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Cypen & Cypen
DECEMBER 15, 2005

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


By Order dated December 7, 2005, the Supreme Court of Florida has unanimously declined to accept jurisdiction and denied review of the Third District Court of Appeal’s decision affirming an administrative order directing forfeiture of former Miami Chief of Police Donald Warshaw’s city retirement benefits (see C&C Newsletter for September 15, 2004, Item 1). As the Florida Appellate Rules do not permit motions for rehearing of denials of petition for review, the matter is final. However, there is one matter yet to be determined: whether or not Section 112.3173(5)(d), Florida Statutes, is applicable:

If any person’s rights and privileges under a public retirement system are forfeited pursuant to this section and that person has received benefits from the system in excess of his or her accumulated contributions, such person shall pay back to the system the amount of the benefits received in excess of his or her accumulated contributions. If he or she fails to pay back such amount, the official or board responsible for paying benefits pursuant to the retirement system or pension plan may bring an action in circuit court to recover such amount, plus court costs.

Because forfeiture determinations generally take an extended period of time, it is not unusual that a pension board make payments in excess of accumulated contributions before forfeiture has been determined. Once again, we served as co-counsel for our regular client, the pension board. Warshaw v. The City of Miami Firefighters’ and Police Officers’ Retirement Trust, Case No. SC05-29 and SC05-30 (Fla., December 7, 2005).


Apparently Florida is more advanced than the federal government when it comes to pension forfeitures. According to an Associated Press story in the Seattle Times, Republican House members, disturbed that their former GOP colleague Randy “Duke” Cunningham will get to keep his pension despite pleading guilty to bribery, want to pass a law to strip federal pensions from white-collar criminals. Under federal law, only conviction for a crime against the United States, such as treason or espionage, can result in a member of Congress or other federal employee losing his government pension. Thus, Cunningham will keep his pension, despite his admission to taking $2.4 Million in bribes from defense contractors and others in exchange for government contracts. Cunningham’s congressional pension will be about $40,000 a year, according to an Office of Personnel Management formula. He resigned last month and faces 10 years in prison when he is sentenced early next year. At a press conference, several Republicans introduced the “Public Trust and Accountability Act,” which would add a list of white-collar crimes, including bribery, solicitation of gifts, perjury, making false claims and lying to a grand jury, to offenses that would result in loss of federal pensions. The legislation would apply to all federal employees. (Warning to the naive: about 10 years ago similar legislation applicable only to members of Congress passed the House, but the bill died in the Senate.) Even though various members of Congress, mostly Republicans, are under scrutiny for possible ethics violations, and lawmakers say there is a critical mass in support of denying pensions to white-collar criminals, don’t hold your breath.


The California Public Employees’ Retirement System, the nation’s largest public pension system, now has assets in excess of $200 Billion. CalPERS began in 1932, with assets of under $1 Million! CalPERS hit the $100 Billion mark in May, 1996. About 80% of current assets is generated by investment returns, with the balance coming from employer and employee contributions.


A.G. Edwards has released its inaugural Nest Egg Index, ranking the nation’s best-saving cities and states. The Index ranks America’s 200 top-performing communities and the 50 states based on residents’ personal savings and investing behavior. People in the eastern United States generally are doing a better job of building personal savings than their counterparts west of the Mississippi. Southern locales trail their northern neighbors by a wide margin. San Jose, California, earned the top spot, barely edging out the Nassau-Suffolk Counties on New York’s Long Island. The balance of the top ten are Middlesex-Somerset-Hunterdon (NJ), San Francisco, Bergen-Passaic (NJ), Minneapolis-St. Paul, Monmouth-Ocean (NJ), Barnstable-Yarmouth (MA), Ann Arbor (MI) and Rochester (MN). In terms of states’ rankings, New Jersey was first, followed by Connecticut, Minnesota, New Hampshire and Massachusetts. Florida came in 35th, although it did tie for first for states with the most communities making the top 200 list, at 13.

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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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