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Board of Trustees of the City of Omaha Police & Fire Retirement System v. City of Omaha

Supreme Court of Nebraska

January 30, 2015

BOARD OF TRUSTEES OF THE CITY OF OMAHA POLICE AND FIRE RETIREMENT SYSTEM, APPELLEE,
v.
CITY OF OMAHA, NEBRASKA, A MUNICIPAL CORPORATION, ET AL., APPELLANTS

Page 187

[Copyrighted Material Omitted]

Page 188

Appeal from the District Court for Douglas County: JAMES T. GLEASON, Judge.

John P. Passarelli and Matthew S. Noren, of Kutak Rock, L.L.P., for appellants.

John R. Douglas and David A. Blagg, of Cassem, Tierney, Adams, Gotch & Douglas, for appellee.

HEAVICAN, C.J., CONNOLLY, STEPHAN, MCCORMACK, and CASSEL, JJ. WRIGHT and MILLER-LERMAN, JJ., not participating.

OPINION

Page 189

[289 Neb. 994] Stephan, J.

The City of Omaha's home rule charter authorizes the city council to establish a " pension and retirement system or systems" for city employees.[1] The charter provides that the assets and reserves of any such system shall constitute a " separate and independent trust fund," title to which shall be vested in a board of trustees to be created by ordinance.[2] Pursuant to this authority, the Omaha City Council created the City of Omaha Police and Fire Retirement System (the System) which is administered by a board of trustees.[3] The issues in this declaratory judgment action brought by the board against the City of Omaha and its mayor and city council (collectively the City) are whether the board has authority to retain an actuarial consultant and private legal counsel at city expense. The district court for Douglas County determined the board had such authority, and the City perfected this timely appeal and petitioned to bypass the Nebraska Court of Appeals. We granted the petition.

BACKGROUND

Pursuant to Omaha's home rule charter,[4] the Omaha City Council enacted an ordinance creating

[289 Neb. 995] a separate and independent trust fund to be known as the [S]ystem trust fund, title to which shall be vested in the board of trustees and into which shall be paid all contributions made under the [S]ystem by the members and the city after the date of establishment of such fund, and from which shall be paid all benefits provided by the [S]ystem, including benefits to retired members, widows or widowers, and children who began receiving benefits prior to establishment of such fund.[5]

The ordinance authorizes the board to maintain a portion of the fund in cash for the " payment of benefits and investment expenses" and requires it to " invest and reinvest" all remaining assets of the fund with " all investment income and losses being credited to such fund." [6] The ordinance further provides that the city finance director " shall make or approve all investments for the board." [7]

The board consists of seven members. Three members are elected from Omaha's police and firefighter unions; three members are representatives of the City, including the finance director, the human resources director, and a member of the city council; and the seventh member is not associated with the City or the unions and is elected by the other six members.

Under the Omaha home rule charter, the board " shall formulate policy for the [S]ystem and shall supervise its operation." [8] Also pertinent to the issues presented in this case is § 22-69 of the Omaha Municipal Code,[9] which provides:

Subject to the board of trustees, the management of the [S]ystem shall be directed by the following officers, to whom shall be delegated the indicated responsibilities:

Page 190

(a) The city finance director shall be the administrative head of the [S]ystem and shall approve all investments of the retirement fund.
[289 Neb. 996] (b) The city attorney shall be the legal advisor to the board.
(c) The county treasurer shall be the treasurer of the [S]ystem.
(d) The board, subject to applicable personnel regulations, may employ an actuary. The actuary shall act as technical advisor to the board on matters regarding operation of the [S]ystem, and shall recommend mortality tables, interest rates, discontinuance tables, and any other tables necessary for any investigation or valuation to be made of the [S]ystem, which tables and interest rates shall be subject to the approval of the board. The actuary shall make such investigation and valuation at such times as may be requested by the board, but at ...

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