action lawsuit, right?
Kit Williams: That is what interests the law firm and in fact they have asked me to do another
declaration why we should go forward. I haven't done it yet but if I do it I will probably say the
board has fiduciary duties to all of your members to try to re -coup any losses that were sustained
improperly and that you can't do file this claim as a individual board because they are not going
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Meeting Minutes
February 22, 2007
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to represent us for $13,000. However they will represent us if we are a class representative
because then they will get their money not only from us but from everybody. They would get a
certain percentage from us. Assuming we win everything then we wouldn't recover the full
$13,000. We would have to pay some attorney's fees.
I need to know if the board is still interested in going forward at this time knowing that we are
the only ones involved. The benefit about going forward to some extent is institutional, if these
corporate insiders and officers lied about their anticipated earnings and were not forth coming.
They had two reasons to do it because they were acquiring another company with stocks and
they wanted to keep their stocks up high so that they could but this other company as cheaply as
possible. Secondly the insiders were selling their own stock during this period of time. So they
were allegedly misrepresenting their financial status of the company "puffin it up" selling their
own stock and then all of the sudden when the truth come out the stock took a dive. That is
when we had our $13,000 loss. I don't like to see improper behavior at least not in challenge and
of course only in court will you find out if all of this happened the way we believe it did. Maybe
they have explanations why they were doing what they were doing that are illegal.
I need to know if you want to continue as a sole representative or do you feel like it is taking too
much of your time and you don't want to mess with it.
Marshall Mahan: At this point in time we are the only organization involved in this class
action lawsuit?
Kit Williams: We are the only potential investor, the court required an "institutional investor"
and we meet that requirement according to our lawyers. Obviously there were big corporate
institutional investor's had bigger losses then we did who have not stepped forward. Of course
we would be helping them out as well as the small investors if we continue as the class
representative.
Marion Doss: From the fiduciary responsibly of it and since it won't cost us anything except
time from you and whoever we select, I guess we should go ahead and pursue that. Is that the
advice from you?
Kit Williams: I don't like to add more to my work load. I try to ignore that and just look at the
right and wrong of it and I think it is right to delve into this and see if in fact the allegations are
correct and that the insiders were doing the improper actions.
Mayor Coody: An outsider time factor wouldn't have much to lose.
Kit Williams: No.
Sondra Smith: Is that motion going to include an appointee at this time or are we going to wait
on an appointee?
Marion Doss: I would make a suggestion on an appointee.
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Meeting Minutes
February 22, 2007
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Kit Williams: That is to separate motions. This motion has to pass first. This is to continue the
appeal.
Marion Doss moved to continue the lawsuit. Marshall E. Mahan seconded the motion.
Upon roll call the motion passed 6-0. Pete Reagan was absent.
Mayor Coody: Do you want to make a motion on a representative?
Marion Doss: From what Kit has said it should be someone that has been on the board for
awhile. I would recommend Pete Reagan and not because he is not here.
Kit Williams: Has he indicated to you that he would be willing to serve?
Gene Warford: He indicated the opposite to me. He indicated that he couldn't because of other
obligations that he has.
Kit Williams: Let's wait and do this at the next meeting because we need to have someone who
can.
Marion Doss: I didn't realize that.
Gene Warford: After the last meeting we talked about this and he said he couldn't because he
has to be able to leave town in 24 hours.
Kit Williams: Someone on the board has to be willing to do it or we can't be the class
representative. I just want to let you know if we don't have someone willing to serve then we are
going to have to drop out.
Ron Wood: He is about the only one. I can't.
Mayor Coody: We have until the next meeting to get this answered?
Kit Williams: Yes.
Marion Doss: I appreciate you saying that Gene because I didn't know.
Pension Protection Act
Sondra Smith: This is the Pension Protection Act that Pete brought up.
Mayor Coody: Okay, yes this is an issue. I wish we had done this earlier.
Sondra Smith: We had a lot of important issues that you needed to be here for.
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Meeting Minutes
February 22, 2007
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Mayor Coody: You're right. It is my fault for coming in 15 minutes late. This has to do with
the added work load of the staff to try to get these individual programs to be pretaxed. The staff
has been talking to me for a while now and they have been loaded up with a whole lot of extra
work from this board and the Police Pension Board that they have volunteered to do. They are
having trouble maintaining what they have on their plate now. They are going to have to try and
find a way to shunt some of this stuff, to get out of the things they do now. To take on this work
load would be a big deal and we would almost have to hire another person specifically for the
work load that we are generating for the staff. Sondra do you have anything?
Sondra Smith: I think the main thing is Paul Becker that oversees the Accounting Department
said they do not have time to do it.
Paul Becker: We are not statutorily required to and the IRS doesn't require it. We really do not
have staff time to do it.
Sondra Smith: If you want to see about doing this, the only way we know of doing it is to hire
additional help for Accounting.
Mayor Coody: The pay for that additional help would have to come out of the fund.
Paul Becker: That is another problem. Since it actually doesn't benefit everybody in the fund it
couldn't come out of the fund. It would have to be taken up on an individual basis on the ones
that are interested. I just really think it is unfeasible at this point in time.
Mayor Coody: So if I'm a retiree and I want to have this pretax done I would have to pay the
staff time?
Paul Becker: Yes, that is the only way it could be done. We could not charge the fund because
it doesn't benefit everybody in the fund.
Mayor Coody: Okay.
Paul Becker: Like I said I don't think it is feasible. We don't have staff time to do it.
Ron Wood: Have we had much interest shown so far?
