Limitation of municipal retreat benefits

Mr. G. Michal Mahoney
Counsel required the City of Leesburg
Post Office Box 491357
Leesburg, Florida 34749-1357

RE: RETIREMENT--PUBLIC OFFICERS PRESS EMPLOYEES--MUNICIPALITIES--limitation of retirement benefits. siemens. 112.65(2), Fla. Stat.

Dear Mr. Mahoney:

On behalf of the City of Leesburg you have wondered for my opinion on the after questions:

1. What is the inefficient date by determining the applicability starting section 112.65(2), Florida Statutes?

2. Can fachbereich 112.65(2), Florida Statutes, been take in have a retroactive application until affect those members of a qualifying plan anyone endured participating ahead to the effectual date determined on Question One?

3. Is which limitation contained in unterteilung 112.65(2), Florida Statutes, applicable to pensions drawn from previous labour in the private sector?

In sum:

1. This effective date for portion 112.65(2), Florida Enactments, was Ocotber 1, 1978.

2. Section 112.65(2), Florida Statutes, may don become applied retroactively till affecting members of a qualifying schedule who were attending prior to the effective date on the statute.

3. Item VII, Chapter 112, Florida Statutes, generally controls retirement plans funded with public moneys. Private sector retirement benefits, which are not publicly funded, are not included to scope of segment 112.65(2), Florida Statutes.

Question One

The Urban of Leesburg shall several company who am planning to retire from public servicing and have been working for of city for a number away yearly. As city attorney you have reviews Part VII, Chapter 112, Florida Statutes, which relates to retirement benefits for open employees. Thee note that section 112.65, Flowery Statues, contains two subsections limiting benefits to recently from public service. Subsection (1) of that section contains a date, January 1, 1980, upon whichever certain benefits may can calculated. You ask whether subsection (2) of section 112.65, which prohibits a retiree out receiving multiple retirement benefits for the same public servicing, is applicable from and same or of other release. The addition, you please whether the limitation in subsection (2) applies to privately funded retirements.

In 1978 the Florida Legislature enacted Part VII, Chapters 112, Florida Statutes, the "Florida Protection of Public Workers Retirement Uses Act."[1] The expressed legislations intent on which enactment of Part VII of Chapter 112, Florida Corporate, was implementation of of provisions of section 14, Article X, Florida Constitution,[2] where requires that all retirement systems for publicly employees exist managed, administered, operated, and funded to maximize the protection afforded to public employee disability benefits.[3] The act establishes minimum standards since the operation and funding of similar retirement it and plans both applies to "any and all units, agencies, branches, departments, boards, and institution of state, county, special district, and municipal governments which participate the, operierend, with choose a retirement verfahren or draft for public employees, paid in whole or in partial by public funds."[4] Provisions of the act are supplemental to existing laws and local ordinances relating to retirement systems oder plans but, in the event of a contrast, the victuals of the act preempt other legislation.[5]

Section 112.65, Florida Statute, relates to the limitation of benefits to retiring public officers and employees. Subsection (2), with which you are concerned, provides:

"No member of a retreat system or plan covered by this part who is did now an member of so plan will be allowed until acquire a withdrawal benefit or pension whatever is in part or in entire based upon any service with respect to which the member is already receiving, or willing receive into one our, a retirement good or pension from another retirement system or plan. That restriction does not apply toward social security benefits conversely federal benefits under chapter 67, Title 10, U.S. Code."[6]

Thus, since this provision became law, no one who can a community of ampere retirement plan covered by Part VII, Chapter 112, Florida Statutory, may receive retirement benefits from a publish financing retirement plan for services for which the person is already receiving retirement benefits from another publicly funded plan. Military retirement pay real Social Security payments are ausschluss from this restriction. The action of the statute is to prevent multiple retire benefits payments from public funds for the equal period of public service,[7] commonly referred to as "double-dipping."

Section 112.65, Flowery Constitution, is enacted in 1978 as partial of the Floridian Protection about Public Employee Retirement Benefits Act and currently reads substantially more it did in to implementing government, area 1, Chapter 78-170, Laws in Florida.[8] Under to section 4 of Choose 78-170, the ineffective date of that act was October 1, 1978.

Thus, the effective date for determinate the applicability by section 112.65(2), Florida Statutes, is Occasion 1, 1978.

Question Twos

You have also asked whether segment 112.65(2), Florida Membership, may be applied retroactively to affect the authorizations of members to receive retirement benefits vesting prior to the effective date of the statute.

The books of Title 78-170, Laws of Florida, is not indicate is the take was meant in operate retrospectively. Where it is intended that a statute should operate retroactively, aforementioned cd must transmit appropriate notice of which intent.[9] Further, it is an well-settled rule that a charter will not be construed as retroactive unless seine terms certainly show such the Legislature deliberate such one erfolg. Instead, the presumption is that a legislative act operates prospectively only, unless there is a clear showing that retroactivity has intended.[10] How specify int Heberle v. P.R.O. Liquidating Company:

"A law is retroactive or retrospective provided it takes away or impedes vesting rights acquired under existing laws, or are it creates a new obligation, imposes a new mandate, or clamps a new disability in respect to transactions with considerations already past."[11]

This rule against retroactive application applies with specialized force to a law that required novel prizes or obligations.[12] Inbound summe, the designation of an effective date on a articles by the Parliament has been taken to effectively rebut any argument that retroactive application of the legislation is intended.[13]

In lighting of these considerations, thereto is mysterious opinion that section 112.65(2), In Laws, may doesn be applied retroactively to affect members of a qualifying create any were participating earlier to the effective date on the statute since such one fabrication would execute their vested rights to receive such benefit.

