In a letter to local businessman Erwin Jackson, who asked for the review, a State Attorney investigator wrote:

the City Commission’s decision to extend their employer funded deferred compensation program to include the elected Commissioners and all of the appointed officials as a retirement benefit revealed no evidence of a crime nor a criminal conspiracy on the part of the City officials, as all matters were publicly noticed and vetted through both the City Attorney and Treasurer in order to comply with the law.

The State Attorney’s investigation revealed new details about the deferred compensation program supported by the City Commission in 2005. Mayor John Marks and City Commissioners Andrew Gillum, Allan Katz, and Debbie Lightsey voted for the program while City Commissioner Mark Mustian was the lone dissenting vote.

The investigation revealed the program cost taxpayers more money than was originally disclosed and reported by local media. The original cost of the program for the elected officials was estimated to be $500,000.

However, with the revelation that the vote also impacted pension calculations for some elected officials, the cost of the program for taxpayers is closer to $900,000.

Of this amount, City Commissioner Debbie Lightsey, who voted for the program, will eventually receive approximately $350,000 in additional income due to the vote. Read our earlier report here.

In addition, the investigation revealed the implementation of the deferred compensation program for appointed officials -which is still in effect today – is contributed by taxpayers, not the employee. The amount of this contribution is the maximum allowed by IRS regulations. In 2015 this amount was $24,000.

What does this mean to taxpayers?

It means that the published salary of appointed officials does not tell the whole story. For example, documents show the salary for City Attorney Lew Shelley is currently $204,276. However, the deferred compensation plan adopted by the City of Tallahassee allows for an additional $24,000 benefit funded by taxpayers.

Also, when appointed officials retire their pension calculation includes the $24,000 deferred compensation as salary. Therefore, Mr. Shelley, if he retired in 2015, would have his pension calculated on $228,276 and not his salary of $204,276.

The total impact of this benefit for the four appointed officials is difficult to calculate, but an estimate easily exceeds a $1,000,000 since the vote.

How common is this benefit?

TR is in the process of verifying salaries and benefits for appointed officials in other comparable government jurisdictions.

The investigation also revealed that elected officials and city staff cleverly avoided the intent of the City of Tallahassee Charter through the ambiguities associated with the terms salary and compensation.

The City of Tallahassee Charter sets the salary of City Commissioner with the following language:

Each member of the city commission, except for the mayor, of the City of Tallahassee shall be paid an annual salary equal to one-half (½) of the annual salary set by state law for members of the Board of County Commissioners of Leon County, Florida.

The Mayor shall be paid an annual salary which shall be the same as that set by state law for the Chairman of the Board of County Commissioners of Leon County, Florida.

The Charter also defines the pension calculation:

The average base salary used in calculating the pension payment amount of a participant shall be the highest consecutive 130 bi-weekly period’s base salary divided by 60.

Despite this language, the State Attorney determined no laws were broken when the City of Tallahassee secured an additional and significant benefit for elected officials and appointed officials through the use of the deferred compensation program.

The State Attorney investigator told TR that his interpretation of the City Charter gave city staff the ability to develop a pension program for elected officials that was not constrained by the salary language in the City of Tallahassee Charter.

TR reported about the issue in March. Since then the City’s Independent Ethic’s Board took up a complaint but decided not to move forward because the complaint failed “to state a violation of the City’s Ethic Code.”

When presenting her recommendation to the Board, the Ethic Officer Julie Meadows-Keefe stated “No factual investigation preceded this review, and therefore this recommendation does not reflect on the accuracy of the allegations of the Complaint.”

At issue is the difference between the city commissioner salary as defined in the City’s Charter, which is approximately $36,000, and the salary that was used to calculate Ms. Lightsey’s monthly pension. The City used a salary of approximately $58,000 for the pension calculation.

Dr. Erwin Jackson, who filed the original complaint with the Ethics Board, told TR that he talked to Mr. Meggs about the issue a couple of weeks ago.

Meggs told the Tallahassee Democrat that he assigned an investigator to the case and wants to know why former city Commissioner Debbie Lightsey’s retirement benefit is based on a salary higher than what the city’s charter dictates.

