Finding he was ‘unjustifiably discriminated against? by the Oxford Public Fire and EMS Commission, a judge ruled April 8 that former Police Chief Gary Ford is entitled to $40,006 in previously-denied retirement benefits plus interest.
However, Administrative Law Judge Elizabeth R. Schwartz’s 32-page proposed decision is a recommendation that must still go before the Municipal Employees Retirement System board.
Schwartz is the same judge who in February 20002 recommended Ford be denied disability retirement from MERS. The retirement board agreed with her and denied the claim May 8, 2002.
OPFEC has until May 5 to file objections and Ford’s attorney has 14 days to comment on those objections after receiving them.
After all this, the retirement board will review everything and issue a final decision in the case.
Ford was denied his request for a $40,006 lump sum refund of his accrued retirement benefits on August 19, 2002. He appealed the decision at a Nov. 19, 2002 hearing.
According to her proposed decision, the judge ruled in favor of Ford because of the circumstances surrounding OPFEC’s selection of Jan. 31, 2000 as the eligibility date for former Oxford Police Department employees? to receive either a rollover or lump sum refund of their accrued retirement benefits.
Her ruling also favored Ford’s appeal because two former police officers whose employment status on Jan. 31, 2000 was similar to the ex-chief’s were permitted to obtain their accrued benefits.
Why Jan. 31, 2000?
OPFEC argued that Ford wasn’t entitled to a lump sum refund of his accrued retirement benefits because his employment with the department terminated on Dec. 31, 1999, when his contract expired and the Commission chose not to renew it.
According to the October 2000 Separation Agreement between OPFEC and MERS, which was designed to terminate the commission’s retirement plan for the former police department, only police MERS members who were employed up to and including Jan. 31, 2000 were eligible for the lump sum refund or rollover of accrued benefits.
Jan. 31, 2000 was the day the joint township-village police department was officially dissolved.
Schwartz had a number of issues with how and why the Commission arrived at this date as the eligibility requirement for the retirement benefit options.
For instance, the judge noted a ‘material misstatement? in a Dec. 22, 1999 letter to MERS General Counsel Michael Moquin from village Clerk Rose Bejma, then-assistant treasurer to OPFEC.
Bejma had written that the Commission met on Dec. 20, 1999 and decided that ‘police services are to be discontinued? and set a ‘target date for (MERS) plan termination of the police department component at Jan. 31, 2000.?
‘However, the official minutes of that meeting. . .do not reflect either of these actions she recites in her Dec. 22 letter,? Schwartz wrote. ‘Instead, they reflect the contrary ? the unanimous passage of a motion to adopt (a MERS motion) for the police department ‘at such time and if there is termination of the police department.??
The judge wrote that the official meeting minutes also indicated ‘a 7-3 rejection of a motion to request that MERS use a termination date of Jan. 31, 2000.?
The judge also indicated she didn’t understand why Dec. 31, 1999 was not used as the date.
‘Considering the circumstances that precipitated the termination. . .including the loss of police funding as of Dec. 31, 1999 (when the millage expired), it is curious why that date did not become the date of termination for both the police service and the retirement plan. As previously observed, the Commission initially intended to do just that, according to the information it provided. If, why, how and when it changed its mind is not explained byt he testimony, or by any evidence in the record,? Schwartz wrote.
‘I have found, as a fact, that the unverified Commission action that is alleged to have made employment on Jan. 31, 2000 a condition to eligibility to elect the (retirement benefit) distribution options made available in connection with termination of its MERS retirement plan, was not shown to have been regularly taken, on a demonstrably rational basis, and that it unjustifiably discriminated against (Ford),? Schwartz wrote.
The judge also noted that ‘the political animus behind the Commission’s opposition to (Ford’s) claim is apparent from the whole record,? citing an Aug. 16, 2002 e-mail from then-Commission Chairman Steve Allen to MERS as the ‘most recent example.?
