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Miami

Cypen & Cypen
NEWSLETTER
for
DECEMBER 20, 2007

Stephen H. Cypen, Esq., Editor

1. IN SETTLEMENT AGREEMENT WITH CITY, WHERE POLICE OFFICER AGREED TO “RETIRE,” HE IS NOT ENTITLED TO DROP:

When Ikalina filed suit against the City of Pembroke Pines for breach of an agreement reached in an arbitration proceeding between them, the trial court referred the matter back to the arbitrator. The arbitrator determined the City had not breached the agreement. Based upon the arbitrator’s determinations, the court dismissed Ikalina’s suit. Ikalina appealed, claiming that the matter was not properly referred to the arbitrator, and the arbitrator exceeded his authority in determining the issue before him. The district court of appeal disagreed, and affirmed. After Ikalina, a policeman, was suspended by the City, he sought arbitration through the union’s grievance procedures. The parties eventually agreed to a settlement, which provided that he would retire on a date certain. The day before he had agreed to retire, Ikalina appeared before the pension board to apply for and request participation in the DROP, which is available to active members who have attained “normal retirement status.” It is not clear from the record whether the pension board determined that Ikalina qualified for DROP. Nevertheless, because Ikalina retired pursuant to terms of the settlement agreement the next day, the City claimed he was no longer in its employ and his ability to participate in DROP terminated. When the arbitrator reconsidered the matter, he determined that the City had complied with the agreement, specifically finding:

The parties complied with paragraph 2 of the Settlement Agreement requiring Ikalina to retire under the Normal Retirement provisions of the Pension Fund effective April 16, 2004, and thus end his employment as a City police officer effective April 17, 2004.

As intended by the parties and clearly stated in paragraph 2 of the Settlement Agreement, Ikalina retired and, thus, left the employ of the City. Moreover, under the Pension Plan’s specific language pertaining to the DROP program, DROP terminates or ends when the police officer’s employment ends. Thus, by Ikalina’s signing the Settlement Agreement, his last day of employment as a City police officer was April 16, 2004. It follows, accordingly, that after such date he was no longer eligible for DROP.

The trial court did not err in referring back to the arbitrator the matter of interpretation of the settlement agreement and whether the parties had properly carried out its terms. The settlement agreement specifically provided for retention of jurisdiction by the arbitrator to carry out the terms of the settlement agreement. (This appellate court decision confirms the advice we gave at the time to our client, the pension board.) Ikalina v. The City of Pembroke Pines, 33 Fla. L. Weekly D18 (Fla. 4th DCA, December 19, 2007).

2. WHETHER PARTY HAS WAIVED ARBITRATION IS ISSUE FOR COURT, NOT ARBITRATOR:

Cowen was dismissed as a police officer with the Jacksonville Sheriff’s Office, and sought the right to arbitrate his dismissal. Ruling upon Cowen’s petition to the circuit court seeking an order compelling JSO to enter into arbitration, the trial judge determined to reserve the central issue of waiver to the arbitration panel, and directed that the parties proceed to arbitration. The trial court should have ruled on JSO’s contention that Cowen had waived his right to arbitrate: Florida courts have generally echoed the proposition that the court, rather than the arbitrator, determines whether or not a party has waived arbitration. Nevertheless, the order on review was affirmed because, as a matter of law, no waiver occurred. Accordingly, the parties were ordered to arbitrate as provided by the trial court in the decretal portion of its order (even though the trial court ordered arbitration for the wrong reason). Note, the opinion cites Section 447.401, Florida Statutes, which provides that a career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure or a grievance procedure, but such employee is precluded from availing himself of more than one of these procedures. City of Jacksonville, Jacksonville Sheriff’s Office v. Cowen, 32 Fla. L. Weekly D2969 (Fla. 1st DCA, December 17, 2007).

3. PRESIDENT SIGNS MEASURE RAISING RETIREMENT AGE FOR PILOTS:

Ending an airline industry controversy that has smoldered for a half-century, President Bush signed a bill that raises the retirement age for commercial pilots to 65 from 60, a standard observed by the rest of the world. According to the Chicago Tribune, pilots say the new law reflects the reality that today’s 60-year-olds are physically fit enough to continue flying and their experience should not be taken out of the cockpit. The new law, however, does not allow pilots who have already turned 60 to reclaim their jobs or seniority, the all-important pecking order at airlines that establishes work assignments and compensation. Pilots who have already retired would be allowed to resume their careers, provided they go back as lowly new hires, assigned as co-pilots on a carrier’s smallest aircraft.

