Recommendation Concerning the Public Official Bond of Ernie Lee Magaha, former Clerk of the Circuit Court.
That the Board take the following action:
A. Authorize the County Attorney's Office to make a demand against the public official bond given by Fidelity & Deposit Company of Maryland as surety, with Ernie Lee Magaha as Clerk of the Circuit Court of Escambia County as principal, in the sum of $50,000, and negotiate a settlement for that sum; and
B. Authorize the County Attorney's Office, should negotiations reach an impasse, to institute litigation against Ernie Lee Magaha, in his official capacity as the former Clerk of the Circuit Court and Comptroller, but not personally, and against Fidelity & Deposit Company of Maryland in a suit for damages for breach of the public official bond. |
Both the Honorable Pam Childers, Clerk of the Circuit Court and Comptroller, and Ernie Lee Magaha, the former Clerk of the Circuit Court and Comptroller, were candidates for the office of Clerk of the Circuit Court as Republicans with the primary being held on August 14, 2012. The Supervisor of Elections certified that Ms. Childers had defeated Mr. Magaha and that she would be the Republican candidate in the general election to be held in November 2012. By law, Mr. Magaha's term would end on January 7, 2013, at midnight.
Prior to being sworn in as Clerk of the Circuit Court, Ms. Childers retained the firm of certified public accountants, Carr, Riggs & Ingram, LLC, to perform a forensic examination concerning a retroactive lump sum cost of living adjustment (COLA) which had been authorized by Mr. Magaha on September 21, 2012, and whether Mr. Magaha expended more than 1/12 of the Clerk's budget in a single month between October 1, 2012, and the expiration of his term of office on January 7, 2013. The Carr, Riggs forensic examination analyzed other financial issues which are not relevant to this recommendation.
Two statutes form the basis of this recommendation. The first is Section 215.425(3), Fla. Stat. (2011), in which a public employer may only award a bonus if it is based on work performance standards which have been disseminated to all employees prior to the period upon which the bonus is based and the public employer considers all employees eligible for the bonus. Prior to July 1, 2011, this statute did not apply to the Clerks of the Circuit Court who were free to award extra compensation as long as it was made pursuant to a written policy of the Clerk. In contrast, a COLA is given by an employer at the beginning of the budget year, is applicable to all employees and is awarded to combat the effects of inflation during the course of the year. Contrary to the new statute, Mr. Magaha awarded a 3% retroactive lump sum COLA to employees who had more than six months length of service. Those employees who qualified were paid by direct deposit on September 28, 2012, in the total sum of $225,512.80. It appears that no personnel action forms (PAFs) were generated for qualifying employees to show the nature of the compensation paid them.
The second statute at issue is Section 129.06(5), Fla. Stat. This statute provides, in pertinent part, that any constitutional officer whose budget is approved by a Board of County Commissioners and who has not been re-elected to office shall be prohibited from making any budget amendments, transferring funds between itemized appropriations or expending in a single month more than 1/12 of any itemized approved appropriation following October 1st unless approved by the Board of County Commissioners. Amy Lovoy, Director of the Management & Budget Services Department, reviewed Mr. Magaha's expenditures following October 1, 2012. She determined that Mr. Magaha exceeded the General Fund budgeted amount for the month of November 2012, by $61,390.01. Ms. Lovoy considered only those employees of the Clerk who provide services to the County and did not evaluate the budgeted funds for those employees assigned to the "court" side of the Clerk's Office.
Based on the law and the facts, this office concludes that the total sum unlawfully expended by Mr. Magaha as Clerk of the Circuit Court, is $286,902.81. The public official bond obtained by Mr. Magaha with Fidelity & Deposit Company would cover these violations of law to the maximum sum of $50,000.00. This office does not recommend pursuing any personal liability against Mr. Magaha as it appears that the unlawful expenditures took place in the course and scope of his duties as Clerk of the Circuit Court and Comptroller. Although unlawful, Mr. Magaha's decisions do not appear to be the result of any malicious or bad faith conduct. This office recognizes Mr. Magaha's many years of service to the community and his stature as a well-respected public servant. This recommendation is made solely on the grounds that laws were in place which Mr. Magaha was bound to obey by his oath of office. |