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Cypen & Cypen
JANUARY 20, 2011

Stephen H. Cypen, Esq., Editor

1.      AFL-CIO DISPUTES MYTHS ABOUT FLORIDA PENSION FUNDS:   Much like CalPERS exploded myths about its pension fund (see C&C Newsletter for January 13, 2011, Item 1), the AFL-CIO and two outside experts disputed what they say are “myths” that Florida’s public employee retirement plans are underfunded and provide lavish benefits. Also, during a news conference they disagreed with claims that public pension costs are too high and eating up state and local budgets, and that they hurt local economies. The Orlando Sentinel reports that the union is troubled by such comments, although details of proposed legislation are hazy and nothing has yet been filed. In fact, pension benefits averaging $16,000 to $23,000 a year cannot be considered extravagant. Although new Florida Governor Rick Scott has dubbed the $122 Billion Florida Retirement System a ticking fiscal time bomb, the plan’s last annual report shows an unfunded liability of 12% -- one of the lowest of any public pension plans in the nation. Ray Edmondson, CEO of Florida Public Pension Trustees Association, a nonprofit educational organization for local plans, said FRS is “one of the shining stars of pension systems throughout the United States.” Unfunded liability is the difference between a plan’s assets and liabilities, assuming it had to pay out benefits all at once. To say that a pension fund that has an unfunded liability is underfunded is not true, said an actuary specializing in public pension plans. Governor Scott has said he wants new hires to be placed into a defined contribution plan, similar to a 401(k). FPPTA head Edmondson, who is also a retired Fort Lauderdale police officer, said switching to defined contributions could cost taxpayers more, because retirees who exhaust their pension benefits would qualify for welfare at taxpayer expense – something we have been saying for years. 

2.      FLORIDA RETIREMENT SYSTEM CHIEF RESPONDS TO EDITORIAL:   Ash Williams, Executive Director and Chief Investment Officer of the Florida State Board of Administration (which runs, among other things, the Florida Retirement System), has responded to a Palm Beach Post editorial. Williams says the editorial, “Ask about insider dealing,” was based upon information not verified with SBA. Williams also denies the major theme that principals of an SBA investment were Williams’s former colleagues. Williams was not a former colleague and did not know the principals prior to SBA’s review of this particular investment – statements supported by documents in the writers’ possession! Williams goes on to note what others have recently said about SBA:

·        The Florida Retirement System Pension Plan net return for the past fiscal year was 14.03%, 2.51% ahead of target, the greatest return over benchmark in the past 25 years. 

·        Even the Pew Center reported Florida’s pension plan stands out as a “solid performer” among public pension funds, and praised Florida’s strong actuarial position and history of solid funding. 

·        A survey shows that SBA is a low-cost provider. Out of a peer group of 17, Florida ranked in the bottom quartile in total cost. 

·        Wilshire Trust Universe Comparison Service Top 10 Public Plans Universe performance comparison results indicate that Florida ranks in the top quartile for one- and three-year performance results. 

·        Standard & Poor’s study on state retirement systems indicates that the Florida pension plan’s funding ratio is second highest in the U.S.

Additionally, since returning to the SBA in October 2008, Williams has implemented tighter ethics policies, improved oversight and enhanced transparency. Pensioners and taxpayers can rest assured that there is a regular and open dialogue between SBA and the trustees, and that public money is being properly managed and invested in a fiscally responsible manner. In other words, kiss my Ash. 

3.      NEW FLORIDA GOVERNOR ORDERS VERIFICATION OF EMPLOYMENT STATUS:   On January 4, 2011, Florida’s new Governor, Rick Scott, issued Executive Order Number 11-02, dealing with verification of employment status. Federal law requires employers to employ only individuals eligible to work in the United States. The U.S. Department of Homeland Security’s E-Verify system allows employers quickly to verify employee eligibility in an efficient and cost-effective manner. The Executive Order, to take immediate effect, directs all agencies under direction of the Governor to verify employment eligibility of all current and prospective agency employees through the E-Verify system. All agencies under direction of the Governor must include, as a condition of all state contracts, an express requirement that contractors utilize the E-Verify system to verify employment eligibility of (a) all persons employed during the contract term by the contractor to perform employment duties within Florida and (b) all persons, including subcontractors, assigned by the contractor to perform work pursuant to the contract with the state agency. Agencies not under the direction of the Governor are encouraged to verify employment eligibility of their current and prospective employees, utilizing the E-Verify system, and to require contractors to utilize the E-Verify system to verify employment eligibility of their employees and subcontractors. Let’s get to work…legally. 

