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Miami

Cypen & Cypen
NEWSLETTER
for
SEPTEMBER 9, 2010

Stephen H. Cypen, Esq., Editor

1.  MIAMI POLICE UNION SUES CITY, STATE:   Fraternal Order of Police, Miami Lodge 20, has filed a declaratory judgment action against the City of Miami and State of Florida to declare unconstitutional Section 447.4095, Florida Statutes, and to declare that the City of Miami is in a state of financial emergency, pursuant to Section 218.503, Florida Statutes.  The union is the sole and exclusive bargaining agent with the City of Miami for all persons classified, police captain and below.  The union and the City have entered into collective bargaining agreements that are binding through September 30, 2010 and thereafter until lawfully replaced.  On July 28, 2010, despite substantial wage and benefit concession offers made by union through bargaining proposals, the City invoked Section 447.4095, Florida Statutes, claiming a financial urgency that requires modification of the collective bargaining agreement.  Section 447.4095, Florida Statutes, provides as follows:

In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her legal representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency.  If after a reasonable period of negotiation which shall not exceed 14 days, a dispute still exists between the public employer and the bargaining agent, an impasse shall be deemed to have occurred, and one of the parties shall so declare in writing to the other party and to the commission.  The parties shall then proceed pursuant to the provisions of s. 447.403.  An unfair labor practice charge shall not be filed during the 14 days during which the negotiations are occurring pursuant to this section.

The term “financial urgency” is vague, subject to no objective criteria and creates a unilateral privilege to the public employer to impair or impede expectancies of the non-public party to the contractual agreement.  (The Senate Bill Analysis performed when the bill was first considered for passage clearly sets out the law’s vulnerability.)  By failing to provide any standards to define “financial urgency,” by failing to provide any criteria to measure “financial urgency” and by providing unilateral discretion to trigger a process derogation of a contractual obligation, Section 447.4095, Florida Statutes, violates Florida Constitution provisions prohibiting abridging the right to bargain collectively, impairing obligation of contracts, deprivation of property without due process of law, giving unrestricted discretion to an agency or entity in applying legislative enactments and equal protection of the law.  Thus, the union seeks a declaration of Section 447.4095, Florida Statutes, is unconstitutional.  Section 218.501, Florida Statutes, is entitled “Local Governmental Entity, Charter School, Charter Technical Career Center, and District School Board Financial Emergencies Act.”  Section 218.503, Florida Statutes, subjects local government entities to oversight by the Governor when any one or more of the following conditions occurs: failure to transfer at the appropriate time, due to lack of funds, contributions for any pension, retirement or benefit plan of an employee, or, failure for one pay period to pay, due to lack of funds, retirement benefits owed to former employees.  A local governmental entity shall notify the Governor and the Legislature Auditing Committee when one or more of the foregoing conditions have occurred or will occur if action is not taken to assist local governmental entity.  Inasmuch as the City has advised the union that it is unable to fund the economic terms of the existing collective bargaining agreement for the 2010-2011 fiscal term, the City has non-discretionary duty to notify the Governor in accordance with Section 218.503(2), Florida Statutes.  Thus, the union seeks a declaratory judgment determining that the City is in a state of financial emergency pursuant to Section 218.503, Florida Statutes, and an order authorizing the Governor to invoke his constitutional powers pursuant to Section 218.503(3), Florida Statutes.  When one compares the vague and ambiguous provisions of Section 447.4095, Florida Statutes with the specific provisions of Section 218.503, Florida Statutes, it is difficult to see how the former can survive judicial scrutiny. 

 

2.  POSSIBLE PENSION BAILOUT:  A report from thehill.com indicates labor groups will be invited to the US Chamber of Commerce to talk about an alarming shortfall in state employee pension plans that some believe could lead to a new government bailout.  The Chamber believes the total shortfall for state pension funds could run as high as $3 trillion dollars.  A Chamber spokesperson said the event is in the early stages of development, and it is unclear which unions would be invited to participate or when the session would be held.  While the faltering economy has kept the dire state of pensions from grabbing many headlines, several experts agree that absent drastic measures these funds could be the next financial calamity that receives a government bailout.  Pension funds suffered when market funds fell during the financial crisis that began in 2008.  As a result, experts believe drastic cuts may be required unless the federal government steps in.  The Chamber hosted a similar conference in July, where union members complained about not having a seat at the debate table.  The July conference looked at pension plans for state government employees that are underfunded.  Inasmuch as nearly half of all union members work in the public sector, they will likely have a vested interest in the fate of these funds.  Of course, business groups are worried the problems with pension funds will lead to higher taxes on businesses. 

 3. TAKING IN TEEN MAY VIOLATE FLORIDA LAW:  A letter to the Orlando Sentinel and the answer by a Florida attorney should sound a cautionary note.  Here is the letter:

A couple of months ago my neighbors kicked their 17-year-old adopted daughter out of their home.   They did so only after the teen had told police that her parents were abusive, only to be advised by the police that her parents had the legal right to hit her.  The teen has been living with us since being evicted.  If her parents decide to ask for her back, what legal rights does she have to protect herself?

Here is the answer from a Florida attorney:

Your decision to take in the child to live in your home is a violation of Florida law, and is legally considered to be an interference with parental rights.  While a police officer may have told the teen her parents had a legal right to hit her, they do not have the legal right physically to abuse her.  If there is an allegation of physical child abuse and you know about it, then you are required immediately to report it to the Florida Department of Children and Families.   Do so at once!

No good deed ever goes unpunished. 