4. SUIT CLAIMING DISABILITY AGAINST FLORIDA PENSION BOARD MUST BE BROUGHT IN FLORIDA:

Giordano was a police officer with the Palm Bay Police Department, and was allegedly injured in the line of duty. He claimed the disability was permanent. The City granted him short-term disability/medical leave, but denied his claim for workers’ compensation based on a finding that his injury was not work-related. Giordano subsequently moved to Illinois. Giordano’s short-term leave expired, he was medically separated from his position with the department and the City approved him for long-term disability. The City informed him to contact the pension board regarding non-job related disability retirement benefits. However, the pension board determined that Giordano was not eligible to apply for non-job related disability. The pension board gave Giordano three options for how his pension contributions could be returned to him. Giordano elected to have his contributions rolled over into an IRA account in Illinois, which the pension board did. The City later reversed its previous denial of workers’ compensation, but the pension board never advised Giordano of his alleged eligibility for work-related disability. Instead, when Giordano inquired of the pension board regarding this issue, he was told that his election to roll over his pension contributions was a waiver of any claim for benefits. In Illinois federal court, Giordano brought nine separate claims against the City, the pension board and the police department (a non legal entity), including breach of fiduciary duty, fraud, negligent misrepresentation, estoppel and violations of Florida law. All defendants moved to dismiss, arguing that they did not have sufficient contacts with Illinois to have personal jurisdiction over them or because Illinois is not the proper venue. The court concluded the complaint must be dismissed because, even assuming arguendo that personal jurisdiction exists, Illinois is not the proper venue. Venue is only proper in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is subject of the action is situated. Giordano held an employment relationship with defendants, which are Florida governmental entities. The pension plan at issue is in Florida, and Giordano’s alleged entitlement to benefits arose entirely in Florida. The injury giving rise to Giordano’s disability incurred in Florida, and defendants made all relevant determinations regarding Giordano’s benefit entitlement status in Florida. Additionally, many of plaintiff’s allegations involve inaction by defendants, which necessarily can only take place where defendants are located. A Florida court would be better suited to rule on the case than one in Illinois. Thus, defendants’ motion to dismiss was granted. We were pleased to assist our client Palm Bay Police and Firefighters Retirement System. Giordano v. City of Palm Bay, Case No. 07 C 3361 (N.D. Ill., December 12, 2007).

5. COURT PROPERLY IMPOSED CONSTRUCTIVE TRUST ON HUSBAND’S PENSION BENEFITS:

The former husband appealed a non-final order imposing a constructive trust on a portion of monthly proceeds from his City of Miami Elected Officer’s Retirement Trust, for benefit of the former wife. The former husband contended that the doctrine of “law of the case” precluded the trial court from imposing a constructive trust because the original appellate ruling (see C&C Newsletter for January 6, 2005, Item 4) establishes that the former wife does not have a property interest in the pension. The former wife asserted that the first trial court ruling determined that the pension was a marital asset, thereby entitling her to half. The law of the case mandates that questions of law actually decided on appeal must govern the case in the same court and the trial court through all subsequent stages of proceedings. Additionally, law of the case may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by an appellate court’s decision. The first court simply determined that the former husband’s pension was a marital asset, subject to equitable distribution; the prior appellate decision did not determine the legal or equitable remedies available to the former wife to guarantee monthly payments of her former husband’s pension. Because the court did not previously address remedies available to the parties, the doctrine of law of the case did not preclude the trial court from imposing a constructive trust -- a device used to restore property to its rightful owner and to prevent unjust enrichment. Thus, the trial court did not err in imposing a constructive trust on a portion of monthly proceeds from the former husband’s pension. Carollo v. Carollo, 32 Fla. L. Weekly D2936 (Fla. 3d DCA, December 12, 2007).

6. NEGLIGENCE ACTION NOT BARRED BY RESOLUTION OF PRIOR ADMINISTRATIVE ACTION:

In 2003 the Division of Administrative Hearings conducted a disputed-fact hearing to determine whether Felder was entitled to transfer from the State University Optional Retirement Program to the Florida Retirement System Pension Plan on the basis of his allegation that, in 1984, he had been enrolled in ORP and removed from FRS without his consent. The administrative law judge found that Felder had made a valid, irrevocable choice to participate in ORP in 1984. Accordingly, the Division of Retirement entered a final order denying Felder’s request to transfer service from ORP to FRS. Although Felder appealed DOR’s final order, the district court of appeal affirmed. After losing his direct appeal of the administrative order, Felder filed a multi-count complaint in circuit court. In one count, Felder purported to state a claim for negligence in connection with DOR’s responsibility to monitor his retirement account. This claim centered on Felder’s allegations that his employer, Florida A&M University, had wrongfully denied him retirement benefits during academic years 1976-77, 1977-78 and 1979-80, and that he was unable to detect this wrongful denial because DOR had breached a duty to send him monthly statements regarding his retirement account. The Division of Retirement moved to dismiss on grounds of res judicata, collateral estoppel and administrative finality. Each doctrine, in one form or another, prevents a party from relitigating a decision that has been rendered by an entity having competent jurisdiction. Here, there is nothing in Felder’s complaint or DOR’s argument that suggests that DOR’s prior determination has any relationship whatsoever to Felder’s negligence claim, as it addresses acts and omissions that occurred prior to Felder’s choice to enroll in ORP. From Felder’s allegations, it is unclear how the ruling that he was properly enrolled in ORP from 1984 to the present would affect Felder’s ability to recover for negligence resulting in loss of benefits for years prior to 1984. Therefore, the district court of appeal reversed dismissal of that one count and remanded for further proceedings consistent with its ruling. Felder v. State of Florida, Department of Management Services, Division of Retirement, 32 Fla. Weekly D2801 (Fla. 1st DCA, November 26, 2007).

7. POTENTIAL SMALL PERSONAL VICTORIES:

From Personal Best, we learn a few potential small personal victories to try for in managing time and life:

  • Write down your goals, post them so they can be seen, review them daily.
  • Each night, plan for the next day. Each noon, check your progress and adapt.
  • Get up half an hour earlier than usual for exercise and meditation.
  • Gradually begin to replace watching television with reading good books.
  • Make nonessential phone calls shorter.
  • Walk 50 percent faster.
  • Build 5-minute interludes into the day.
  • Every hour, ask yourself if the activity you are doing is the most important for achieving your key goals.

Pithy advice, for sure.

8. DAFFY-NITIONS:

Classic: A book which people praise, but do not read.

9. QUOTE OF THE WEEK:

“Reality is merely an illusion, albeit a very persistent one.” Albert Einstein

We wish you and yours a very Merry Christmas!!!!

Copyright, 1996-2007, all rights reserved.

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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