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Cypen & Cypen
NEWSLETTER
for
SEPTEMBER 21, 2006

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. LABOR UNION IN COLLECTIVE BARGAINING REQUIRED TO PAY FOR COPIES OF PUBLIC RECORDS:

In a 1982 decision, the Florida Public Employees Relations Commission decided that a labor union is not required to pay the per-page cost set forth in Chapter 119, Florida Statutes, the Florida Public Records Act, for copies of documents requested by it from a public employer for bargaining purposes with the employer. In a rather harshly-worded opinion, the Third District Court of Appeal disapproved PERC’s long-standing position. The public employer’s obligation to provide public information under Chapter 447, Florida Statutes, is fully consistent with the bargainer’s obligation to pay the provider a sum not to exceed the statutory maximum established by the Legislature to be paid by all citizens of the state for copies courtesy of the provider. “We do not question the assertion that analysis ... of the requested documents would be accomplished more comfortably in their own offices than at City Hall. However, Florida law does not require the City insure ... creature comforts. Florida law requires only that relevant information be provided.” City of Miami Beach v. Public Employees Relation Commission, 31 Fla. L. Weekly D2289 (Fla 3d DCA, September 1, 2006).

2. SUIT ACCUSES CHICAGO OF CHEATING PENSION FUNDS:

The Chicago Tribune reports that a federal lawsuit filed last week alleges the Chicago Police Department has cheated Illinois state pension funds out of millions of dollars by ignoring a law that requires unclaimed cash to go to the state treasury. The suit contends the city confiscated an estimated $25 Million in cash from people who were arrested and never returned it to the arrestees. At the same time, the city allegedly kept the money, instead of turning it over to the state treasury pursuant to the Uniform Disposition of Unclaimed Property Act, which became law in 1954. In the last six years, the state treasurer’s office has provided more than $500 Million in unclaimed property to the state’s pension funds. The pension funds, which pay retirement benefits for teachers outside of Chicago, judges, state workers, university employees and state legislators, are underfunded by about $38 Billion. The lawsuit is an outgrowth of another suit filed two years ago that challenged police department procedures for inventorying and returning confiscated money. That case, which is still pending, asserts that the city owes more than $3.6 Million to over 20,000 people. A police spokesperson says the department does not turn over money to the state treasury pursuant to UDUPA, because it does not apply to funds so held. The city says it relies on the Law Enforcement Disposition of Property Act, which, provides, that abandoned property may be disposed of by law enforcement. Very interesting.

3. NYC POLICE AND FIREFIGHTERS GET PRESUMPTION FOR STROKES:

Over strong objections from the Mayor of New York City, Governor George Pataki signed a law that categorizes strokes as a line-of-duty disability for New York City police officers and firefighters. The new law adds strokes to a list of ailments, including heart disease, hepatitis, HIV and tuberculosis, that the state had officially deemed line-of-duty disabilities for police officers and firefighters. The state estimates that the bill would cost the city only $375,000 a year, rising to $750,000 in a few years. In Florida, firefighters have presumptions for tuberculosis, hypertension and heart disease under Sections 112.18 and 175.231, Florida Statutes, and for hepatitis and meningitis in Section 112.181, Florida Statutes. Police officers have the same presumptions under Sections 112.18 and 112.181, Florida Statutes, and for tuberculosis, hypertension, heart disease and hardening of the arteries under Section 185.34, Florida Statutes.

4. PLAN NOT LIABLE FOR ERRONEOUS BENEFIT ESTIMATE:

Considering retirement, Qwest Communications employee Christiansen requested and received several estimates of his expected pension benefit from the pension plan. Christiansen retired, and the plan conducted a final audit, which determined that his benefit under the option he selected would be $1,484 per month rather than the final pre-retirement estimate of $1,754 per month. The plan denied Christiansen’s claim for the greater amount. He then filed an action under the Employee Retirement Income Security Act against the plan. He sought equitable relief for the plan’s alleged breach of fiduciary duty. The trial court entered summary judgment in favor of the plan, and Christiansen appealed. The summary plan description advised participants that they may obtain pension benefit estimates by e-mail or by telephone, but added the following caution: “These estimates are not binding; if a mistake is made, you will be paid the corrected amount, even if less than the estimated amount.” (Over a period of about eight months, Christiansen requested and received five benefit estimates by telephone, ranging from $1,715 to $1,763 per month, depending on the proposed retirement date.) Further, when Christiansen decided to retire, he received and signed a benefit option election form, which, too, warned that the estimated benefit amount “is subject to change, based on a final review of payroll and applicable plan provisions.” Significantly, Christiansen admitted that $1,484 was the actual benefit due him under terms of the plan. In affirming, the appellate court held that a mistake in the administration of a pension plan is not a violation of the duty of loyalty, absent evidence that the plan acted in the interest of someone other than participants and beneficiaries. Further, Christiansen failed to prove that the plan failed to exercise ordinary care in selecting and retaining a consultant to run its automated system of providing estimates. Christiansen v. The Quest Pension Plan, Case No. 05-3956 (U.S. 8th Cir., September 11, 2006).

5. MEDICARE PREMIUMS AND DEDUCTIBLES FOR 2007:

U.S. Department of Health & Human Services has announced Medicare premiums and deductibles for 2007. The premium to purchase Medicare Part A coverage for older Americans uninsured under Medicare Part A will be $410 a month beginning January 1, 2007, up from $393 in 2006. The Medicare Part A inpatient hospital deductible will be $992 in 2007, up from $952 in 2006, for up to 60 days of Medicare-covered inpatient hospital care in a benefit period. The Medicare Prescription Drug, Improvement and Modernization Act of 2003, as amended by the Deficit Reduction Act of 2005, provides that Medicare beneficiaries with higher incomes must pay a larger portion of their Medicare Part B premium amounts based on a predetermined formula, which will be phased-in starting in 2007 and ending in 2011. The “standard” premium (individuals with income of up to $80,000) for 2007 is $93.50, an increase of $5 from 2006 (and considerably lower than earlier projected). Finally, the Medicare Part B deductible will be $131 for 2007, up from $124 in 2006.

6. QUOTE OF THE WEEK:

“Age is an issue of mind over matter. If you don’t mind, it doesn’t matter.” Mark Twain

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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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