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Cypen & Cypen
NEWSLETTER
for
DECEMBER 22, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. NEW YORK IN-LINE OF DUTY BENEFITS NOT CONDITIONED ON “HEIGHTENED RISK” STANDARD:
In three consolidated cases, the New York Court of Appeals was faced with determining whether eligibility for benefits under a certain general municipal law is contingent upon the employee’s demonstrating an injury sustained in the performance of special work related to the heightened risks and duties inherent in law enforcement. Originally enacted in 1961, said law provides for payment of the full amount of regular salary or wages to a police officer who is injured “in the performance of his duties” or is taken ill “as a result of the performance of his duties.” The payments continue until the disability has ceased or the disabled employee is granted a disability retirement. The payments stop if the employee either performs, or refuses to perform, light-duty work. In reversing decisions of the appellate division in all three cases, the Court of Appeals held that the law affords eligibility to those covered employees who are injured in the performance of their duties, not to those who are “injured in the performance of duties entailing the heightened risk of law enforcement,” or words to similar effect. If the Legislature had intended to restrict the eligibility to employees injured when performing specialized tasks, it easily could have and surely would have written a law to say so. The word “duties” in the law encompasses the full range of a covered employee’s job duties. Incidentally, the law was enacted to create parity between police officers and firefighters, who had been eligible for the same benefits since 1938. Municipalities had always awarded benefits to firefighters without reference to whether a specific injury-causing activity was one entailing the “heightened risk” of firefighting. Theroux v. Reilly, Case Nos. 139, 140 and 141 (New York, December 2, 2003).

2. “COST” OF CHRISTMAS CONTINUES TO RISE:
Last time we reported on the cost of the gifts in “The Twelve Days of Christmas” it was for the year 1999 (see C&C Newsletter for January, 2000, Item 7). Now, according to PNC Advisors, the total price tag for the 364 items is $65,264, an increase from about $60,000 four years ago. (Remember that on each successive day the prior gift is repeated.) The increased cost is attributable to the swans, the pipers and the drummers. Swans now fetch $500 a piece -- up from $300 last year. Meanwhile, eleven pipers will set you back almost $2,000 and the cost for twelve drummers is even a bit higher. Not all the news is bad, as the cost of five gold rings dropped by over 5% and a pear tree went down almost a third from 2002. Finally, not everything is cheaper on-line: because of the expense due to shipping costs, to buy everything in the song on the web will cost over $100,000! We read this item in plansponsor.com.

3. CITY COUNCIL MEMBER MAY ALSO SERVE ON SELECTIVE SERVICE BOARD:
The Florida Attorney General was recently asked whether a member of a City Council may simultaneously serve as a member of the local Board of the United States Selective Service Systems without violating Article II, Section 5(a), Florida Constitution. The subject section of the Constitution provides that “no person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state... .” The Constitution refers to a state office of honor or of emolument; the provision, however, includes only an office of emolument when referring to an office of the United States. Because members of local Selective Service System Boards do not receive a salary, membership on such board would not appear to constitute an office of emolument. Therefore, a member of city council may simultaneously serve as a member of the local Board of the United States Selective Service System, for which he receives no compensation, without violating Article II, Section 5(a), Florida Constitution. AGO 2003-59 (December 15, 2003).

4. HOMETOWN HEROES SURVIVORS BENEFITS ACT OF 2003 BECOMES LAW:
We have previously reported on some provisions of the Public Safety Officers’ Benefits Act (see C&C Newsletter for November, 1996, Page 1 and C&C Newsletter for September, 1998, Item 3). Now, President Bush has signed into law the Hometown Heroes Survivors Benefits Act of 2003. Effective December 15, 2003, the law extends federal benefits to public safety officers (including firefighters, police officers and other first responders) who die of heart attack or stroke in line of duty. Basically, PSOB benefits are extended to public safety officers who die as a result of heart attack or stroke resulting from strenuous physical activity that occurred (1) while responding to an emergency or participating in a training exercise, (2) while still on duty after the response or participation, or (3) within 24 hours of the response or participation. Heart attacks and strokes represent a significant risk among public safety officers, accounting for nearly half of all firefighter deaths each year. In 2002, 37 on-duty firefighters died of heart attacks. PSOB, administered by the Department of Justice, provides a one-time financial benefit -- currently set at about $267,000 -- to families of public safety officers killed or permanently disabled in line of duty. Prior to the new law, burden of proof was placed on the officer or his family to demonstrate a direct relation between the heart attack or stroke and the duty-related actions. The new law shifts that burden to the Justice Department, by adding language presumptively qualifying heart attacks and strokes as line-of-duty deaths, absent competent medical evidence to the contrary. Our readers know that Section 175.231, Florida Statutes (Firefighters), and Section 185.34, Florida Statutes (Police Officers), provide similar presumptions with reference to pension and retirement benefits under those chapters. We thank Officer Dave Farrand, Chairman of our client North Miami 748 Pension Fund, for the heads-up on this important legislation.

5. RECENT AMENDMENTS TO LAW ENFORCEMENT OFFICERS’ BILL OF RIGHTS INVALIDATE PRIOR FLORIDA A.G.O.:
In light of recent amendments to Sections 112.532 and 112.533, Florida Statutes, part of the Law Enforcement Officers’ Bill of Rights, the Florida Attorney General was asked the following questions: (1) Are the provisions of Sections 112.532 or 112.533, Florida Statutes, as amended by Chapter 2003-149, Laws of Florida, violated by a police department policy providing that a law enforcement officer who is the subject of a complaint be interviewed before other witnesses? (2) Do the provisions of Section 112.533(4), Florida Statutes, as amended by Chapter 2003-149, Laws of Florida, relating to the disclosure of information prohibit intradepartmental communications involving individuals participating in the investigation? Answers: (1) Invalidating the conclusions in AGO 2001-17, the amendment does not establish a particular order in which law enforcement officers or witnesses in an internal investigation must testify; rather, an officer and his representative are allowed to review the complaint and all statements regardless of form, immediately prior to beginning of his interview; however, regardless of the order of interviews, a law enforcement officer is granted the right to request and review a complete copy of the investigative report and supporting documents in the investigation; the officer is entitled to an opportunity to address the findings in the report with the employing law enforcement agency, before imposition of disciplinary action consisting of suspension with loss of pay, demotion or dismissal. And, (2) Individuals participating in the investigation may share information regarding the investigation; however, these participants are prohibited from discussing the case with the public or with others within the agency who are not involved in the investigation; the complaint and all information obtained during course of the investigation becomes a public record, at such time as the investigation becomes inactive or upon a determination by the agency head that the investigation is concluded with a finding whether or not to proceed with action or to file charges. AGO 2003-60 (December 15, 2003).

6. PHONY COP STOPS WRONG MOTORIST:
To quote the Associated Press: “Mistake No. 1 - Impersonating a police officer; Mistake No. 2 - Making a traffic stop; Mistake No. 3 - Stopping a state trooper.” Shalom Gelbman, 22, made all three mistakes. With a strobe light on his dashboard and his high beams flashing, Gelbman pulled a car over on the Palisades Interstate Parkway. Inside the car was an off-duty State Trooper, who immediately arrested him. The young zealot was charged with reckless endangerment and criminal impersonation. He was also cited for having unauthorized equipment in his car and for driving without a registration or insurance. Get ready to say “Shalom,” Shalom.


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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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