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Miami

Cypen & Cypen
NEWSLETTER
for
JUNE 5, 2008

Stephen H. Cypen, Esq., Editor

1. RECENT FLORIDA ATTORNEY GENERAL OPINIONS:

The following are short summaries of recent Florida Attorney General Advisory Legal Opinions that may be of interest to readers:

A. A city council may not temporarily relocate the site of public meetings to an adjacent municipality, in the absence of state legislative authorization to do so. Although the request for opinion indicated that no commercial space is available for lease to the city for conducting council meetings, the Attorney General said it may be possible for the city council to hold meetings in a school auditorium, church fellowship hall or residential development clubhouse located within the city, on a temporary basis until construction of the new city hall is complete. Further, the city may not grant itself extraterritorial authority through local legislative action. AGO 2008-01 (January 9, 2008).

B. A community citizens police academy that is made up of citizens and established to provide a vehicle for citizen involvement on how the police department functions is not subject to the Government in the Sunshine Law by attendance and participation of two or more elected officials. However, the Attorney General cautioned that if more than one city council member attends such classes or programs, no discussion or debate may take place among the council members on these issues. AGO 2008-18 (May 5, 2008).

C. Law enforcement patrol trip sheets identify the officer, location and hours he worked, and identifies locations to which officers have responded for emergency and non-emergency purposes. Such sheets are a historical account of an officer’s actions during his shift. A municipal police department has taken the position that revealing this information compromises officers’ and the public’s safety due to location, time and area assignment being clearly delineated on the trip sheet. The department asserts that production of patrol trip sheets implicates a statutory exemption from public disclosure by revealing tactical field operations and deployment plans. While there may be instances where information in a patrol trip log reflects an officer’s compliance with an operational plan responsive to an emergency as defined by statute, patrol trip logs do not constitute an operational or tactical plan to be followed in responding to such an emergency. Thus, patrol trip sheets of a police officer are not generally exempt from the disclosure provisions of Chapter 119, Florida Statutes. AGO 2008-23 (May 9, 2008).

D. Home addresses and other protected personal information of spouses of law enforcement personnel who are employed by a school board are exempt from disclosure under Chapter 119, Florida Statutes, and the school board is not required to report such information to the bargaining representative. AGO 2008-24 (May 21, 2008).

E. With enactment of Chapter 145, Florida Statutes, the Legislature has sought to establish a uniform system for compensation of officers prescribed therein. To permit a county officer to alter the statutorily-prescribed compensation will be contrary to the express legislative intent and the provisions of Article II, Section 5(c), Florida Constitution, which requires that salary of county officers be “fixed by law.” Because the Legislature has prescribed a salary for sheriff as a county officer, the sheriff does not have authority to alter such compensation by foregoing a portion thereof and accepting a lesser salary. Nothing, however, precludes the sheriff from donating his salary, or a portion thereof, to the county once he has received the statutorily-prescribed salary. AGO 2008-28 (May 28, 2008).

F. A reporter for a local newspaper asked the county property appraiser to provide a list of names of individuals who had made written requests for protection of their personal information pursuant to Chapter 119, Florida Statutes. The request was limited to providing a list of names; home addresses and other exempt information were not requested. In response to the request for his opinion, the Florida Attorney General found that the county property appraiser is required, pursuant to the Public Records Law, to provide a copy of any list maintained by his office of names of individuals whose home addresses are exempt from public records disclosure pursuant to Chapter 119, Florida Statutes. The custodian of public records must provide a copy of public records maintained by that office in the format in which they are maintained. However, a public records custodian is not required to reformat records in order to comply with a request under Chapter 119, Florida Statutes. Thus, if the county property appraiser maintains a list of names of those officers and employees who have requested the exemption of their home addresses, telephone numbers and photographs from public records disclosure pursuant to statute, the property appraiser must provide for inspection and copying of these records. AGO 2008-29 (May 29, 2008).

2. WOMEN, MARRIAGE AND SOCIAL SECURITY BENEFITS REVISITED:

An article in the Social Security Bulletin deals with women, marriage and Social Security benefits. Introduced into the Social Security program in 1939, spouse and survivor benefits have important implications for the retirement experience of women. According to the authors, who are with the Office of Retirement and Disability Policy, at the end of 2005, 12.9 million women Social Security beneficiaries aged 62 or older (59%) received at least part of their benefit as wives or widows of entitled workers. For these women, a spouse or widow benefit provided a larger payment than that of their own earnings record. A number of dynamic factors influence the number of women (and men) eligible for, and claiming, Social Security spouse or survivor benefits at retirement. Past and present marital status determines potential benefit eligibility (typically, one must be currently married, widowed or have had a 10-year marriage to qualify), and the benefit amount is based on a person’s lifetime earnings record in relation to a current or former spouse. The article focuses on the marital history component of eligibility, while acknowledging that large-scale changes in women’s workforce attachment over the past half century, such as increases in labor market participation and earnings relative to men, have led to an increase in the share of women retirees receiving at least part of their benefit based on their own earnings record.

