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Cypen & Cypen
AUGUST 11, 2011

Stephen H. Cypen, Esq., Editor

1.      JUDGE ORDERS REFERENDUM ON MIAMI BEACH FIREFIGHTERS AND POLICE OFFICERS PENSION AMENDMENTS: So many readers requested copies of the Final Judgment referred to in our Special Supplement dated August 4, 2011, we are hereby providing a link to said Final Judgment:  

2.      POLICE SERGEANTS NOT EXEMPT FROM OVERTIME UNDER FLSA: Plaintiffs-Appellants, sergeants in the New York City Police Department, brought suit against the City, alleging denial of overtime pay under the Fair Labor Standards Act of 1938. They appealed a judgment of the United States District Court for the Southern District of New York in favor of the City, and sought review of the district court’s Opinion and Order denying their motion for summary judgment and sua sponte granting partial summary judgment in favor of the City.  The Department of Labor appeared as amicus curiae in the appellate court, and provided its interpretation of the FLSA’s overtime pay regulations pertinent to the case.  When an agency’s regulations are ambiguous, a court must defer to the agency’s interpretation of its own regulations, unless that interpretation is plainly erroneous or inconsistent with the regulations or there is any other reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question. The appeal primarily required the court to determine whether DOL’s interpretation of its regulations is plainly erroneous or inconsistent with the regulations. The appellate court concluded that the DOL’s interpretation is not plainly erroneous or inconsistent with pertinent FLSA regulations, and thus is entitled to controlling deference.  Applying that interpretation to the facts of the case, the appellate court concluded the primary duty of sergeants is not “management,” and therefore plaintiffs do not qualify for the “bona fide executive” exemption from FLSA’s overtime pay requirements. Thus, the appellate court reversed the district court’s judgment. Mullins v City of New York, Case No. 09-3435 (U.S. 2d Cir., August 5, 2011). 

3.      SAN DIEGO PENSION BOARD GIVES UP PRIVACY FIGHT: San Diego County Employees Retirement Association announced that it had obtained the direction it sought from appellate courts in an untested legal area, and mitigated the potential for harm associated with requiring release of names and benefit amounts of members receiving retirement benefits in excess of $100,000.  As such, SDCERA will not continue to litigate in the Supreme Court of California. SDCERA did not originally produce the information in response to a request by California Foundation for Fiscal Responsibility to disclose the information, because according to the 1937 Act retirement law, which governs SDCERA, such information is considered private.  At the time, the law was unclear, as no appellate court had previously addressed the issue. In addition, SDCERA members expressed concern for their safety, for which the trial court agreed SDCERA made a strong and undisputed evidentiary showing of potential financial and physical harm to members that could result from such disclosure. The Board owed it to its members to protect them from disclosure, and did the right thing in fighting for their safety and allowing the courts to decide. The appellate court has ruled in a published opinion that certain information should be disclosed to CFFR, but that CFFR is prohibited from posting the last names on the internet or any publicly available site.  SDCERA stands by its decision to take the issue to court rather than have produced the information in face of unclear law, and accepted any risk of harm to its members without fighting for concessions. 

4.      KENTUCKY JURISPRUDENCE: From a long-time reader, we received a copy of an order from the Commonwealth of Kentucky Circuit Court canceling a scheduled jury trial because the parties had settled. In his July 19, 2011 order, the circuit judge said: 

And such news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory. 

The case, which had been filed in 2009, apparently spawned quite a bit of paper: “The Clerk shall engage the services of a structural engineer to ascertain if the return of this file to the Clerk’s office will exceed the maximum structural load of the floors of said office.” Because we received this order from a very reliable source, we did not seek to verify it. Not doing so, makes us as nervous as a long-tailed cat in a room full of rocking chairs. 

5.      ANSWERS TO TRIVIA QUESTIONS: Last week we posed three trivia questions (see C&C Newsletter for August 4, 2011, Item 8). Well, here are the answers: 

  1. In the 1959 eponymous song sang by Lloyd Price, Stagger Lee shot Billy. 
  2. The Royal Teens sang “Short Shorts.”  
  3. Bob Gaudi, of the Four Seasons, co-wrote “Short Shorts.” He was 15 at the time.  

Several people got one or more answers, but nobody got all three. Let’s just say our reading audience is too young to remember the 50’s. 

6.      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.):  I used to be indecisive. Now I'm not sure. 

7.      QUOTE OF THE WEEK: “The sooner you fall behind, the more time you’ll have to catch up.” Steven Wright

8.      ON THIS DAY IN HISTORY: In 1956, Elvis Presley releases “Don’t Be Cruel.” 

9.      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. 

10.    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 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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