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Cypen & Cypen
NEWSLETTER
for
FEBRUARY 24, 2004

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. FLORIDA ATTORNEY GENERAL ISSUES IMPORTANT OPINION ON DUAL OFFICE HOLDING:

The Florida Attorney General was recently asked the following questions:

1. May a person serve on a municipal firefighters pension board administering a local plan under Chapter 175, Florida Statutes, while simultaneously serving on a municipal police pension board administering a local plan under Chapter 185, Florida Statutes?

2. May a person serve on a municipal general employees pension plan while simultaneously serving on the municipal firefighters pension board or police pension board?

3. May a city council member serve on one or more of the above described boards as part of his or her ex officio duties?

Article II, Section 5(a), Florida Constitution, provides that no person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except any officer who may be a member of a statutory body having only advisory powers. The Attorney General has previously stated that membership on a board of trustees empowered to administer a pension fund constitutes an office for purposes of the constitutional provision. However, the courts and the Attorney General have recognized that imposition of ex officio duties on a municipal officer under a city code or charter to serve on the board of trustees of the police officers and fire fighters pension trust fund would not violate the constitutional prohibition on dual office holding. Although the city code in question requires two firefighters to serve on the board of trustees of the firefighters retirement fund and two police officers to serve on the board of trustees of the police officers retirement fund, nothing in the code imposes upon a member of the board of trustees of one of those boards the additional duties of serving on the other board. Thus, an individual’s simultaneous service on the municipal firefighters pension board and the municipal police officers pension board would violate Article II, Section 5(a), Florida Constitution. Similarly, service by the same person on the municipal general employees pension plan while also serving on either the firefighters pension board or the police officers pension board would appear to violate the constitutional prohibition against dual office holding. Again, the city code does not impose such additional duties on a member of the general employees pension plan. Insofar as city council members are concerned, the city code does impose ex officio duties on such member to serve on the general employees pension board. Thus, a council member may so serve. But, the city code does not impose ex officio duties on a member of the council to serve on either the firefighters pension board or the police officers pension board. Thus, a member of the city council cannot simultaneously serve on either the firefighters pension board or the police officers pension board. AGO 2004-05 (February 13, 2004).

2. CITY AUTHORIZED TO PAY STATUTORY PENSION TO FORMER CITY COUNCIL MEMBER DESPITE HIS DEFEAT:
The Florida Attorney General has issued an opinion on Section 112.048, Florida Statutes, a subject of rare inquiry (see C&C Newsletter for May, 1996, Page 1). Basically, the statute provides a pension for an elected city official who has held office for 20 consecutive years, payable upon voluntary resignation or retirement, when no other plan is available for elected local officials. Having served continuously on the city council for 22 years, a member left office after running for reelection and losing. Ten years later, claiming to have just discovered the statute, he applied for retroactive benefits from date of last service. Because the council member was defeated, the Attorney General first had to decide whether one who is defeated at the polls can be considered to have “retired.” (Clearly, he did not “voluntarily resign.”) In a rather generous interpretation, the Attorney General interpreted “retire,” as used in the statute, as any separation or withdrawal from public service of an elected municipal officer. Score one for the former council member. The Attorney General then turned to the question of retroactivity -- in this case, more than a decade. Seizing upon the statutory language that the pension becomes payable “on the officer’s own requisition,” the Attorney General found that the pension benefits may not be paid retroactively. Score one for the city. AGO 2004-06 (February 13, 2004).

3. FLORIDA FIRE CONTROL DISTRICT AUTHORIZED TO PAY FOR ALL OR PORTION OF BOARD MEMBERS’ GROUP HEALTH INSURANCE PROGRAM PARTICIPATION:
The Golden Gate Fire Control and Rescue District, an independent special district, was established to maintain a fire department and rescue service. The district is governed by an elected three member board of commissioners who are district residents. Operation and projects of the district may be financed by the collection of impact fees, ad valorem taxes, non ad valorem taxes, service charge and issuance of bonds. Commissioners are authorized to receive a salary or honorarium for their services, but the amount of that payment is limited to $500.00. Travel and per diem of commissioners may also be reimbursed. Although the charter for the district does not mention insurance, the district is authorized to pay from funds of the district for group health insurance for members of the board of commissioners of the district in addition to the salary or honorarium authorized. Further, nothing would preclude the use of a commissioner’s salary for the purpose of making payments for insurance provided by the district. AGO 2004-08 (February 13, 2004).

4. ON-DUTY LAW ENFORCEMENT OFFICER HAS AUTHORITY TO ENFORCE PRIVATE LAND OWNER’S WRITTEN AUTHORIZATION TO COMMUNICATE ORDER TO ALLEGED TRESPASSER:
In order to commit a trespass, an offender must defy an order to leave property that has been personally communicated to him by the owner of the premises or some other authorized person. In AGO 90-08, the Florida Attorney General addressed whether on-duty police officers could be pre-authorized to act as the agents of a private land owner for the purpose of communicating to an alleged trespasser an order to leave private property. The Attorney General then found no statutory provision that specifically authorized local law enforcement officers to be so designated. Moreover, he concluded that the predesignation of on-duty law enforcement officers to act as agents of private land owners to communicate an order to leave private property would serve primarily a private purpose, in violation of the Florida Constitution. During the 2000 legislative session, however, the Florida Trespass Statute was amended to include, as an authorized person, any law enforcement officer whose department has received written authorization from the owner or lessee. Thus, the prior Attorney General Opinion has no further vitality, and an on-duty law enforcement officer has the authority to enforce a private land owner’s written authorization to communicate on behalf of the land owner an order to an allege trespasser to leave the private property in case of threat to public safety or welfare. AGO 2004-04 (February 13, 2004).

5. PLANSPONSOR.COM CONTINUES SERIES ON “MISBEHAVING IN PUBLIC”:
In the second of a two-part series (see C&C Newsletter for February 18, 2004, Item 2), plansponsor.com turns to the seven trouble signs that your public pension fund may be vulnerable to unethical dealings by board members, vendors or staff. A survey of those who have served in such capacities reveals their warning signs:

1. Staff is too small to evaluate properly the plan’s range of investments and lacks the technology needed to do the job.

2. Staff is too poorly paid to attract and keep quality personnel.

3. Consultants who do not consult (Do all of your plan’s consultants provide substantive advice on investments? Or, do they, in reality, act as mere “placement agents” for money managers?).

4. Elected officials serve as ex officio members of the pension board.

5. Education for board members is inadequate or is provided mainly by vendors who supply investment services to the plan.

6. The pension system includes no internal or external audit function.

7. Board members are not being cited for accepting contributions and gifts from vendors.

Take a look in the mirror. What do you see?

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6. IF YOU’RE RICH, DO NOT SPEED IN FINLAND:
We read in Reuters that one of Finland’s richest men has been fined a record $217,000.00 for speeding. Jussi Salonoja, 27, heir to his family’s sausage business, was caught driving 50 mph in a 25 mph zone. Finnish traffic laws do not put up with such baloney: traffic fines vary according to the offender’s income -- in this case, about $9 Million for 2002. However, the final penalty could still change when the case is heard in court. Recently, a Nokia executive’s $150,000.00 speeding fine was slashed by 95% due to a drop in his income. Gee, that’s still $7,500.00!).

Copyright, 1996-2004, all rights reserved.

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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