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Cypen & Cypen
NEWSLETTER
for
APRIL 4, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. FLORIDA MUNICIPALITY HAS OPTION TO REIMBURSE LAW ENFORCEMENT OFFICER WHEN CRIMINAL ACTION AGAINST HIM “NOLLE PROSSED”:
Section 111.065(2), Florida Statutes, provides that the employing agency of any law enforcement officer shall have the option to pay the legal costs and reasonable attorney’s fees for any law enforcement officer in any civil or criminal action commenced against such law enforcement officer when the action arose out of the performance of his official duties and (a) plaintiff requests dismissal or (b) the law enforcement officer is found not liable or not guilty. A “nolle prosequi” is dismissal of a pending information or indictment. But can the prosecutor in a criminal action qualify as a “plaintiff” for purposes of the statute in question? Yes, according to the Florida Attorney General, who found that Section 111.065, Florida Statutes, permits, but does not require, a city to reimburse a law enforcement officer for legal costs and reasonable attorney’s fees incurred in connection with the defense of criminal charges commenced against him where the action arose out of performance of his official duties and the prosecutor has “nolle prossed” such action. If the common law ever required reimbursement, then it has been changed by statute. AGO 2003-13 (April 1, 2003).

2. COUNTY PUBLIC HEALTH TRUST NOT “OFFICE” FOR PURPOSES OF FLORIDA CONSTITUTIONAL DUAL OFFICE-HOLDING PROHIBITION:
Our readers know that Section 5(a), Article II, Florida Constitution, provides that “no person shall hold at the same time more than one office under the Government of the State...except that...any officer may be a member of a...statutory body having only advisory powers.” Although the term “office” has not been defined for purposes of the Constitution, it implies a delegation of a portion of the sovereign power to, and the possession of it by, the person filling the office. The term embraces the idea of tenure, duration and duties in exercising some portion of the sovereign power, conferred or defined by State law and not by contract. The Public Health Trust of Miami-Dade County was created pursuant to Part II, Chapter 154, Florida Statutes, to respond to concerns expressed by the County Commission regarding its inability effectively to manage the operations of hospitals and other health facilities. The statute that authorizes creation and establishment of Public Health Trusts reveals that such entities have not been statutorily vested with independent powers, but rather possess only such powers as the governing body of the County may choose to bestow. Thus the board of trustees of a county public health trust does not possess independent attributes of sovereignty that are characteristic of an office. The Florida Attorney General came to the foregoing conclusion in determining that a public officer may serve simultaneously as a member of the board of the Public Health Trust of Miami-Dade County without violating Article II, Section 5(a), Florida Constitution. AGO 2003-12 (March 28, 2003).

3. MALE-TO-FEMALE TRANSSEXUAL CANNOT VALIDLY MARRY ANOTHER MAN:
Although this item is not particularly timely, we did not want to leave the impression that a decision of the Kansas Court of Appeals has withstood further review (see C&C Newsletter for August, 2001, Item 11). Disagreeing with the intermediate appellate court, the Supreme Court of Kansas has held that its statute recognizes only a traditional marriage, and that the purported marriage between a post-operative male-to-female transsexual and a man is void as against public policy. In the matter of the Estate of Marshall G. Gardiner, Case No. 85,030 (Kan. March 15, 2002). We report on this case because it has implications on just who is eligible for post-death benefits as a surviving spouse.

4. PENSION TRUSTEES LOOK TO TEMPORARY EMPLOYMENT AGENCY FOR REIMBURSEMENT:
A report from PlanSponsor.com indicates that Indiana State Pension officials are demanding a temporary employment agency to make good on money stolen by an employee supplied by the agency. It turns out that the temporary employee had a police record, including convictions for criminal conversion and possession of marijuana. In addition, she had been arrested on charges of check deception and drug dealing. The fund claims that the agency knew or should have known that the employee’s habit of committing criminal acts would directly cause the fund to suffer damages. The employee, who had worked at the agency for eight months, has been charged with stealing more than $23,000.00 and stealing the identities of at least 70 public employees. Apparently, the employment agency checks employment history but only makes a criminal investigation if requested by the client. Hey, maybe it’s time to change your policy.

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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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