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Cypen & Cypen
NEWSLETTER
for
MAY 12, 2004

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. FOR FLORIDA WORKERS’ COMP OFFSET, CAP IS AVERAGE MONTHLY WAGE ESTABLISHED UNDER WORKERS’ COMP LAW:

Terry, a former firefighter, retired from the City of Pembroke Pines, Florida, on a service-incurred disability pension. He subsequently settled his workers’ compensation claim with the City. The subject pension ordinance provides that service-incurred and nonservice-incurred disability benefits shall be reduced or offset by workers’ compensation “to the extent permitted by law.” But what exactly is the “law?” Well, we finally have a definitive answer: When the Supreme Court of Florida in Barragan v. City of Miami said the employer may not offset workers’ compensation payments against an employee’s pension benefits “except to the extent that the total of the two exceeds the employee’s average monthly wage,” it meant the average monthly wage established under workers’ compensation law rather than the average monthly earnings established under the pension ordinance. In Terry’s case, the average monthly wage established under workers’ compensation law was almost $1,000 less than the average monthly earnings established under the pension ordinance. Thus, although there would have been no offset under the latter, there was a complete offset under the former. On review, a circuit court sitting in its appellate capacity approved the Board’s determination of the offset. Among other things, the court found that using the average monthly wage established under workers’ compensation law as the cap is logical in that Sections 440.02(27) and 440.14(1), Florida Statutes, define and deal with “wages” and average “wages” while the subject pension ordinance defines and only deals with “earnings” and average monthly “earnings,” completely different terms. Terry v. Board of Trustees of the City Pension Fund for Police Officers & Firefighters in the City of Pembroke Pines, Case No. 01-018254 (Fla. 17th Circuit, April 28, 2004). We are pleased to have represented the pension board, one of our regular clients.

2. ANONYMOUS LETTERS ALLEGING MISCONDUCT ARE PUBLIC RECORDS:

The Florida Attorney General has recently concluded that anonymous letters sent to municipal officials containing allegations of misconduct by municipal employees are public records and subject to disclosure. As usual, such records may only be disposed of in accordance with the retention schedules approved by the Division of Library and Information Services of the Florida Department of State. AGO 2004-22 (April 30, 2004).

3. PROPERTY APPRAISER CANNOT SHOW LOCATION OF LAW ENFORCEMENT OFFICER’S HOME:

The Florida Attorney General was also questioned about Section 119.07(3)(i), Florida Statutes, in a different context. A county property appraiser has developed an internet-based information data base that allows public access to information of which the appraiser is custodian. The system has a map feature that allows the public to see a graphic representation of specific property. For those individuals who have requested confidential status pursuant to Section 119.07(3)(i)1., Florida Statutes, the graphic representation does not list the home address of their property. However, an individual visiting the website can use the name of a law enforcement officer to retrieve information about property owned by the officer. While the site does indicate that the address is confidential, a visitor can click on the site to view a map that identifies the street upon which a law enforcement officer’s home is located and specifically identifies his home with a large red star imposed over the parcel number. Logically, the Attorney General found that the property appraiser is precluded from making technology available to the public that would enable a user to view a map showing the physical location of a law enforcement officer’s home, even though the map does not contain the actual home address, if the property appraiser has received a written request for confidentiality from that officer. AGO 2004-20 (April 30, 2004). (See C&C Newsletter for January, 1998, for discussion of an earlier Attorney General Opinion on this subject matter.)

4. NEW YORK TIMES UNFAIRLY BLASTS DROPS:

A lead article in the May 5, 2004 New York Times is entitled “Some Cities Struggling to Keep Pension Promises.” We’re not quite certain why that title was chosen, inasmuch as the article is nothing more than a condemnation of deferred retirement option programs. The article fails to make clear that the “lump sum” an employee receives when he terminates employment is his money -- money that would have been his anyway and that is only being held by the pension plan for his ultimate benefit. The writer’s predisposition on the subject is easily detected when she refers to Guns and Hoses as a “yearly party for fire and police pension officials.” One thing is for sure: even the mighty New York Times doesn’t require its writers to know anything about their subject matter.

5. FLORIDA RETIREMENT SYSTEM DODGES FEDERAL BULLET:

The U.S. Department of Health and Human Services now agrees that the Florida Retirement System does not owe the Federal Government any money. The claim, which exceeded $250 Million, was based on alleged overcharges for federal contributions on behalf of state employees who work in federally-funded programs like Medicaid. State officials apparently were successful in convincing federal auditors that FRS’s contribution rates were actuarially sound and properly paid for the benefit of the specific employees involved.

6. PROPOSED EEOC RULE EXEMPTS RETIREE HEALTH BENEFITS FROM ADEA:

By a three to one vote (Republicans-Democrat), on April 22, 2004 the Equal Employment Opportunity Commission voted to approve a rule that would allow employers to reduce or eliminate health benefits for retirees who become eligible for Medicare coverage at age 65 and for retirees who are eligible for Medicare-like state health benefits. The rule would provide relief from the Federal Court of Appeals decision in Erie, which held that ADEA required employers to insure that greater benefits were not provided to retirees prior to their eligibility for Medicare. (See C&C Newsletter for April, 2001, Item 4.) The rule will not take effect until the Office of Budget Management has conducted its review and the rule has been published in the Federal Register. Meanwhile, a copy of the proposed rule is available at http://www.eeoc.gov/policies/regs/retiree_benefits.html.

7. REQUEST MILITARY PERSONNEL RECORDS...ON LINE:

Trying to get military personnel records can be frustrating. Fortunately, the government has tried to simplify things by allowing online record requests. A request can be made by a military veteran or next of kin of a deceased member of the military. Answer a few simple questions and print out the signature verification sheet. Then, within twenty days (which time is mandatory), mail or fax the signature verification, and your request will be processed. Happy hunting at http://www.archives.gov/research_room/vetrecs.

8. SLAIN COPS’ FAMILIES CANNOT SUE CITY:

In 1989, the State of New York enacted legislation creating a right of action when a law enforcement officer is injured due to a defendant’s violation of a rule, requirement, statute or order. The law was in response to a New York Court of Appeals ruling that common law generally bars tort recovery by a police officer injured in line of duty. In two separate cases, the New York Court of Appeals has now ruled that families of slain police officers cannot recover against New York City. In one case, a police officer was killed when a bullet fired by one of his colleagues passed through a door and struck him. The theory was that the officer’s partners violated the law in their use of physical force. In the other case, two detectives were killed by a homicide defendant they were transporting to prison. Having been left alone in the police locker room, the killer had stolen a revolver, which he used to shoot the unsuspecting officers. The theory was that there had been a violation of labor laws addressing dangerous conditions in the workplace. Although the Court of Appeals found that the families did not come close to carrying their burdens of proof, it did hold -- for the first time -- that liability under the 1989 law can be predicated on violation of penal law, even if there was no conviction. This report on McCormick v. City and Williams v. City comes from Law.com.

9. ELEVEN SECRET HERBS AND SPICES, ONE MORON:

We couldn’t resist lifting that caption from FindLaw’s report of an Associated Press story about a robber who called ahead to order a “heist” at KFC. A man called the restaurant and told the manager he was a police officer. He also told the manager that a robber was on his way to the store and that store employees should cooperate so nobody would get hurt. Police planned to grab the robber as he left the store, the caller said. Moments later, a robber showed up, stole money but no police arrived to arrest him. Aha, thought store workers, perhaps the telephone cop and restaurant robber are the same person! Meanwhile, the robber was caught on video and authorities expect to apprehend him shortly. One felony, extra crispy, please.

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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