Ex-Sheriff beefs up retirement with public funds, Fla.

By Michael Kaiser
The Press Journal (Vero Beach, FL)
March 25, 2001

(Indian River County, FL) - Two months after taxpayers voted him out of office, former Indian River County Sheriff Gary Wheeler spent $23,012 of their money to fatten his retirement checks.

The amount of benefits paid to participants in the Florida Retirement System depends on the employee's length of service with participating government employers.

To increase the size of their checks, the Florida Retirement System allows participants to buy up to five years' of additional retirement credit for working in government jobs that aren't part of the state retirement system.

Wheeler bought 2.42 years worth of credit with a check drawn on the Sheriff's Office account on Nov. 7, 2000.

Wheeler said there should be no controversy over the pay-ment because he spoke with an attorney who told him the move was legal.

"I've got a letter from the state of Florida saying I could do that," Wheeler said. "The way the letter was written, I could have bought my time from New York state (too), but I didn't."

As a former county commissioner and sheriff, Wheeler accrued about 14 years worth of service in the state retirement system.

From 1970 to 1972, Wheeler worked as a police officer at the Ocala Police Department, which is not part of the state system. When he resigned, Wheeler cashed out his retirement account and took the money with him.

By buying credit for his Ocala service, Wheeler was able to increase his monthly retirement checks by $227.09 per month, said Kathleen Anders, communications director for the Department of Management Services.

According to an "estimate of retirement benefit" from the state Division of Retirement, Wheeler will receive between $2,371.82 and $2,427.28 per month with the in-state retirement credit paid for with public money.

Current Sheriff Roy Raymond said he plans to ask for a state attorney general's opinion on the legality of the payment.

"I just don't feel like it's ethical at all," Raymond said.

Raymond said there are legal questions because the statute that deals with buying out-of-state credit specifically says that the participant's employer can pay all or part of the cost, but the parallel statute dealing with in-state credit does not.

Anders said there is nothing illegal about using public funds to buy in-state retirement credit.

"It clearly states it can be paid by the employer or the employee," she said. "There's no ambiguity about it."

The statute outlining payment terms for in-state credit refers back to the statute that deals with payment for out-of-state credit.

"The cost to purchase retirement credit under this section shall be calculated in the same manner as set forth for purchase of credit for out-of-state service," Chapter 121.1122 of the Florida statutes says.

The chapter dealing with out-of-state credit says: "The employer may pay all or a portion of the cost of this service credit."

Raymond also contends that Wheeler cannot act as his own employer and make the decision with no oversight.

"The governor is my employer," he said. "As a constitutional officer, he's the only one who can remove me."

Wheeler, however, said that he considered himself his own employer because he was head of the agency and had no supervision.

Wheeler had then-Undersheriff Jim Davis sign the approval for the payment.

Raymond's final concern is that the payment could amount to unjust compensation because the state sets the sheriff's salary level and anything above that figure could be considered excessive.

"There's questions of ethics. There's questions of unjust compensation," Raymond said. "I would never do that. To me, it's improper."

State Attorney Bruce Colton said state statutes and case law don't give clear direction on the issues Raymond has raised.

"There may be (some ambiguity)," he said. "We've run into that in a situation we're involved in with the sheriff in St. Lucie County."

A similar controversy erupted earlier this month, when it was learned that former St. Lucie County Sheriff Bobby Knowles had paid $67,000 in public funds to buy retirement credit for his former undersheriff, Dennis Williams.

That payment is under criminal investigation by the State Attorney's Office for the 16th Judicial Circuit.

Colton asked Gov. Jeb Bush to appoint a special prosecutor to investigate the St. Lucie case because of his long relationship with Knowles.

However, that case is different because Knowles was clearly Williams' employer, Colton said. It's unclear whether state law considers a constitutional officer to be his own boss, he said.

"That could be a key to the issue here," Colton said. "Who is considered the sheriff's employer for some reasons could be different for other reasons. It's not so clear that you can look it up in the statute book and say, 'Yes, that's the answer.' "

Copyright 2000 LEXIS-NEXIS, a division of Reed Elsevier Inc. All rights Reserved.

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