4.      JUSTICES WILL HEAR CASE ON RECUSAL LAWS:   The Supreme Court of the United States has agreed to decide whether states may forbid government officials to vote on matters where they appear to have a personal conflict.  The case concerns a member of a city council in Nevada. According to the New York Times, eight states, led by Florida, had urged the court to hear the case, arguing that recusal laws for public officials were a measured response to the credibility gap between the public and its public officials.   Nevada’s law requires elected officials to disqualify themselves, much as judges often do, when they are asked to vote on matters that touch on what the law called “commitments in a private capacity.”   A member of the city council disclosed that his campaign manager was a consultant to a business seeking to develop a casino, before voting its way on a land-use matter.  The Nevada Commission on Ethics later ruled that the vote was improper, and censured the councilman. The Nevada Supreme Court reversed that decision, saying it violated the First Amendment and citing a U.S. Supreme Court decision last year.

5.      DOL DUAL ASSIGNMENT REGULATION NOT OBSOLETE:   Fire investigators for the City of Montgomery, Alabama’s, fire department appealed dismissal via summary judgment of their collective action seeking overtime pay from the city. Their appeal raised the question of continuing validity of the Department of Labor’s dual assignment regulation, which addresses overtime for firefighters who perform law enforcement duties. Concluding that the regulation remains valid, the U.S. Court of Appeals for the Eleventh Circuit reversed. The statute redefining an employee in fire protection services did not render the regulation obsolete. Nothing in text of the statute bars or purports to change existing administrative treatment of dual assignment employees, and dual assignment regulation does not by its text operate to alter new statutory definition of employee in fire protection activities. Cremeens v. The City of Montgomery, 22 Fla. L. Weekly Fed. C1651 (U.S. 11th Cir., 09-15633, April 5, 2010). 

6.      U.S. APPEALS RULING STRIKING DOWN OBAMACARE:   As expected, the United States has asked the Fourth U.S. Circuit Court of Appeals to overturn a Virginia federal judge’s ruling that the Patient Protection and Affordable Care Act is unconstitutional because it requires some Americans to buy insurance (see C&C Newsletter for December 16, 2010, Item 1). The same federal appeals court is already reviewing an earlier ruling by another Virginia federal judge, which upheld the health-care act, The appellate court may assign both cases to one three-judge panel to avoid conflicting rulings. By the way, the Fourth Circuit is dominated by Democratic appointees. 

7.      BILL WOULD IMPLEMENT UNIVERSITY OF CALIFORNIA PENSION PLAN LIMITS:   A California State Assemblymember has sponsored a bill aimed at closing the loophole providing for increased retirement pensions for some of the state's highest-paid employees (see C&C Newsletter for January 6, 2011, Item 4). The bill is the latest installment in a discourse dating from December, when the executives signed a letter to the UC Office of the President, threatening legal action if a 1999 regents proposal to increase pensions of employees making upward of $245,000 was not enacted.  The bill would take effect January 1, 2012 and put into state law the pension limit of $245,000, forcing the university to honor the cap despite the waiver from IRS.  The 36 executives declined to comment on the proposed legislation, according to 

8.      ARE YOU A WORKAHOLIC?:   In 2010, more employees were asked to do more with less, which can create a work environment where some employees become addicted to work.  Employee Benefit News reports survey results showing that 52% of workers put in more than 40 hours a week, while 14% clock in more than 50 hours.   In addition, 31% of survey participants bring home work at least once a week, while one-in-ten do the same at least every other day.   Of course, companies value workers with a strong work ethic, especially during tough economic times.  Employers, however, need to be mindful of those employees who are consumed by work and have tossed aside all personal activities.  The post-recession workplace reflects a leaner staff and an increased workload.  As a result, 24% of workers reported that when they are at home or out socially, they are still thinking about work, while 19% often dream about work and 16% admitted that most of their conversations tend to focus on work. Working too much can also affect personal and family relationships.  About 22% of workers reported they do not have time to pursue personal interests because they are always working. Fifteen percent of workers acknowledged that they would rather be working than at home, while 12% reported the amount of time spent on work is causing trouble at home, and 9% are more concerned about their boss’s approval than their family members. Here’s some advice to improve a work/life balance: 

·        Set aside personal time -- You schedule business meetings and events; do the same for “me time” or “family time,” and stick to the schedule.

·        Let go -- Learn to delegate work-related tasks and responsibilities to others.  

·        Take off the e-leash -- In most cases, that email or text can wait; turn off your electronic devices at a certain time. 

·        Talk to others who understand your situation -- Check out support groups such as Workaholics Anonymous (, and find out what others have done in their recovery.

