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RSA confident about case against DeVane

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Posted: Sunday, January 30, 2005 12:00 am

Retirement Systems of Alabama attorney Bill Kelley is confident that the evidence presented last week in a one-day trial shows that a former investigator for the Coffee County district attorney's office should not receive $14,400 a year in additional retirement benefits. "The record is very strong in the case," Kelley said after the trial. "I'm very confident of the RSA's case and very confident that our staff has made the right decision under the law."

Retirement Systems of Alabama attorney Bill Kelley is confident that the evidence presented last week in a one-day trial shows that a former investigator for the Coffee County district attorney's office should not receive $14,400 a year in additional retirement benefits.

"The record is very strong in the case," Kelley said after the trial. "I'm very confident of the RSA's case and very confident that our staff has made the right decision under the law."

However, Kelley said he won't know for weeks how Montgomery County Circuit Judge Gene Reese will rule in a lawsuit filed by former DA's office investigator Bruce DeVane in July 2003.

DeVane filed the lawsuit after the State Employee Retirement System Board denied his request for a retirement increase based on a $152,014 salary he was paid in 2000 while working for then DA Mark Fuller, who is now a federal judge.

The RSA Fuller was a witness in the trial last week, along with his successor in Coffee County, current DA Gary McAliley and Valerie McGuire of the DA's office staff and Don Nelson, director of benefits for the RSA, who told the court that an increase of 89 percent in DeVane's salary from 1999 to 2000 was clearly a "salary spike" in order to increase retirement benefits.

RSA documents show that DeVane's salary in 1999 was $80,307, but was almost doubled in 2000.

Fuller testified that he increased DeVane's salary to almost $6,000 every two weeks because DeVane was preparing a policy and procedure manual for the DA's office.

The manual has been placed into evidence in the trial. Some questions were raised, Kelley said, about its size and the large font in which it was printed.

Kelley said McAliley testified that his office does not use the manual. Kelley said his interpretation of Fuller's testimony was that nothing illegal was done and that the law allowed him to pay employees what he wanted to pay them and that he was pleased with the job DeVane did on preparing the manual.

Kelley said Fuller and McGuire were also questioned about additional bonuses of $3,000 and $18,000 before DeVane's retirement which were said to be for annual and sick leave. Kelley said he does not know if any records exist to support the salary supplements.

Retirement benefits are based on an average of the top three salary years in the last 10 years of service to the state.

DaVane's retirement benefit was reportedly calculated in 2003 as almost $5,000 a month. With the additional benefit based on the $152,000 salary, DeVane would be paid an additional $1,200 a month. Kelley said if DeVane lives an average lifespan, he would have benefits of $330,000.The RSA board denied DeVane's application for retirement benefits

RSA officials and board members review all retirement benefit applications and Kelley said attention was drawn to this case after DeVane sought to buy additional credit on his retirement in 2000 but withdrew the request until the next year when his cost to purchase extra credit would not be based on the higher salary.

Kelley said salary shifts as dramatic as the one in the DeVane case is rare among the thousands of retirement cases the RSA sees annually. The RSA board denied DeVane's application for benefits based on the top three years that included 2000. Kelley said the RSA board ruled that the additional $72,000 DeVane was paid in 2000 was an "extraordinary payment" above the normal compensation and therefore should not be used to calculate retirement benefits.

In 2001, DeVane's salary dropped to $86,000.

Under the retirement program, employees pay in 5 percent of their salaries and the employer, the state, pays a percentage of the payroll. The money is invested and over time, grows and is used to pay the benefits. Kelley said if DeVane is allowed to collect retirement benefits calculated with the $152,000 salary, he would have a lifetime benefit of about $14,400 a year as a result of only about $3,500 in retirement deductions from his payroll.

Kelley was expected to file his trial brief with the court today and he said DeVane, who is being represented by Joe Cassady Sr., has two weeks after the trial to file a brief. Reese will then be able to rule in the case, but Kelley said he does not know when the ruling may be issued. He expects that no matter how Reese rules, the case will likely end up in the appeals court.

The lawsuit filed by Cassady argued that RSA's refusal to include the $152,014 as earnable compensation for 2000 "violates existing law and has caused DeVane to suffer substantial damage since his retirement and that he wil lcontinue to suffer substantial damage in the future."

DeVane retired from the district attorney's office in February 2003 after 32 years of state service.

Cassady said his policy is to make no public comments about a case before the court.

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