The Ethics Officer, Julie Meadows-Keefe, recommended the compliant be dismissed “without investigation because it fails to state a violation of the City’s Ethic Code”.

When presenting her recommendation to the Board, Meadows-Keefe stated “No factual investigation preceded this review, and therefore this recommendation does not reflect on the accuracy of the allegations of the Complaint”.

And while the Board voted unanimously to dismiss the complaint, they also directed the Ethics Officer to provide more information about deferred compensation and to determine if the scheme impacted the benefits given to Lightsey and any other city commissioners.

Our previous report on this issue can be viewed here.

The complaint addressed the calculation of Ms. Lightsey’s monthly pension payment on a yearly salary of approximately $57,000 when the City Charter clearly states commissioner salaries were set at approximately $36,000.

The pension paperwork obtained through a public record request, shown below, indicates the three high salaries used to calculate Lighsey’s monthly pension payments. The salaries range from $56,158 to $59,792.

However, the pension paperwork is in conflict with the Lightsey’s salaries as recorded by the City’s Human resource department.

The City’s human resource department provided TR with the salaries for all city commissioners from 2000-2010.

For the years that Lightsey’s monthly pension payment was calculated, 2006-2008, the document below shows that the salaries for city commissioners ranged between $34,507 and $35,963, which is consistent with the City Charter.

Why was Lightsey’s pension calculated using higher salary numbers? Stay tuned.

The Executive Director of the Ethics Board, Julie Meadows-Keefe, provides a status of complaints and investigations each month. This months report, which is part of the agenda to be discussed during the May 17th Ethics Board meeting, includes a reference to an investigation into a complaint “regarding pension payments.”

Under the “Action Taken” category of the report, Ms. Meadows-Keefe wrote: “Met with citizen, accepted documents, review documents, contacted Board Chair, commenced preliminary investigation, consulted with legal counsel.”

TR has confirmed through sources that the complaint is about the monthly pension payments currently being made to former City Commissioner Debbie Lightsey.

At the heart of the complaint is the fact that former City Commissioner Debbie Lightsey is receiving a monthly pension based on an inflated salary. The annual salary of a Tallahassee City Commissioner is approximately $36,000 and is set by the City Charter. Documents show Ms. Lightsey’s pension was calculated using the annual salary of approximately $57,000.

You can read TR’s investigative report about the issue and see documents here.

The pension payments originated from the deferred compensation benefit that had been  in place for City Commissioners. After citizens raised questions about the practice, the Commission voted to terminate the benefit.

You can read several reports about the deferred compensation controversy here.

Ms. Meadows-Keefe, in documents provided to the Board, anticipates making a recommendation to the Board in June or July.

Mr. D’Alemberte, a lawyer, former politician, former president of FSU, and writer of the ballot initiative that created the Florida Ethics Commission, shared his thoughts on ethics in government. He stated he wasn’t sure if the creation of the Florida Commission on Ethics “was worth the effort.” He agreed it was a toothless tiger used by some to pursue political objectives.

D’Alemberte cautioned the city about creating a local ethics commission, but recommended increased financial disclosure. He said he believes in “wide disclosure” and commented that not much is required by the state of Florida.

He also recommended that an independent person should have a “comprehensive sit down” with elected officials about business relationships and what is expected.

Debbie Lightsey, who served as a city commissioner for 21 years, followed D’Alemberte and talked about how she had tried to increase disclosure requirements in 1998 because the state form “was a sham.” She was then, and is now, concerned about elected officials cashing in on land deals and undisclosed partnerships. She recommended disclosure forms that listed sources of incomes and were updated during the year to reflect new ownership interests.

Alluding to the Mayor Marks ethics issues, Lightsey stated that those with complicated financial relationships, such as lobbyists and lawyers, should be expected to disclose those relationships, despite client confidentiality.

The meeting concluded with a discussion about what financial forms are currently required, the impact of increasing disclosure requirements, and how the public can get access to financial disclosure forms.

The next meeting of the Ethics Advisory Panel is March 14^th, 2013.