Allen’s e-mail stated that OPFEC would ‘oppose? Ford being paid his accrued retirement benefits. The message also warned of a backlash of public opinion if the ex-chief were to be paid.
‘Due to the circumstances surrounding Mr. Ford’s activities, an action such as this will create a public fervor the likes of which you have never seen,? Allen wrote.
Schwartz noted Allen’s e-mail ‘suggests a political purpose to foreclose (Ford’s retirement benefit) option, on account of some unspecified public opinion.?
In light of Allen’s e-mail and other parts of the record, Schwartz concluded that ‘the possibility that the process taken by the Commision to terminate its retirement plan, characterized as it is by confusion, delay and inaction, was influenced by some undisclosed perfidy, cannot, in light of the entire record, be dismissed.?
‘The (judge) here thought that we kept (the police department) going solely to deprive (Ford) of (his retirement benefits), which candidly isn’t the case,? said OPFEC attorney Steve Gross.
Gross said the proposed decision’s ‘inference? is that using the Jan. 31, 2000 date in the Separation Agreement was a ‘political way. . .to get Mr. Ford.?
‘Which wasn’t the case,? he said. ‘That’s the date we stopped operating the police department. Nobody was even thinking about? using it as a way to deprive Ford of his benefits.
It’s interesting to note, that up until Allen’s e-mail to MERS, Ford was going to be paid his accrued benefits.
An October 20, 2000 letter from MERS to Bejma listed ?20 active police officers whose service was terminated on Jan. 31, 2000.? Ford’s name and the amount of his accrued benefits was listed in the letter.
On Nov, 2, 2000, Ford received a letter and application from MERS indicating his eligibility for either a refund or rollover of his $40,006. The application clearly stated that ‘Participant Gary L. Ford was employed by the Oxford Police Fire and Emergency Services Commission when the police functions of the Commission ceased operations on Jan. 31, 2000.?
The ex-chief requested the refund on Nov. 10, 2000, however, the claim was put on hold due to his request for disability retirement.
After his appeal for disability retirement was denied by the MERS board on May 8, 2002, Ford renewed his request for the refund of his accrued benefits on Aug. 13, 2002.
On Aug. 14, 2002, MERS General Counsel Michael Moquin stated that the refund was ‘appropriate.?
However, after reading Allen’s Aug. 16 e-mail, Moquin sent an Aug. 19, 2002 e-mail to the then-Chairman ‘reversing his previous approval of refund, with explanation of a mistake.?
That same day MERS sent a letter to Ford’s attorney stating he was not eligible for the refund because per the Separation Agreement his employment by the Commission ended prior to Jan. 31, 2000. In that letter, it’s explained that the reason Ford was originally listed as an active employee on Jan. 31, 2000 was due to ‘erroneous census data provided to MERS by the Commission, in the course of winding up participation of the police division in the MERS retirement system.?
Unequal treatment
At the same time OPFEC denied Ford his legal right to his accrued retirement benefits, it granted them to former police officers Mark Moine and Anthony Martin.
Moine, whose employment with the former police department ended on Dec. 31, 1999 (the same day as Ford’s), was allowed to elect the rollover option for his $1,093 in accrued benefits.
Martin, whose employment status on Jan. 31, 2000 ‘remains ambiguous,? was permitted to elect the lump sum refund of his full accrued benefits in the amount of $22,029.
When the judge questioned MERS legal counsel Tom Petroni and OPFEC counsel Nicole Cady as to why these to two officers were permitted the distributions of their benefits, she was told their payments were a mistake.
‘I would also like to point out that (Martin and Moine) were paid prior to the discovery this past August (2002) that a mistake had been made (with regard to Ford),? Cady told the judge. ‘It was just then realized that these people were included when they shouldn’t have been included. Mr. Ford’s application (originally filed Nov. 10, 2000 and renewed Aug. 13, 2002) was being pushed back because of other pending proceedings, and (Martin and Moine) had submitted their forms immediately after they received them (in November 2000). So, there wasn’t that gap of time for the (Commission) to figure out that they should not have been included.?
