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Miami

Cypen & Cypen
NEWSLETTER
for
September 19, 2013

Stephen H. Cypen, Esq., Editor

1.  GOVERNMENTAL AGENCY MAY NOT AVOID PUBLIC RECORDS REQUEST BY TRANSFERRING CUSTODY OF RECORDS: This appeal involved the question of whether a governmental entity may assert a public records exemption on behalf or at the direction of another governmental entity. On May 24, 2012, Appellant, Robert Chandler, made an electronic public records request to the City of Sanford Police Department's Volunteer Program Coordinator ("Coordinator") requesting an original copy of an August 31, 2011 email sent by the Coordinator to George Zimmerman, a former neighborhood watch volunteer. At the time of the request, Mr. Zimmerman was a defendant in an active criminal investigation and prosecution related to the shooting, and ultimate death, of Trayvon Martin. On June 6, 2012, eleven days from the date of his original request, Chandler received an email from the City advising that it was reviewing his request for processing. On June 14, 2012, Chandler filed a pro se petition for writ of mandamus against the City ("Petition") demanding the production of the requested records. On June 21, 2012, the City produced to Chandler a number of August 31, 2011 emails between the Coordinator and Mr. Zimmerman in Adobe Portable Document Format (".PDF") and redacted Mr. Zimmerman's email address from them. Chandler objected that the records produced were not responsive nor did they conform to the requirements of Florida's Public Records Laws. Specifically, Chandler asserted that the City did not have the right to redact Mr. Zimmerman's email address from the records, and was required to produce the records in the manner they were normally maintained, not as .PDF documents that could not be modified or edited. In its defense, the City advised Chandler that it was unable to produce the requested records in their original, un-redacted format pursuant to a directive from the State Attorney. The City further advised that all of its records related to Mr. Zimmerman had been turned over to the State Attorney as part of the criminal investigation and prosecution of Mr. Zimmerman. The State Attorney then reviewed and redacted these records and returned the redacted records to the City as PDFs purportedly for use in responding to public records requests. The City asserted that pursuant to the State Attorney's directive and the ongoing criminal investigation and prosecution, the City did not have authority to release the original records. While the court was sympathetic that the City was placed between a proverbial "rock and a hard place," the court determined that the City was not relieved of its legal responsibility for the public records by transferring the records to another agency. Given the aggressive nature of the public's right to inspect and duplicate public records, a governmental agency may not avoid a public records request by transferring custody of its records to another agency. Despite the instructions from the State Attorney, as a matter of law, the City remained the governmental entity responsible for the public records. Chandler v. City of Stanford, 38 FLW D1945 (Fla. 5th DCA September 13, 2013.)
 
 
2. NEW YORK OFFERS VOLUNTEER FIREFIGHTERS A PLACE TO RETIRE: When it first opened in 1895, the Firemen's Home of New York was a simple working farm along the Hudson River in Hudson, N.Y. The place was intended as a refuge for indigent firefighters with no safe place to live, reports governing.com. It was founded by the Firemen's Association of the State of New York, and eventually grew from a modest house to a three-story red brick building. FASNY was formed in 1872 to advocate for New York firefighters' training, equipment and safety. Over the years, it expanded to represent the interests of volunteer firefighters in the state legislature. Today, the Firemen's Home is the only residence of its kind in the nation for volunteer firefighters. And while the facility still takes firefighters who have little or no money, it is no longer considered a haven for indigent firefighters. Now, residents commit their assets in return for a full-time, full-service home, replete with private rooms, three squares and a chapel. The home also offers more intensive health-care services, including a floor dedicated to residents with Alzheimer's and other forms of dementia. In New York, as in the rest of the country, volunteer firefighters make up most of the fire service: 69% of all firefighters in the U.S. in 2011 were volunteers! Since its beginning, the Firemen's Home has served more than 3,000 firefighters. They come for the familiarity, friendship and camaraderie. All of the residents refer to the facility as a true "home away from home" good job.
 
3. ERRATUM ITEM 3 IN OUR SEPTEMBER 12, 2013 NEWSLETTER CONTAINED A SUBSEQUENT TYPOGRAPHICAL ERROR. THE FIRST WORD SHOULD HAVE BEEN "EMPLOYERS" A REPRINT FOLLOWS:

EMPLOYERS NOT CUTTING EMPLOYEES' HOURS BECAUSE OF ACA:
 There is a myth floating around (what a surprise) that because of the Affordable Care Act, employers are cutting employees' hours, Not true, at least according to the United States Department of Labor. While there are more part-time workers today than there were a decade ago, the trend of businesses hiring more part-time workers has been in evidence since 2007, years before the ACA was even introduced. A Center for Economic and Policy Research study observed that employers do not appear to be changing hours in large numbers in response to the sanctions in the ACA. An analysis from the Center on Budget and Policy Priorities observes that there is scant evidence that health reform is causing a significant shift toward part-time work, noting that the percentage of involuntary part-time workers has decreased since the ACA was signed.  So there.
 