Official Document Scans:

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The federal grant won by the city of Tallahassee was part of a program administered by the National Telecommunications and Information Administration (NTIA) with the goal to expand access to broadband services in the United States. The federal government provided $4.7 billion to NTIA to establish the Broadband Technology Opportunities Program (BTOP) to increase broadband access and adoption; provide broadband training and support to schools, libraries, healthcare providers, and other organizations; improve broadband access to public safety agencies; and stimulate demand for broadband.

The federal grant was secured by an application written and submitted to the NTIA by Carrie Blanchard, on March 13, 2010. At the time, she was the chief aide to Mayor John Marks.

After talking to sources, it has been determined that several documents have been turned over to the FBI because of concern about the relationship between Mayor John Marks and the vendors included in the grant application.

Sources indicate there are primarily three concerns. First it appears that the two vendors, Alliance Digital for Equality and Go Beyond were included in the grant application, which originated in the Mayor’s office, without a competitive bid process.

Second, Mayor Marks serves on the board of Alliance Digital for Equality and has received approximately $66,000 in compensation since 2007. And finally, Mayor Marks, on September 15, 2010, voted to partner with ADE without abstaining or disclosing his financial relationship with ADE.

On September 16, 2010 John Marks accepted the federal grant by signing a US Department of Commerce document that obligated the signer to follow specific federal rules. The federal rules the Mayor agreed to follow address how vendors are selected and the existence of potential conflicts of interest.

The federal rules state “all procurement transactions will be conducted in a manner providing full and open competition.” Sources indicate that no open competition existed for the awards given to Go Beyond and ADE. A search of Commission records revealed no evidence of a request for proposal addressing the program.

With regard to conflicts of interest, federal rules state the following:

“No employee, officer or agent of the grantee…shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when the employee, officer or agent….has a financial or other interest in the firm selected for award.”

Federal tax filings list Mayor Marks as an Alliance for Digital Equality board member and show that Mayor Marks was paid $19,000 in 2007, $24,000 in 2008 and $23,000 in 2009. The Alliance for Digital Equality website currently lists Mayor Marks as a member of their board of advisors. Sources tell Tallahassee Reports that Mayor Marks did receive payments from ADE in 2010.

Tallahassee Reports will post supporting documents related to this story on March 29^th at 4:00 pm.

UPDATE: 1:20PM EST
More on this can be seen in a video posted on WCTV. Watch it here.

Tallahassee Reports has learned that the elected City Commissioners are the only city employees who receive employer paid deferred compensation. The benefit afforded other appointed officials is consistent with the traditional understanding of deferred compensation. Depending on their age, the appointed officials are allowed to reap the tax benefits of deferring up to $21,999 of their own salary.

Bait and Switch

The fact that the City pays approximately $22,000 into the City Commissioners deferred compensation account is completely inconsistent with the language in the agenda item presented to the City Commissioners on April 13, 2005. The language is listed below:

Item 17: Voted 4-1 (Commissioner Mustian opposed) to approve pay adjustments necessary to bring the salaries of the City Manager, City Attorney, and City Treasurer-Clerk in line with the market, effective September 18, 2004 (Option 1), and to approve extension of the deferred compensation benefit currently provided to the City Manager and City Attorney to all members of the appointed/elected officials group, consistent with the City’s practice of providing a common set of benefits to all members of a compensation category, effective September 18, 2004 (Option 2) (as recommended by Human Resources).

Nowhere in the above language is it written that the elected City Commissioners will receive employer paid deferred compensation. In fact, it clearly states that the benefit will be what is currently provided to the City Manager and City Attorney – which is an employee paid benefit program.

City Charter Violation

Further research has raised the real possibility that the City Commissioners violated the City Charter by voting for an increase in their compensation. The City Charter states the following:

Each member of the city commission, except for the mayor, of the City of Tallahassee shall be paid an annual salary equal to one-half (1/2) of the annual salary set by state law for members of the Board of County Commissioners of Leon County, Florida.

The Mayor shall be paid an annual salary which shall be the same as that set by state law for the Chairman of the Board of County Commissioners of Leon County, Florida.

Commissioner Mustian raised the point that the deferred compensation plan should be handled through a Charter amendment. However, the City Attorney, Jim English, told the Commissioners the Charter only restricted salary, not retirement benefits. The final vote was 4-1, with Mustian voting against.