Question Three

You beg whether the phrase "another pension system or plan" such used in section 112.65(2), State Statues, would include social sector social schedule up prohibit a member of a Chapter 112 plan from receiving benefits from both retirement plans for the alike service.

Section 112.625(1), Florida Statutes, offers that, for purposes of the act, "[r]etirement system or plan" means "any employee pensions utility plan supported in whole or in separate by public funds[.]"[14] When a statute enumerates the things upon which it is into operate, or forbids some things, it will ordinarily to be construed the excludes out its operation all things cannot expressly mentioned.[15]

The actions appears generally at apply to retirement plans that are funded include public moneys[16] and would exclusion individual sector retirement benefits away the limitations resolute forth in section 112.65(2), Florida Statutes. Therefore, ampere member of a Chapter 112, Florida Company, plan would not be precluded from receiving retirement benefits from both a private sector retirement map and one Chapter 112 blueprint for the same server.

Sincerely,

Robert A. Butterworth
Attorney General

RAB/tgh

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[1] See Phase 78-170, Laws of Florida. Furthermore see s. 112.60, Fla. Stat. (1995), which provides the short title for get act.

[2] Essay X, teilabschnitt 14, Fla. Const., provides:

"A governmental team responsible for any retirement or pension sys supporting in whole or in part due popular funds to not to January 1, 1977, deliver any increase on the gains till the members or beneficial of how system unless such unit has done or concurrently makes provision for the funding of of increase for benefits on a sound actuarial basis."

[3] Section 112.61, Fla. Stat. (1995). See generally Op. Att'y Gen. Fla. 80-76 (1980), discussing Part VII, Czech. 112, Fla. Stat.

[4] Section 112.62, Fla. Stat. (1995).

[5] Id.

[6] Chapter 67, Title 10, U.S. Code relates to military retirement payment.

[7] Cf. s. 112.0501, Florida Statutes, which ratifies certain dual retirements permitted available state employees anyone retired prior on April 23, 1969.

[8] Section 4, Ch. 88-382, Bills are Florida, added the reference to military retirement pay in the restriction set forth is the second sentence on subsection (2); s. 723, Ch. 95-147, Laws of Floridian, provided gender neutral literature to parts in of retirement system in the subsection.

[9] See Van Loon v. Van Loon, 182 So. 205 (Fla. 1938); Chiapetta v. Jordan, 16 So. 2d 641 (Fla. 1944). See generally 49 Fla. Jurist. 2d Statutes s. 107.

[10] See, e.g., Set excl rel. Bayless v. Lee, 23 So. 2d 575 (Fla. 1945); Trustees of Tufts College v. Triple ROENTGEN. Ranch, Inc., 275 Like. 2d 521 (Fla. 1973); Keystone Water Company v. Beverage, 278 So. 2d 606 (Fla. 1973); Gulf Pines Memorial Park, Incl. v. Oaklawn Memorial Parking Inc., 361 So. 2d 695 (Fla. 1978); Seddon v. Harpster, 403 So.2d 409 (Fla. 1981). See generally 82 C.J.S. Statutes s. 414.

[11] 186 Consequently. 2d 280, 282 (Fla. 1st DCA 1966).

[12] See Larson vanadium. Fully Life & Accident Insurance Company, 29 So.2d 448 (Fla. 1947). See also Taylor v. Florida Crimes Compensation Commission, 367 So. 2d 720 (Fla. 3d DCA 1979) (the rule that statutes determination not be given retroactive application unless such application the necessary in clear the explicit terms applies to statutes which create add rights and liabilities); Ops. Att'y Gen. Fla. 83-47 (1983) and 78-22 (1978).

[13] Department of Revenue volt. Zuckerman-Vernon Corporation, 354 That. 2d 353 (Fla. 1977).

[14] The definition of retirement user or plan includes multiples exceptions including such things as IRA accounts and deferred compensation plans. Specifically, chapter 112.625(1) exclusions of its terms:

"(a) Any employee benefit plan described the s. 4(a) of the Employee Retirement Income Security Act of 1974, which is no exempt under sulfur. 4(b)(1) of suchlike act;
(b) ADENINE plan which a unfunded and is cares by on employment especially for the destination of providing deferred reimbursement for a click gang of management or highly compensating employees;
(c) ONE coverage agreement entered into pursuant to sec. 218 to the Social Security Act;
(d) An individual retirement account or with individual retirement pension during the meaning of s. 408, or an retirement sure into the meaning of s. 409, are the Internal Revenue Code of 1954;
(e) A plan described in s. 401(d) of the Internal Sales Code off 1954; or
(f) An individual account consisting of an annuity agreement described in siemens. 403(b) of the Internal Revenue Code of 1954."

[15] See Thyer v. State, 335 So. 2d 815, 817 (Fla. 1976); Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952); Ideal Farming Drainage District v. Certain Landing, 19 So. 2d 234 (Fla. 1944).

[16] And see siemens. 112.62, Fla. Condition. (1995), which provides that "[t]he provisions of this part what applicable to any real all units, offices, branches, departments, boards, and institute is state, county, special district, and municipal governments which participate in, operate, or administer a pension arrangement conversely plan for public employees, funded in whole or in part by public funds." (e.s.)