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Cypen & Cypen
DECEMBER 22, 2005

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


A report from National Conference on Public Employee Retirement Systems indicates that the House of Representatives passed its version of pension reform legislation on December 15, by a vote of 294-132. The House passed HR 2830, the Pension Protection Act of 2005, which includes two provisions important to the public sector. Section 1003 of HR 2830 is NCPERS’ health care initiative, the Healthcare Enhancement for Local Public Safety (HELPS) Retirees Act. The retirement provision would provide up to $5,000 on a pre-tax basis to retired public safety officers and their dependents for use toward health care insurance and long-term care insurance premiums. It would exclude from gross income distributions from retirees’ pensions used for health insurance premiums. Retirees will be able to use disbursements from their governmental defined benefit pension plans or their 403(b) and 457 defined contribution plans for this purpose. The HELPS Retirees was originally introduced as HR 2177, but due to lobbying efforts of NCPERS and other public safety organizations, it was incorporated into HR 2830. Section 905 of HR 2830 eliminates the 10% early distribution penalty on a governmental DROP plan for public safety officers prior to age 55. Under current law, retirees under age 55 who take a lump sum distribution from a DROP plan are subjected to the early distribution penalty. The 55 age limit impacts many public safety retirees due to mandatory early retirement age for public safety officers in some jurisdictions. The Senate’s pension reform bill, Pension Security and Transparency Act (S 1783), passed the Senate on November 16. For public sector pensions, S 1783 contains provisions that would clarify certain administrative rules, specifically:

  • Clarification of rules regarding purchase of service credit, using funds from a 403(b) or 457 plan to purchase service credit in a governmental defined benefit plan.
  • After-tax contributions can be rolled over from one qualified retirement plan to another plan (either DB or DC).
  • Providing “good faith” coverage for plans that comply with minimum distribution rules, if the plan complies with statutory requirements.
  • Changing the 10% early distribution penalty from a DROP plan for public safety officers from age 55 to age 50.

Because the Senate’s method of addressing the early distribution penalty is better than the House’s, NCPERS believes the Senate bill will better serve public employees. In any event, the bills now head to conference in an attempt to harmonize differences between the two versions, including the public sector provisions. Let’s keep our fingers crossed.


The Florida Attorney General was recently asked the following questions:

1. May persons under the age of 18 be appointed to serve on advisory boards of a city?

2. If the answer to question one is yes, may minors be appointed to serve on city boards that perform quasi-judicial functions, such as the planning and zoning advisory board, the zoning board of appeals and the code enforcement board?

In responding, the Attorney General noted that at common law it was the rule that any person who had not attained the age of majority as prescribed by law cannot hold an office if the duties of that office require the exercise of judgment and discretion. Therefore, a city may appoint persons under 18 years of age to serve on a Youth Opportunities Advisory Board, which does nothing more than make recommendations to the city commission on issues affecting minors. On the other hand, a board that performs quasi-judicial functions, such as the planning and zoning advisory board, the zoning board of appeals and the code enforcement board, involve exercise of judgment and discretion. As such, the city may not appoint minors to such boards. By extension, we would conclude that minors may not serve as trustees of a Florida municipal pension fund. AGO 2005-65 (December 12, 2005).


Section 119.07(1)(a), Florida Statutes, provides that every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions and under supervision by the custodian of public records. The term “custodian of public records” means the elected or appointed state, county or municipal officer charged with the responsibility of maintaining the office having public records or his designee. The courts, however, have held that in order to have custody of a public record, one must have supervision and control over the document or have legal responsibility for its care, keeping or guardianship. The mere fact that an employee of a public agency temporarily possesses a document does not necessarily mean that the person has statutory custody (see C&C Newsletter for July, 1998, 10th item). Informal AGO, December 14, 2005.


Section 286.011(1), Florida Statutes, Florida’s Government-in-the-Sunshine Law, provides that all meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation or political subdivision, at which official acts are to be taken, are declared to be public meetings open to the public at all times, and no resolution, rule or formal action shall be considered binding except as taken or made at such meeting. The Florida Attorney General has held that where a quorum is necessary for action to be taken, physical presence of members making up the quorum would be required in absence of the statute providing otherwise (see C&C Special Newsletter for December 24, 2002). However, it would appear for “workshop meetings” at which no formal action will be taken, that electronic technology may be used for attendance in any event. Nevertheless, a public entity must be vigilant in adhering to requirements of the Sunshine Law and ensuring that workshop meetings using electronic media technology are not forums for the governing body to undertake formal decisionmaking. Informal AGO (November 29, 2005).

A Sheboygan, Wisconsin, man has pleaded not guilty to assaulting his girlfriend ... with a cactus. Ouch! She wound up with half-inch cactus thorns stuck in her neck, face and arms, which medical personnel removed with tweezers. She also suffered a very large bite mark on her left forearm, a ruptured eardrum, deep cut in her upper lip that required several stitches and bruises on her face and jaw. The sticking point? -- the man is facing up to ten years, if convicted. What a pri...nce!

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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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