In other words: GET A LIFE.  

9.      TOP 10 LESSONS OF 2010: Here from Genuine Insights are Practical Genius Top 10 Lessons of last year: 

  • Shut down. The greatest lesson was the power of granting time for mental stillness. Carving out time to shut down for 30 minutes and tune inward does small wonders to sustain a healthy mind.
  • Find what you love. One of the greatest aspects of self-discovery is finding what you love.  If you commit to finding what you love and decide to make love to it, life as you know it changes.  
  • Change it up. Change is powerful and not as hard you think it is.  Change how you manage your time and what happens is life on every level will begin to change because of the direct impact of just shifting one particular aspect of it. 
  • Leaders dance. If you love to dance (as most people do), honor that physical expression, regardless of age and physical limitations.  
  • Less is more. Learn how to have extreme focus. When you slow down and focus on crushing in on one thing versus 100 things, the result and experience are much greater. 
  • Connect with spirit. Whether you are Christian, Jewish, Muslim or atheist, honor and listen to the spirit within at least once a week.   Consciousness and tuning into a force greater than yourself deliver insights unattainable without a connection to spirit.  
  • Find the face time. We are all technology addicts, which has interfered with our physical connections with one another.  You have to find time for meeting with folks in person, even if it is just a 20-minute green tea break.
  • Be a beginner. Take on a project, initiative or new activity that forces you to be a beginner again.  It is in the beginner state of mind that you will learn more about yourself than you probably expect. 
  • Fail forward. Life as an entrepreneur is filled with lots of failure, and every failure is important to fail closer to your goal.  Learn from your mistakes and invest in preventing them from happening again. 
  • Be resilient. Creating a business during the worst economic downturn in our modern history teaches that one attribute that trumps all others is resilience.  No matter what, keep rolling, never, ever give up. 

10.    THE GREATEST LETTER EVER PRINTED ON NFL TEAM LETTERHEAD:   In 1974, a Clevelander wrote the Browns complaining of the menace posed by the then-fad of throwing paper airplanes, and implicitly threatening litigation. The Browns' response, penned by general counsel James Bailey  is just about the most awesome thing ever committed to paper. Since we cannot print the response without redaction, we refer you to it at There is no explanation as to why this exchange of letters just popped up on the internet over thirty-five years after the fact. P.S., Dale Cox, the complainant, is still a season-ticket holder, although he now lives in Idaho!

11.    TOP ODDBALL INTERVIEW QUESTIONS OF 2010:   We all know the job interview process can be stressful, but for many candidates it can feel like a pressure chamber, especially when questions seemingly come out of left field., a career and workplace community, has compiled its annual list of oddball interview questions based on the tens of thousands of interview questions shared by job candidates during the past year. Here are some of the Top 25 Oddball Interview Questions of 2010 from Glassdoor: 

  • “If you were shrunk to the size of a pencil and put in a blender, how would you get out?” (asked at Goldman Sachs) 
  • “How many ridges are there around a quarter?” (asked at Deloitte)
  • “Rate yourself on a scale of 1 to 10 how weird you are.” (asked at Capital One)
  • “There are three boxes, one contains only apples, one contains only oranges and one contains both apples and oranges.  The boxes have been incorrectly labeled such that no label identifies the actual contents of the box it labels. Opening just one box, and without looking in the box, you take out one piece of fruit.  By looking at the fruit, how can you immediately label all of the boxes correctly?”  (asked at Apple – where else?)
  • “How many traffic lights in Manhattan?”  (asked at Argus Information & Advisory Services)
  • “You are in charge of 20 people. Organize them to figure out how many bicycles were sold in your area last year.”  (asked at Schlumberger)
  • “How are M&M’s made?”  (asked at US Bank)

And we thought just interviewees were off the wall. 

12.    OUTRAGEOUS AND COMMON MISTAKES CANDIDATES MAKE IN JOB INTERVIEWS:   As a counterpoint to the piece on top oddball questions asked by interviewers (see Item 11 above), we present outrageous and common mistakes made by job interviewees. According to CareerBuilder, here are the most outrageous blunders recently encountered by hiring managers: 

  • Hugged hiring manager at end of interview.
  • Ate all candy from the candy bowl while trying to answer questions.
  • Blew nose and lined up used tissues on the table.
  • Brought a copy of college diploma that had obviously been whited-out and candidate’s name added.
  • Wore a hat that said “Take this job and shove it.”
  • Talked about how an affair cost him a previous job.
  • Threw his beer can in outside trashcan before coming into reception office.
  • Had a friend come in and ask “HOW MUCH LONGER?”

