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Cypen & Cypen
NEWSLETTER
for
APRIL 1, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001
FLORIDA ATTORNEY GENERAL ISSUES TWO IMPORTANT LEGAL OPINIONS:

1. AGO 2003-10 (MARCH 26, 2003): This legal opinion addresses the following question: “Under what conditions may the city manager continue employment with the city after he has participated in the Deferred Retirement Option Program?” The question involves the City of Live Oak, which had revoked its election to participate in the Florida Retirement System. However, the present city manager had entered FRS’s DROP and was due to terminate on June 30, 2003, but wished to continue his employment with the city beyond that date. Under the unique statutory provisions applicable to FRS, a DROP participant may retire, receive his DROP payment and still be eligible for rehiring if he has a 31-day break in service and then reapplies for employment. To enter the DROP, an eligible employee must make a written election, selecting participation and termination dates, with the latter contained in a binding letter of resignation. (Nevertheless, the statute actually contemplates abrogation of the agreement to resign, because if a DROP participant fails to terminate then he is deemed not to be retired and the DROP election is deemed to be null and void. Such employee’s membership in FRS is reinstated retroactively to date of commencement of the DROP and each employer with whom the employee continues employment is required to pay the system trust fund the difference between the DROP contributions paid under law and the contributions required under FRS for the period of participation in the DROP, plus 6½% interest compounded annually. So what’s with the “binding letter of resignation?”) In any event, assuming a DROP participant terminates employment, he may not return to work within the next calendar month following his or her retirement, and even upon return to work under the appropriate lapse of time, may not receive both a salary and retirement benefits for the first twelve months. The problem facing the Live Oak city manager, however, is that “his continued employment would be assured through an informal agreement with the City Council.” The Division of Retirement had already advised him that this arrangement may be viewed as circumventing a true termination, thus preventing him from receipt of the balance in his DROP account. Because that question is a mixed one of law and fact, the Attorney General, as usual, declined to answer. Nevertheless, the Attorney General stated he would defer to the opinion of the Division of Retirement. MUNICIPAL TRUSTEES TAKE HEED: THE FLORIDA RETIREMENT SYSTEM EXPLICITLY CONTEMPLATES NON-TERMINATION OF EMPLOYMENT AT THE END OF THE DROP PERIOD -- COMPLETELY UNLIKE ANY LOCAL DROP WE ARE AWARE OF, ALL OF WHICH MANDATE TERMINATION OF EMPLOYMENT AFTER MAXIMUM PARTICIPATION IN THE DROP. And as for the issue of re-employment, the answer depends upon the provisions of your particular plan and DROP.

2. AGO 2003-09 (MARCH 26, 2003): This legal opinion addresses the following question: “May a participant disclose information obtained during a meeting regarding labor negotiations that is closed pursuant to Section 447.605, Florida Statutes?” That statute provides “all discussions between the chief executive officer of the public employer, or his or her representative, and the legislative body or the public employer relative to collective bargaining shall be closed and exempt from the provisions of s. 286.011 [Florida Sunshine Law].” And although collective bargaining negotiations between the chief executive officer and the bargaining agent must comply with the Sunshine Law, all work product developed by the public employer in preparation for such negotiations and during negotiations are made confidential and exempt from the provisions of Section 119.07(1), Florida Statutes [Florida Public Records Law]. The Attorney General found that Section 447.605(1), Florida Statutes, does not directly address the dissemination of information that may be obtained at a closed meeting, but that the nature of such proceedings shows a clear intent that matters discussed during such meetings are not to be open to public disclosure. Yet, there are other Florida laws prohibiting disclosure of such information or subjecting the person disclosing the information to penalties, under certain circumstances. “Participants in meetings that are closed pursuant to section 447.605, Florida Statutes, should be sensitive to the stated denial of public access when matters discussed at such meetings subsequently arise.”

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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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