Schwartz asked Cady if OPFEC had ‘attempted to recover those funds??
Cady replied, ‘That I don’t know the answer to, but I can find out.?
‘I would like it if you could find that out before the case is concluded,? Scwartz said to Cady.
The proposed decision stated, ‘The requested information was never provided.?
At last Wednesday’s OPFEC meeting, Commissioner Jerry Dywasuk inquired as to why that information was never submitted.
Gross told him it was because ‘the commission never did attempt to get Mr. Martin and the other officer to disgorge or pay back the benefits they were seeking? therefore ‘there was nothing to furnish? the judge with.
In her proposed decision, Schwartz found that the denial of Ford’s application was ‘substantially different from the treatment it gave to the applications of similarly situated members? of the MERS retirement plan and ‘that the difference was not justified.?
In fact, the judge found that Ford was ‘similarly situated to all the other active employees (not just Mr. Martin or Mr. Moine) but for the effect of the date Jan. 31, 200, in the Separation Agreement, a date which has not been shown to be a properly set plan termination date.?
‘Based on the Separation Agreement we would have had a good case,? Gross told the board. ‘But shortly before the documents were submitted, we learned that the board ? unbeknownst to any of the attorneys ? had given the requested benefits to Officer Martin and another officer, who were similarly situated to Mr. Ford, which basically made it almost impossible for us to take the position that he wasn’t entitled to it.?
Gross told the board Ford was ‘discriminated against,? which OPFEC ‘cannot do whether he’s a criminal or whatever.?
‘Everybody has to be treated the same,? Gross said.
‘It was my belief and recommendation when this first came up that we not spend any attorney money and time opposing it,? Gross reminded OPFEC. ‘But this board saw fit that it wanted to deny Mr. Ford the same opportunity that it afforded all the other prior members (of the police retirement plan).?
What’s next?
The Commission has until May 5 to file it’s ‘exceptions? (or objections) to the proposed decision.
‘I would not invest anymore of the commission’s or the community’s attorneys fighting this,? Gross told officials. ‘I just see this as a complete waste of time.?
Based on what he read in the judge’s proposed decision, Gross said, ‘I don’t know that there’s much here we can take exception to.?
The attorney noted the commission can only take exception to the facts outlined in the decision.
Having his firm ‘spend a lot of time on this? would ‘not be a sound idea,? Gross told the board.
Allen agreed, suggesting OPFEC not ‘spend any more time or energy fighting? this because MERS ‘will do what they want to do anyway.?
However, Allen said he would like to see the ‘record set straight? because there were ‘some things? and ‘allegations? in the judge’s proposed decision that ‘don’t seem quite right.?
For instance, in the ruling, it was stated that ‘unrebutted testimony’from Ford’s disability hearing indicated there were ‘numerous grievances and civil actions against him, as well as false charges which, upon investigation by the Attorney General and County Prosecutor, produced no sanctions or conclusion of improper activity.?
Ford is currently facing three felony charges and one misdemeanor charge in a criminal trial scheduled to begin May 19 in Oakland County Circuit Court.
It also appears that Ford is currently the target of a federal grand jury investigation.
Allen was also displeased with the ‘assumptions? and ‘accusations? that OPFEC did not take the ‘correct action? when choosing the Jan. 31, 2000 date.
He said it was ‘done specifically? because of ‘fears? that if the department closed on Dec. 31, 1999, when the police millage expired, there would be no one to police the community in case ‘Y2K? caused ‘chaos.?
‘We wanted to make sure there were police on duty that night, just in case something happened,? Allen said.
OPFEC Chairman Bill Dunn said Gross will be filing some exceptions on behalf of the Commission, such as noting that Ford is facing a criminal trial.