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Home My WebLink About2010 02 23 City Attorney Letter Referenced During The Special Meeting Date: February 23, 2010 The attached letter was referenced by Chairperson Fair at the February 23, 2010 Board of Trustees Special Meeting. BROWN, GARGANESE, WEISS & UAGRESTA, P.A. Attoi neys at Lax Debra S. Babb- Nutcher° Offices in Orlando Tara L. Barrett Joseph E. Blitch Usher L. Brown' Ft . Lauderdale ivian P. Cocotas ale &Tampa Robin Gibson Daage Suzanne D'Agresta Gregg A. Johnson Anthony A. Garganese Kimberly R. Kopp William E. Reischmann, Jr. Katherine W. Latorre J.W. Taylor Bridgette M. Miller Jeffrey S. Weiss Alfred Truesdell 'Board Certified Civil Trial Lawyer 'Board Certified City, County & Local Government Law Board Certified Appellate Practice February 11, 2010 Via Certified Mail, Return Receipt Requested Sandy Turner Retirement Plan Specialist, Inc. 815 Eyrie Drive, Suite 2 Oviedo, FL 32765 Re: Demand for Public Records of City of Winter Springs Our File No. 1193 Dear Ms. Turner, Gary M. Glassman Erin J. O'Leary' Amy J. Pitsch Catherine D. Reischmann Of Counsel The undersigned is the City Attorney of Winter Springs. Pursuant to section I I9.021(3)(b), Florida Statutes (2009), this letter constitutes a formal demand for Public Records that are now unlawfully in your possession. On December 10, 2009, the City Manager of Winter Springs provided to you a letter terminating your actuarial services agreement with the City. Since that time, the City has made repeated demands on you to return all Public Records that were either prepared or received by you on behalf of the City related to your services as actuary for the City (hereinafter referred to as "Public Records "). As the former actuary for the City, you were considered the temporary custodian of the Public Records. However, because the City terminated your services and has retained Gabriel Roeder Smith & Company ( "GRS ") as the City's new actuary, you are no longer the rightful custodian of the Public Records. See § 119.021 (4)(b), Fla. Stat. (2009). Therefore, on behalf of the City of Winter Springs, I hereby demand that you immediately return to the City all Public Records including, but not limited to, any and all public records pertaining to the following items which GRS has previously requested from you: Inactive participant data as of October 1, 2007, including but not limited to dates of retirement, benefit amounts, optional form of payment elected and beneficiary information. 111 N. Orange Ave, Suite 2000 • P.O. Box 2873 • Orlando, Florida 32802 -2873 Orlando (407) 425 -9566 Fax (407) 425 -9596 • Kissimmee (321) 402 -0144 • Cocoa (866) 425 -9566 • Ft. Lauderdale (954) 670 -1979 Website: www.oriandolaw.net • Email: firm @orlandolaw.net Sandy Turner Retirement Plan Specialist, Inc. February 11, 2010 Page 2 2. A response to GRS's email request of February 2, 2010, for clarification and/or additional information required for active participants as of October 1, 2007, including but not limited to active members' accumulated employee contributions, accumulated credited service, rehire information and breakdown of present value of benefits by status and decrement. 3. Backup to Mr. Brian Griggs' (Firefighter) refund of contributions calculation ($713.50). 4. Confirmation that the Money Purchase Balance accounts should have been credited at a rate of 1.04% (4.16,120% AFR at September 2008) on the December 31, 2008 Account Balance Statement. For purposes of this letter, the term "Public Record" includes all documents, papers, letters, transcripts, tapes, CDs, DVDs, maps, books, photographs, films, sound recordings, data processing software, email correspondence, or other material, regardless of form, characteristics, or means of transmission. See §119.011(12), Fla. Stat. (2009); See also Fla. AGO 2007 -14 (explaining that email messages and email addresses are included within definition of public records). Again, you are not entitled to possession of the Public Records currently in your custody. Section 119.021(4)(a), Florida Statutes, provides that whoever has custody of public records shall deliver such records to his or her successor at the expiration of his or her term. By virtue of the essentially municipal functions you performed as the City's actuary, all records kept or received by you in the transaction of such official business are Public Records. See Fox v. News - Press Publishing Co.. Inc. 545 So. 2d 941 (2 ° DCA 1989) (Business records maintained by third - party who contracted with city to perform essentially government functions were public records). Moreover, all state, county and municipal records are not personal property, but belong to the governmental entity. See, Maxwell v. Pine Gas Corporation 195 So. 2d 602 (Fla. 4th DCA 1967); See also Fla. AGO 98 -59 (former city attorney's records which were made or received in carrying out her duties as city attorney constitute public records and must be turned over to successor); and Fla. AGO 75 -282 (public records, regardless of usefulness or relevancy, are required to be turned over to the custodian's successor in office or to the Department of State). Your delay in returning the Public Records to the City is negatively impacting the City's ability to properly manage its pension plan. Therefore, you have ten (10) calendar days from receipt of this letter to deliver all Public Records to the City pursuant to Florida law. See § 119.021(4)(b), Fla. Stat (2009). Please be advised that failure to comply with the Florida Public Records Act may result in civil and/or criminal penalties being imposed on you, including a fine and/or imprisonment. Section 119. 10, Fla. Stat. (2009). In addition, your failure to comply with this demand may result in the City taking legal action against you to recover the Public Records that are unlawfully in your possession. If such an action is brought against you, the City will seek to recover any and all applicable damages suffered by the City, as well as reimbursement of attorneys' fees and costs that are necessarily incurred by the City to recover the Public Records from you. Upon receipt of this letter, you are instructed to immediately contact Larry Wilson, Senior Consultant and Actuary, at GRS via telephone at (954) 527 -1616 or via email at Larry. Wilsonggabrielroeder.com to timely coordinate the prompt transfer of all Public Records in your possession to the City. Sandy Turner Retirement Plan Specialist, Inc. February 11, 2010 Page 3 PLEASE GOVERN YOURSELF ACCORDINGLY. Very y yours, Anthony A. Garganese AAG City Attorney cc: Kevin Smith, City Manager (via e -mail) Larry Wilson, GPS (via e -mail)