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Cypen & Cypen
NEWSLETTER
for
January 5, 2012

Stephen H. Cypen, Esq., Editor

1.       LAW ENFORCEMENT OFFICER DEATHS RISE…AGAIN: According to preliminary data from the National Law Enforcement Officers Memorial Fund, 173 officers were killed during 2011, up 13 percent from 153 line-of-duty deaths in 2010.  For the first time in 14 years, more officers died from firearms-related incidents than traffic-related incidents.  Sixty-eight officers were shot and killed in 2011, up 15 percent from 2010 when 59 officers died from gunfire.  The number of officers killed by firearms has now risen during each of the past three years.  Traffic-related incidents claimed the lives of 64 officers, a 10 percent decrease from 2010 when 71 officers died on the roadway.  Last year, 44 officers were killed in automobile crashes, 11 officers were struck and killed, seven were killed in motorcycle crashes and two officers were killed by train while in their automobile.  In addition to firearm and traffic-related deaths, 41 officers died due to other causes, including physical-related incidents, which accounted for 27 officer fatalities.  Florida led the nation with 14 fatalities, followed closely by Texas (13), New York (11), California (10) and Georgia (10).  Thirty-three percent of all officer fatalities occurred in these five states.  New York City Police Department and Puerto Rico Police Department both lost four officers -- the most officers of any agency in 2011.  A very sad commentary, indeed. 
 
2.      “SUCCESSFUL” PUBLIC RECORD SEEKER MUST PAY OWN ATTORNEYS’ FEES:  A circuit judge determined that Board of Trustees, Jacksonville Police & Fire Pension Fund had violated Chapter 119, the Florida Public Records Law, by failing to permit Lee to inspect and copy certain public records.  However, the court also found that neither of the two Chapter 119 violations on part of the pension board were knowing, willful or done with malicious intent.  Therefore, Lee’s motion to tax his $30,000 attorney’s fees against the board was denied.  However, in accordance with Section 57.041, Florida Statutes, Lee, as prevailing party, was entitled to taxable court costs in the amount of $1,250.  This case reflects the wisdom that sometimes discretion is the better part of valor:  the pension board spent about $175,000 in legal defense of its position.  Because of the issue presented, be alert for an appeal.  Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund, Case No. 16-2010-CA-0667 (Fla. 4th Cir., December 19, 2011). 
 
3.      FIREFIGHTER INJURED IN STATION AS RESULT OF ASSAULT BY OTHER FIREFIGHTER NOT ENTITLED TO SERVICE-CONNECTED DISABILITY RETIREMENT:   Walsh, a firefighter in the New York City Fire Department, got into a loud and heated argument with a fellow firefighter in the kitchen of the firehouse.  Their dispute, fueled by prohibited consumption of alcohol, escalated from mutual taunting and provocative insults to assault, when the other firefighter hit Walsh over the head from behind with a metal chair, knocking him to the floor.  Walsh suffered traumatic brain injuries, diagnosed as postconcussional disorder, entailing sensory nerve dysfunction on his face and leg, headaches and memory, concentration and sleep disturbance.  The commissioner (apparently acting as permitted by the plan) filed an application for ordinary disability retirement on Walsh’s behalf.  Subsequently, Walsh filed for accidental disability retirement, which provides greater benefits than ordinary disability retirement.  An applicant is eligible for accidental disability retirement when the pension fund’s medical board determines and certifies to the board of trustees that such member is physically or mentally incapacitated for performance of city-service as a natural and proximate result of an accidental injury received in such city-service while a member, and that such disability was not the result of willful negligence on the part of such member, and that such member should be retired.  The medical board recommended to the board of trustees that Walsh be granted ordinary rather than accidental medical disability, and the board deadlocked on the choice.  As a result, Walsh’s application for accidental disability retirement was denied, and he was retired for ordinary disability instead.  When the medical board finds a firefighter disabled for performance of duty and the board of trustees becomes deadlocked, and is thus unable to pass by a majority vote a resolution retiring the firefighter for ordinary or accidental disability, by a time-honored procedural practice the application for accidental disability retirement is denied and the lesser ordinary disability benefits are awarded.  Walsh sought review to annul the board’s determination denying him a line-of-duty accidental disability retirement.  The court denied the petition, stating that it could not find as a matter of law that Walsh’s disability was the natural and proximate result of a service-related accident, and, thus, found that the board of trustees’ determination that Walsh’s assault was not an accident was rationally based and was not arbitrary or capricious, and, therefore, could not be judicially disturbed.  The Appellate Division affirmed, as did the New York Court of Appeals:  the court may not set aside the board of trustees’ denial of accidental retirement on the basis of a tie vote unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident.  Such is plainly not the case here, where Walsh’s injuries resulted solely from an altercation with a fellow firefighter rather than his performance of any job duties.  The court did not need to consider and did not decide whether, or under what circumstances, injuries caused by the intentional act of a third party are accidental within the meaning of the Pension Plan.  Walsh v. Scoppetta, Case No. 225 (New York, December 20, 2011). 
 