In addition to those unusual gaffes, employers shared the most common mistakes candidates made during an interview:

  • Answering a cell phone or texting
  • Dressing inappropriately
  • Speaking negatively about a current or previous employer
  • Chewing gum

CareerBuilder’s tips for successful interviews in a competitive job market are

  • Keep it upbeat:  Many job seekers may be experiencing tougher than usual job searches in this economy.  Even if your job search process has been frustrating, do what you can to remain positive and upbeat.
  • Prepare, prepare, prepare:  Before the interview, research the company by looking at the press room for recent announcements and the “About Us” section for company culture. Having this knowledge will allow you easily to answer and ask questions during the interview.
  • Keep it professional, not personal:  Do not let business decorum disappear even if the interview is in a casual setting. 
  • Practice does make perfect:  Nerves are likely to rear their head in an interview, so help calm them ahead of time by practicing.  
  • Honesty is the best policy:  If questions come up that you do not know how to answer, do not lie or pretend you know.  Admit that you may not know the answer, but then explain how you would go about finding a solution, proving your resourcefulness.

13.    WORLD AIR CRASH DEATHS RISE TO 828, AS SAFETY RECORD DIPS:   The global death toll from air crashes rose by 13%, to 828 last year, as the airline industry's improving reputation for safety suffered a disappointing year, reports Guardian.   Incidents in the Middle East, India and Pakistan accounted for the majority of commercial aviation deaths last year, as the fatal accident rate worsened from one per 1.5 million flights in 2009 -- the industry's safest year -- to one in every 1.3 million flights in 2010.  The fatal accident rate in the 1990s was one per 700,000 flights, while the rate for the 2000s was one per 1.2 million. The worst accident in 2010 involved an Air India Express Boeing 737-800 in May, when 158 passengers and crew were killed after the plane overran on landing at Mangalore. 

14.    HE’S A REAL NO-WEAR MAN:   A Kentucky lawyer has turned underwear salesman with the goal of offering a solution for modest airline passengers. The T-shirts, undies and briefs contain strategically placed emblems designed to blur a person’s private parts in airport scanners, according to Costs start at $14.99.  The emblems for men and women are patriotic stars and eagles, while kids’ T-shirts sport a happy face. Special ink used on the shirts blurs body parts that are not subject to search during a pat down by airport screeners from the Transportation Security Administration. The lawyer says the garments are not a form of protest, they are designed to be a reasonable compromise for travelers to allow TSA to do its job, but allow people to travel without a great deal of inconvenience and to preserve their dignity. 

15.    [NO CAPTION]:   We could not think of an appropriate caption for this matter, so there is none. The Berkeley, California, City Council will vote next month on a proposal to use taxpayer money to pay for s.ex-change operations for city employees. The proposal, reported by, calls for the city to maintain an annual $20,000 fund for gender-reassignment surgery, which can cost up to $50,000.  The money would be distributed on a first-come, first-served basis. Berkeley health insurance providers do not pay for the procedure under the city's current health plans. (Surprised?) To be eligible for the fund, employees must have lived as the opposite s.ex for at least one year and undergone hormone therapy.  They also must have worked for the city for at least a year. Go West, young man, go West? 

16.    EXPLODING-LID LAWSUIT SETTLED:   A man who says he was knocked unconscious by an exploding lid has settled his lawsuit against Kroger Co. and Del Monte Foods (see C&C Newsletter for November 24, 2010, Item 6). reports that trial was scheduled last week in federal court, but the parties reached a settlement. Although no details were given, the man had previously rejected an offer of $150,000. The man alleged that a stubborn lid on a jar of fruit flew through the air and struck him in the eye, after he hit it with the handle of a screwdriver. He claimed the fruit was sold after its expiration date, and gas had built up in the jar. Perhaps he should have worn a gas mask. 

17.    REMARKABLE QUOTES FROM REMARKABLE JEWS: Even a secret agent can't lie to a Jewish mother. Peter Malkin

18.    BLESSED ARE THE CRACKED, FOR THEY LET IN THE LIGHT: I used to have a handle on life, but it broke. 

19.    FABULOUS RANDOM THOUGHTS:   I think the freezer deserves a light as well. 

20.    QUOTE OF THE WEEK:    “You can be sincere and still be stupid.” Anonymous

21.    KEEP THOSE CARDS AND LETTERS COMING: Several readers regularly supply us with suggestions or tips for newsletter items? Please feel free to send us or point us to matters you think would be of interest to our readers. Subject to editorial discretion, we may print them. Rest assured that we will not publish any names as referring sources. 

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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