4.  NO BRIGHT-LINE RULE TO ADDRESS DIFFERENT ROLES OF STAFF COUNSEL: John B. McAlpin, Chief of the Sneads Police Department, appealed the Criminal Justice and Standards Training Commission's Final Order suspending his law enforcement certification for eighteen months, to be followed by two years' probationary reinstatement. Steads argued that the procedure followed by the Commission, including Jiaving the prosecutor also act as staff to the Commission at the final hearing, was contrary to law. At the final Commission hearing three attorneys WERE present: Linton Eason, who prosecuted the case on behalf of the petitioner, the Commission; William Furlow, who represented McAlpin; and Brian Fernandes, who served as legal advisor to the Commission. The Commission heard argument from the parties, during which Furlow objected to the fact that the prosecutor, Eason, was also acting as staff to the Commission and that the Commission had received a staff penalty recommendation that was not provided to McAlpin. In addition, during the hearing Eason suggested a voting procedure for    the Commission to follow.  The First District Court of Appeal considered the particular facts and circumstances of the case and determined that the staff penalty recommendation along with other documents clearly portrayed Eason in the dual role of staff counsel, in which capacity he offered advice and recommendations to the Commission, and agency prosecutor, in which capacity he advocated the case against McAlpin and pursued the maximum administrative penalty. The Court further found that this dual-role on Eason's part was augmented by the fact that Eason offered the Commission procedural and legal advice at the final hearing even though Fernandes was present in an advisory role. According to the Court, this enhanced access undermined the Commission's function as an unbiased, critical reviewer of the facts. The Court emphasized that there is nothing inherently inappropriate with consolidating investigative, prosecutorial, and adjudicative authority in a single entity or agency and that all such future cases must be decided on their unique circumstances as there is no bright line rule to accurately address the full spectrum of potential scenarios. Under the fact and circumstances of the present case, the Court reversed and remanded the matter to the Commission for a new hearing. McAlpin v. Criminal Justice Standards and Training Commission, 38 FLW D1953 (Fla. 1st DCA, September 13, 2013).

5. SURPRISING FACTORS THAT PLAY A PART IN DETERMININGWHO GETS HIRED: While strong skills and experience are essential to getting a job, many employers take other factors into account, as well. A new CareerBuilder study finds that a sense of humor, an eye for fashion, or even knowledge of current affairs and pop culture could also play some part in influencing a hiring manager's decision. Employers were asked, if they had two equally qualified candidates, which factors would make them more likely to consider one candidate over another, Their responses included:

  • The candidate with the better sense of humor - 27%
  • The candidate who is involved in his or her community - 26%
  • The candidate who is better dressed - 22%
  • The candidate whom I have more in common with - 21%
  • The candidate who is more physically fit - 13%
  • The candidate who is more on top of current affairs and pop culture - 8%
  • The candidate who is more involved in social media - 7%
  • The candidate who is knowledgeable about sports - 4%

When your looking for a job, the key is selling your personal brand. Employers are not only looking for people who are professionally qualified for the position, but also someone who is going to fit in at the office. Once you land the job, however, the process does not simply stop. Employers will continuously assess personality, performance and behavior when considering prospects for promotions. You want to treat your current job like an extended interview for the next job you want in the company.

6. FPPTA   TRUSTEES   SCHOOL: Florida   Public   Pension   Trustees Association Trustees School will take place on September 29 - October 2, 2013 at the PGA National Resort & Spa at Palm Beach Gardens, Florida. To access information please log on towww.fppta.org. All board of trustee members, and anyone interested in the administration and operation of the Chapters 112, 175 and 185 pension plans should attend trustee school.

7. "THE NUTS AND BOLTS OF SHAREHOLDER LITIGATION:"The educational seminar, entitled "The Nuts and Bolts of Shareholder Litigation," has been developed specifically pension funds and other institutional investors. It will take place on October 16, 2013 at the Westin Diplomat Hotel in Hollywood, Florida. The seminar is free of charge and includes lunch and post-seminar cocktails and snacks. An application for CLE accreditation in Florida is currently pending. The invitation and registration form is available at the following linkhttp://goo.gl/Y3VPJ7. The seminar is sponsored by the law firm of Bernstein Litowitz Berger & Grossmann LLP ("BLB&G").
 
8.  FLORIDA DIVISION OF RETIREMENT ANNUAL POLICE OFFICERS' AND FIREFIGHTERS' PENSION TRUSTEES' FALL CONFERENCE: The 43rd Annual Police Officers' and Firefighters' Pension Trustees Fall Conference will take place on October 22-24, 2013. You may access information and updates about the Fall Conference, including area maps, a copy of the program when completed, and links to register with at the Doubletree by Hilton Hotel Orlando at Seaworld. Please continue to check the FRS website for updates regarding the program at www.myflorida.com/frs/mpf. All police officer and firefighter plan participants, board of trustee members, plan sponsors, and anyone interested in the administration and operation of the Chapters 175 and 185 pension plans should take advantage of this unique, insightful and informative program.

9.  JEWISH WISDOMS: Even a secret agent cannot lie to a Jewish mother.  Peter Malkin

10. DID I READ THAT SIGN CORRECTLY? In a middle school: TOILET OUT OF ORDER. PLEASE USE FLOOR BELOW.

11.TODAY IN HISTORY: In 1893, New Zealand is the first country to grant all its women the right to vote.  

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.

 

 

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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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