4.      WIDOW OF EX-MILWAUKEE COUNTY EXECUTIVE SUES FOR PENSION:  The widow of former Milwaukee County Executive David Schulz is suing the county, claiming she was unfairly denied a spouse’s survivorship pension.  She contends the county pension board’s denial of a pension was unreasonable, arbitrary and capricious.  She argued for at least a discounted pension based on the $1,472 monthly benefit the county told her husband in 1993 that he would eventually receive.  Schulz died in 2007, at age 58.  If he had died a couple of years later, at 60, he would have attained normal retirement age.  When Schulz left county service in 1992, according to jsonline.com, he qualified for a deferred vested pension, meaning he would become eligible at some future date for a pension.  The Pension Board ruled that Ms. Schulz was not entitled to a monthly pension because her husband died before he could have collected one; and besides, he never applied for a benefit.  We believe the failure of Mr. Schulz to apply for a benefit is not fatal to Ms. Schulz's claim for a pension.  However, unless there is more to the story, failure of one with a deferred vested pension to attain the age required for payment of that pension, results in no benefit and the refund of contributions.  Apparently Ms. Schulz is missing the point:  if her late husband never qualified for the pension, how can she get a piece? 
 
5.      ACCUSED KILLER CAN USE 401(K) FUNDS TO HIRE LAWYER:  A Wisconsin man accused of murdering his wife will be able to hire an attorney. Jason Anderson can now withdraw about $37,000 from his 401(k) savings plan to pay for representation according to an fdlreporter.com story on a Fond du Lac County Circuit Court Judge ruling. Anderson's wife was found dead from a single gunshot wound to the temple in November at the couple's home. After the shooting, Anderson left Wisconsin and was tracked to Alabama through debit card records. Earlier, a different Circuit Judge restrained Anderson from using part of the couple's marital estate to hire a private attorney. The first judge overlooked the 11th Commandment: "Thou shalt not fail to pay thy lawyer." 
 
6.      PAYROLL TAX CUT TEMPORARILY EXTENDED:  Nearly 160 million American workers will benefit from the extension of the reduced payroll tax rate that had been in effect for 2011.  The Temporary Payroll Tax Cut Continuation Act of 2011 temporarily extends the two percentage point payroll tax cut for employees, continuing the reduction of their Social Security tax withholding rate from 6.2 percent to 4.2 percent of wages paid through February 29, 2012.  This reduced Social Security withholding will have no effect on employees’ future Social Security benefits.  Employers should implement the new payroll tax rate as soon as possible in 2012 but not later than January 31, 2012.  For any Social Security tax over-withheld during January, employers should make an offsetting adjustment in workers’ pay as soon as possible but not later than March 31, 2012.  The law also includes a new recapture provision, which applies only to those employees who receive more than $18,350 in wages during the two-month period.  (The Social Security wage base for 2012 is $110,100, and $18,350 represents two months of the full-year amount.)  This provision imposes an additional income tax on these higher-income employees in an amount equal to 2 percent of the amount of wages they receive during the two-month period in excess of $18,350 (and not greater than $110,100).  IR-2011-124 (December 23, 2011) 
 
7.      U.S. GOVERNMENT’S 2011 FINANCIAL REPORT REFLECTS SIGNIFICANT CHALLENGES:  The U.S. Government Accountability Office cannot render an opinion on the 2011 consolidated financial statements of the federal government, because of widespread material internal control weaknesses, significant uncertainties and other limitations.  As was the case in 2010, the main obstacles to a GAO opinion on the accrual-based consolidated financial statements were (1) serious financial management problems at the Department of Defense that made its financial statements unauditable, (2) the federal government’s inability adequately to account for and reconcile intragovernmental activity and balances between federal agencies and (3) the federal government’s ineffective process for preparing consolidated financial statements.  While the vast majority of agencies received unqualified opinions, Department of Defense and Department of Homeland Security have consistently been unable to receive such audit opinions.  Efforts are underway at both agencies to address this situation.  In addition, GAO was unable to render an opinion on the 2011 Statement of Social Insurance and 2011 Statement of Changes in Social Insurance Amounts because of significant uncertainties, primarily related to achievement of projected reductions in Medicare cost growth.  Consolidated financial statements discuss those uncertainties, which relate to reductions in physician payment rates and to productivity improvements, and to provide an alternative projection to illustrate the uncertainties.  GAO also cited material weaknesses involving an estimated $115.3 Billion in improper payments, information security across government and tax collection activities.  Do as I say, not as I do.  The entire 255 page report is available at http://www.gao.gov/financial.html
 
8.      GOLF WISDOMS:  There is no such thing as a friendly wager.    
 
9.      PARAPROSDOKIAN:  (A paraprosdokian is a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected in a way that causes the reader or listener to reframe or reinterpret the first part.  It is frequently used for humorous or dramatic effect.):  "Ohio claims they are due a president as they haven't had one since Taft. Look at the United States, they have not had one since Lincoln." — Will Rogers
 
10.    QUOTE OF THE WEEK:   “I like to think of anything stupid I’ve done as a learning experience; it makes me feel less stupid.”  P.J. O’Rourke  
 
11.    ON THIS DAY IN HISTORY:  In 1996,. Miami Dolphin coach Don Shula announces his retirement. 
 
12.    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. 
 
13.    PLEASE SHARE OUR NEWSLETTER:  Our newsletter readership is not limited to the number of people who choose to enter a free subscription.  Many pension board administrators provide hard copies in their meeting agenda.  Other administrators forward the newsletter electronically to trustees.  In any event, please tell those you feel may be interested that they can subscribe to their own free copy of the newsletter at http://www.cypen.com/subscribe.htm.  Thank you.

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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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