3. ARE PEOPLE CLAIMING SOCIAL SECURITY BENEFITS LATER?:

Today, the retirement income system -- comprising Social Security and employer-sponsored pension plans -- is contracting, at least according to a new Issue in Brief from Center for Retirement Research at Boston College. To compensate, people need to work longer to ensure an adequate income over many years throughout retirement. A few additional yeas in the labor force can make a big difference. Working longer directly increases current income; it avoids the actuarial reduction in Social Security benefits; it allows people to contribute more to their 401(k) plans; and it shortens the period of retirement. Indeed, people have begun to respond. The long-term trend toward early retirement ages came to a halt in the mid-1980s, and labor force participation rates at older ages actually began to increase in the mid-1990s. The challenge is to reconcile this uptick in work effort with the benefit claiming data published by the Social Security Administration. These data, which are released annually, show the percent of workers claiming benefits who are age 62, 63, 64, etc. These data suggest that the proportion of older men who claim their Social Security benefits as early as possible has not changed at all over the last 25 years. The problem is that when the size of the group turning age 62 is increasing, the annual claim data can provide a misleading picture. In order accurately to follow claiming behavior over time, one must look at behavior by cohorts. That is, of the potential claimants turning 62 in a given year, what percent claimed benefits as soon as possible? The Brief analyzes trends in claim behavior over time using SSA data for both claim year and cohort distributions. It finds that the cohort data, unlike the claim year data, show the share of people claiming Social Security retirement benefits when they attain age 62 has been falling since the mid 1990s. This decline in people claiming early benefits found in cohort data is fully consistent with the increase in labor force participation at older ages.

4. AIRLINE PILOTS RETIREMENT LAWSUIT -- AN UPDATE:

In 1960, the Federal Aviation Authority imposed a mandatory retirement age of 60 on pilots in the U.S. In 1978, the International Civil Aviation Organization adopted a less restrictive rule allowing any member State to prohibit pilots of “foreign” carriers from operating in its airspace as Pilot-in-Command (captain only, no age limit for co-pilots) on or after their 60th birthday. Other countries asked the ICAO to reconsider that rule, and over the last decade, the mandatory retirement age has been challenged in the U.S. by a number of pilots grounded by it. In 2006, the ICAO adopted 65 as the maximum age for pilots to fly as captain in multi-pilot crews, provided another required pilot is under 60. The U.S. was required as a matter of treaty to accept pilots of foreign aircraft that complied with ICAO’s new rule. In December 2007, Congress passed, and the President signed, the Fair Treatment for Experienced Pilots Act, which raised the maximum age for pilots to fly as captain in multi-pilot crews, as long as another required pilot is under 60, just like the ICAO rule. After the ICAO rule went into effect but before FTEPA was enacted, several pilots petitioned FAA to waive its rule on mandatory retirement at 60. FAA denied all of those petitions, and last June, the Senior Pilots Coalition sought review of those petitions in the Court of Appeals for the DC Circuit. When FTEPA went into effect, the law gave these pilots little relief because it was explicitly made not retroactive. In other words, pilots who were under 65 but who had been forced to retire before December 13, 2007, were afforded no relief by FTEPA. FAA (naturally) moved to dismiss the petitions for review on grounds that FTEPA mooted them. The pilots responded, challenging constitutionality of FTEPA. According to an article in Blog of Legal Times, the DC Circuit has set a briefing schedule, which requires the Senior Pilots Coalition to file a brief next week. See our previous Newsletter items at C&C Newsletter for January 11, 2007, Item 10 and C&C Newsletter for December 21, 2006, Item 1 and stay tuned.

5. SAVINGS NEEDED TO FUND HEALTH INSURANCE AND HEALTH CARE EXPENSES IN RETIREMENT:

The current Issue Brief from Employee Benefit Research Institute examines the uncertainty of health care expenses in retirement by using a Monte Carlo simulation model to estimate the amount of savings needed to cover health insurance premiums and out-of-pocket health care expenses. This type of simulation is able to account for uncertainty related to individual mortality and rates of return, and computes the present value of the savings needed to cover health insurance premiums and out-of-pocket expenses in retirement. These observations were used to determine asset targets for having adequate savings to cover retiree health costs 50, 75 and 90 percent of the time. Many individuals will need more money than the amounts reported in the piece, because the analysis does not factor in the savings needed to cover long-term care expenses, and does not take into account the fact that many individuals retire prior to becoming eligible for Medicare. However, some workers will need to save less than what is reported if they keep working in retirement and receive health benefits as active workers. About 12 percent of private-sector employers report offering any Medicare supplemental health insurance. The amount increases to about 40 percent among large employers. Overall, nearly 22 percent of retirees age 65 and older had retiree health benefits in 2005 to supplement Medicare coverage. As recently as 2006, 53 percent of retirees age 65 and older were covered by Medicare Part D, 24 percent had outpatient prescription drug coverage though an employment-based plan. Only 10 percent had no prescription drug coverage. Among those who purchased prescription drug coverage at age 65 in 2008, men would need between $79,000 and $159,000 with median prescription drug expenses (50th and 90th percentiles, respectively), and between $156,000 and $331,000 with prescription spending that is in the 90th percentile. Women would need between $108,000 and $184,000 with median prescription drug expenses (50th and 90th percentiles, respectively), and between $217,000 and $390,000 with prescription spending that is at the 90th percentile. The savings needed for couples would range from $194,000 at the 50th percentile to $635,000 at the 90th percentile. Among those who have employment-based retiree health benefits to supplement Medicare, but who must pay their own premiums, men would need between $102,000 and $196,000 in current savings (50th and 90th percentiles, respectively) to cover health care costs in retirement. Women would need between $137,000 and $224,000, respectively, due to their greater longevity. The savings needed for couples would range from $154,000 to $376,000. The declining availability of retiree health benefits may partly explain the rising labor force participation rate among individuals ages 55-64. Between 1996 and 2006, the labor force participation rate increased from 67 percent to 69.6 percent for men and from 49.6 percent to 58.2 percent for women. “Monte Carlo” simulation model? ... nothing like shooting craps with your health care!

6. HUMOR FOR LEXOPHILES:

The dead batteries were given out free of charge.

7. QUOTE OF THE WEEK:

“Why is there so much month left at the end of the money?” John Barrymore

 

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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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