Sondra Smith: We haven't sent a letter out because we wanted to discuss it with the board first
because from what I understand Accounting was not going to have time to do this and the IRS
says we don't have to do this. I thought we were all under the understanding that we had to do it
and now we don't have to. Pete mentioned maybe putting a note in with the letter that we send
out on the 3% COLA. Mayor Coody chose not to do that because he wanted to discuss this with
the board first. We did not want the pensioners anticipating this and then maybe decide not to do
it.
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February 22, 2007
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Mayor Coody: If we had thirty or forty pensioners that said "yes I want to do this" then we
would have to tell them you can't do it unless you pay. We wanted to get this hammered out up
front before we get anybody stirred up.
Marion Doss: You are saying we would have to charge a service charge to the individual
requesting that?
Paul Becker: That is the only way I can envision doing it or we would have to see if an
employee would be willing to work overtime or extra to maintain it. We really don't have staff
time.
Mayor Coody: I wonder if the tax benefit would be worth paying somebody. It seems like it
would be a wash.
Paul Becker: I don't think it would be worth it but that is the only way we could really look at it
at this point.
Sondra Smith: It is only the first $3,000 of insurance premiums that could be pretaxed. If you
were paying $10,000 a year in insurance not all of that would be pretaxed it is only the first
$3,000. Am I correct on that?
Marshall Mahan: We have very few pensioners that are on city insurance.
Sondra Smith: It is not city insurance.
Paul Becker: This would not be city insurance. What this would do is provide so we could
deduct and make the disbursement for the insurance carrier.
Sondra Smith: If you had forty people on the board that was interested in this service and they
have forty different insurance companies, we would write forty different checks to forty different
insurance companies every month. It's not like we would write one check like we do to CIGNA
each month. We would also have to keep up with changes if they changed insurance.
Ron Rood: If I understand this right it is basically a tax saving to the pensioners.
Sondra Smith: Yes and then we would have to keep up only the first $3,000 of premiums. That
is all that we can pretax. So we would have to keep up with when they hit that $3,000 limit. If
their insurance was $10,000 only the first $3,000 would be pretaxed. The other $7,000 we would
continue paying to their insurance company but not on a pretax basis.
Marion Doss: I thought life was supposed to become simple when you retire.
Mayor Coody: No.
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February 22, 2007
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Sondra Smith: Since we have some new members. That is just a brief overview of what we are
talking about. We cannot attach to the city's insurance.
Marion Doss: This is something that we don't really know if there will be enough interest and
from what you say if there was interest we could pursue it then if there was a service charge to
that individual then they could say whether they wanted to do it or not.
Mayor Coody: The trouble is the more interest there is the more work it is.
Ron Wood: If they say they can't do it. They can't do it.
Marion Doss: Right.
Marshall Mahan: Can you send out informational letters saying that this service is available
but you're going to have to pay administrative fees.
Paul Becker: Before we consider doing that I would have to go down and see if anybody wants
to work on there own time to do it. We don't have city time to do it. I would have to find
someone who is familiar with it that would be willing to work additional hours to do that job. To
hire someone new to do it would be terribly expensive.
Marion Doss: I think we should just table it. The Mayor said he needs to be in a meeting and Kit
has left so we don't really have time.
Paul Becker: We can discuss it again but from my perspective it is not feasible.
Mayor Coody: Thank you guys. Appreciate you all.
Marion Doss moved to table to the March meeting. Ron Wood seconded the motion. Upon
roll call the motion passed 6-0. Pete Reagan was absent.
Longer Investments:
Equity Overage— Equity Allocation is at 52.1%
Sondra Smith: We have to vote on the overage every time Longer is over so we need to vote to
approve that equity overage. I don't know if the two new board members understand what we are
talking about. In our investment policy it states the equity ranges can be within 25% to 50%.
The board chose sometime last year if Longer Investments needs to go plus or minus 5% below
or above that range that they can with our approval. All we need to do is for them to let us know
how much over they went. This month it is 52.1 % so they are 2.1 % over the equity range. We
just wanted them to let us know each month and decide to vote on it to approve that equity
overage each month. If you do not have a copy of the investment policy that is what was passed
around for you to sign. If you would like a copy of it before you leave I will get you a copy. It is
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Meeting Minutes
February 22, 2007
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usually in with your investment report and it should have been in with your report last month.
You will be getting a copy once it is signed.
Marshall E. Mahan moved to approve the Equity Overage. Ron Wood seconded the
motion. Upon roll call the motion passed 5-0. Mayor Coody was absent during the vote.
Pete Reagan was absent.
Monthly Report
A copy of the Longer Investments Quarterly report was given to the board.
Sondra Smith: I have one other thing that I don't have on the agenda. If you remember last
year we moved to stop a pension check if we did not have an affidavit turned in by a certain time
frame. The only person that we have not received a Fire Pension affidavit back from is Gary Dill.
We sent him a couple of letters so I will call him and see if we can get that from him. If we do
not get it by March, I will have it on the agenda for us to stop his pension check.
Gene Warford: I talked to him yesterday. I know he is still alive.
Marshall Mahan: I'll tell him if he wants his check he better mail it to you.
Marion Doss: I'll bet if he misses a check he will be in here in a hurry.
Sondra Smith: We have stopped a check before. It is a hassle for Accounting but they did get
their affidavit in. It is very important because the affidavit states any beneficiary. If we don't
have that affidavit and someone deceases then we don't know who is supposed to get his pension
check or if he has been remarried or if he has children that are qualified to draw any pension
benefits. It is really important that we get it every year.
Trish Leach: I think every one agreed and we have it in the minutes that if the pensioner comes
in the day after we cut checks he will have to wait until the next pension check writing.
Marshall Mahan: I will probably see him tomorrow and I will remind him.
Sondra Smith: We sent out a couple notices. I try to call him.
Meeting Adjourned at 12:05 PM