4. DEAF EMPLOYEE MAY BE HEARD YET:  Centeno has been deaf since birth, and his first and primary language is American Sign Language.  ASL is a visual, three–dimensional, non-linear language, and its grammar and syntax differ from the grammar and syntax of English and other spoken languages.  The Equal Employment Opportunity Commission filed suit under the American with Disabilities Act, alleging that UPS Supply Chain Solutions failed to provide reasonable accommodations for Centeno’s deafness because UPS did not provide him with a sign language interpreter for certain staff meetings, disciplinary sessions and training.  The federal district court granted summary judgment to UPS on all claims.  The EOC appealed the district court’s decision.  Finding that there were genuine issues of material fact as to whether UPS unlawfully discriminated against Cetnteno by failing to make reasonable accommodations, the United States Ninth Circuit Court of Appeals reversed.  The appellate court concluded that there was a genuine issue of fact regarding whether agendas, contemporaneous notes and written summaries contained information sufficient to enable a person reading those documents to enjoy the same benefits and privileges of attending or participating in weekly meetings as other employees.  The court also concluded that there was an issue of fact regarding whether UPS was aware or should have been aware that such modifications were ineffective as to Centeno.  Further, that there was a genuine issue of fact as to whether UPS was aware or should have been aware that modifications for weekly meetings, which relied on Centeno’s capacity to understand written English, were ineffective.  Finally, the trier of fact could conclude that UPS failed to explore possible accommodations in good faith.  In sum, an employer has discretion to choose among effective modifications, and need not provide the employee with accommodation he requests or prefers, but an employer cannot just satisfy its obligations under ADA by providing an ineffective modification.  U.S. Equal Employement Opportunity Commission v. UPS Supply Chain Solutions, Case No. 08-56874 (US 9th Cir. August 27, 2010).

5.  LAWYERS DUKE IT OUT IN DODGERS DIVORCE TRIAL:   The contentious divorce trial of Frank and Jamie McCourt opened in a Los Angeles courtroom, with lawyers for each side accusing the other of engaging in bad faith.  Law.com reports that control of the Los Angeles Dodgers could rest on the outcome.  Frank and his lawyers deceived Jamie, her lawyers and the court, claimed Jamie’s attorney.  Frank’s attorney countered that former family lawyer attorney Jamie was attempting to become the first successful spouse to invalidate an agreement that she proposed and the first divorce lawyer to claim she did not understand her own postnuptial agreement.  The trial could hinge on that point.  Jamie is attempting to invalidate the marital property agreement the couple signed in 2004, one year after they purchased the National League franchise.  Proceedings are expected to last through September, and also to highlight the attorneys who advised the couple about the agreement.  Former Dodger slugger Edwin “Duke” Snider would have gotten a kick out the circus atmosphere. 

6.  PUBLIC EMPLOYEE PENSION “REFORM” RECIPE FOR DISASTER:  Recently many opportunistic politicians around the state of California have been on a rant against public employee pensions, calling for draconian “reform.”  A more accurate description would be “it’s about time public employees joined the race to the bottom,” writes the president of the Los Angeles Police Protective League in a Los Angeles Daily News opinion-piece.  While many people, including the Daily News, calling for reform or acknowledging that private sector workers have lost tremendous value in their retirement plans, incredibly they present that as a model for public sector employees!  Very rarely do those calling for change take the time honestly to discuss how a 401(k)-styled plan would provide for a secure and dignified retirement for employees.  That is not a surprise; the 401(k) approach to retirement savings is, and will continue to be an absolute disaster for this country—meaning workers who retire under its auspices with the choice of being penniless in retirement or working until they die.  While public pension plans have taken severe hits, they have a long-term investment outlook, and their obligations are not due in full in the next five, 10 or even 20 years.  By contrast, people who are within five to 10 years of retirement will have great difficulty recovering the value of their 401(k) accounts without greatly stretching their working lifetimes.  Many who have recently retired under a 401(k) account will be force back to work.  The real crisis in this country is not largely self-supporting pensions, but reliance on the 401(k) plans for retirement the most private sector companies have set up for their employees.  Tried-and-true pension plans for Los Angeles Police Department officers has been around since 1899.  The Los Angeles Fire and Police Pension system, even after the economic downturn is currently 96.2% funded.  Members contribute up to 9% of their pay, adding over $120 million dollars for the 2010-2011 fiscal years.  Even with this sizable amount, the majority of money needed to fund the pension system comes from their investments, not contributions by the city or members.  (And then there was the poor-year period when employers took a contribution “holiday,” adding little or nothing to the pension system.)  During those years, pension reformers of today remain silent, as the government shirks its pension obligation, helping to create the situation we see today.  The call for future employees to rely on social security in lieu of pensions is strange, considering that the social security system faces a 5.7 trillion dollar short-fall over the next decades.  It is vitally important to look at the city’s long-term viability, which is dependent upon a stable, well-trained and fairly compensated public work force.  In good economic times, public employment offers lower salaries, no bonuses, no stock options and no similar perks, in the private sector.  The trade-off for being a police officer, firefighter or teacher has always been the security of a retirement after a lifetime of public service.  If that trade-off is taken away, who is going to devote his working career to public service and guarantee himself inadequate resources for retirement?  Anyone with common sense should wonder why the solution to issues facing public pensions would be to switch employees to a retirement system that is a demonstrated failure.  Responsible leaders in California should not be advocating for a system for public employees – or any employee – that has already failed millions of hard working Americans.

 7. ALL PUNS INTENDED: A dyslexic man walked into a bra.

8. OXYMORON: An oral contract isn’t worth the paper its written on.

9. AGING JOKES: Don't let aging get you down. It's too hard to get back up!

10. FABULOUS RANDOM THOUGHTS:  If you want the rainbow, you got to put up with the rain.

11. QUOTE OF THE WEEK: “Plans are nothing; planning is everything.”  Dwight D. Eisenhower

12. 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. 

13. 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 http://www.cypen.com/subscribe.htm.  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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