The violation of the City Charter would seem to hinge on the difference between “employer paid deferred compensation” and the term used for appointed officials “deferred compensation.”

It would appear that the language clearly states that the elected Commissioners voted themselves an increase in employer paid compensation, contradicting the language in the Charter. In fact, the vote on the additional compensation was a benefit that no other city employee receives.

Financial Implications

Tallahassee Reports requested benefit information for the elected officials and completed an analysis which reveals the financial impact of the change in policy resulting from the implementation of Item 17.

For the period from 2003 to 2009, the cumulative benefits afforded the elected City Commissioners changed from the annual amount of $26,000 in 2003 to $126,000 in 2009. This an increase of approximately 384%.

Due to the vote on Item 17, during the period from 2004-2009, the citizens of Tallahassee have paid approximately $500,000-$600,000 more in benefits to the elected City Commissioners.

This is what we know:

1. The benefit was passed on April 13, 2005 by a 4-1 one vote.
2. Those who voted for the benefit were Marks, Gillum, Katz, and Lightsey. Mustian voted against the measure.
3. The language included in the item produced by city officials states the option was described as “approve extension of the deferred compensation benefit currently provided to city manager and city attorney to all elected and appointed officials.”
4. The vote made the action retroactive to September 2004.

Based on this information, Tallahassee Reports has submitted another data request seeking further clarification.

The salary of City Commissioners has been discussed in public for many years. Since the installation of the full-time Mayor position, the salary of the four part-time Commissioners was set at $36,000 per year and the Mayor receives $72,000 per year.

On top of that however, the data request indicates that each City Commissioner receives some additional perks. First, each City Commissioner receives an annually  “employer paid deferred compensation” payment. The payments are $16,499 for Commissioner Gillum, $21,999 for Commissioners Katz, Lightsey and Marks, and $22,219 for Commissioner Mustian. 

Tallahassee Reports has confirmed this payment is in addition to their salary and that the money can only be accessed after the Commissioners cease to be city employees.

Additional perks for each Commissioner include a $3,000 a year car allowance and an annual City Commission Benefit Allowance of $1,315.

The public record request also indicates that all City Commissioner positions are eligible for the general employee benefits which include flexbucks, totaling $1,968 annually, city contribution toward the annual cost of health insurance, $9,111 for Family or $7,534 for Two-Party, city contribution to a 401K plan – 5% of eligible earnings, and enrollment in the City’s pension plan.

If my math is correct, a part-time Commissioner receives close to $70,000 in annual benefits and the Mayor receives close $106,000.

Commissioner Lightsey commented that the City should wait and conduct further research into the various options available, as well as consider any possible future taxes and offsets before launching into an RFP process for any new energy projects.

She defended the customer base saying that the customers already pay higher rates because of the various carbon reducing programs and that adding any further projects without some sort of offset would be “a very very hard sell.” She would later say that City is “already very clean” and that at some point “someone’s got to speak for the customer base.”

The video showcases her comments in their entirety.

You can view the slide presentation here.

Among the facts revealed are:

• The City of Tallahassee has a Carbon Reduction Task Team that investigates the feasibility of implementing policies that reduce carbon emissions in Tallahassee.
• EPER is charged with tracking how the carbon footprint of Tallahassee compares to other municipalities.
• The City of Tallahassee ranks in the top 10 of cities in the United States with the lowest CO2 emission rates.
• The City of Tallahassee’s electric utility has the lowest carbon emissions per MegaWatt hour of power produced in the state of Florida.

The dialogue between the City Commissioners that followed was started by Mayor Marks. The  Mayor commented that  “Tallahassee needs community input on which direction to head on these issues.”

Commissioner Katz followed with the idea of putting out a request for proposal (RFP) for a “solar panel farm” and Commissioner Gillum continued with a view that reducing our carbon footprint was the way to go given the number of alternative energy projects that are looking for support these day.

Commissioner Lightsey had a different view.  She argued that these alternative power projects will increase our already high rates. She was concerned about how higher rates would impact consumers. Mayor Marks responded by saying “this  is why we need community input.”

Mayor Marks also hinted that a structure was being set by the EPER department to facilitate a community dialogue on these issues.