Cypen & Cypen   Miami
Home Attorney Profiles Clients Resource Links Newsletters navigation
    
825 Arthur Godfrey Road
Miami Beach, Florida 33140

Telephone 305.532.3200
Telecopier 305.535.0050
info@cypen.com

Click here for a
free subscription
to our newsletter

Cypen building

Cypen & Cypen
NEWSLETTER
for
NOVEMBER 21, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. SEC SENDS MESSAGE TO MIAMI:
The lead article in a recent State & Local Law News deals with the City of Miami and its woes concerning bonds issued in 1995 (see C&C Newsletter for August, 2001, Item 2). On March 21, 2003, the Securities and Exchange Commission issued a cease-and-desist order against the City of Miami, in which the city was ordered to cease and desist committing or causing any violation or future violation of the antifraud provisions of Federal Securities Laws. In difficult economic times for local governments, oversight by elected officials and staff is especially important. Some of the most significant enforcement cases prosecuted by the SEC against local governments that issue bonds are originated in decisions made during economic downturns or other periods when the affected local governments experience fiscal difficulties. As states and local governments again wrestle with such difficulties, they may well be tempted by a short-term solution that will ultimately cost them and their governmental unit much more in the long haul. The following statement from a former city manager, quoted by the SEC in its opinion, ought to send shivers down the spine of any investor:

Let me ask you this, does anybody read this [Official Statement]? I mean, only experts read this... . [M]ost people don’t read this, nobody reads this. They go by what the raters, that is Moody’s, Standard & Poor’s, saying that these bonds are safe to buy. By rating them AAA, they’re a very good buy. Therefore, they wouldn’t go reading through this. Nobody does.

Read the entire SEC opinion and order imposing remedial sanctions at http://www.sec.gov/litigation/opinion/33-8213.htm.

2. ADVERSE EMPLOYMENT DECISION DOES NOT SUPPORT CLAIM OF SUBSTANTIVE DUE PROCESS VIOLATION UNDER FEDERAL CIVIL RIGHTS LAW, UNLESS FUNDAMENTAL RIGHT IMPLICATED:
The City of Lauderhill, Florida, reorganized its police department, eliminating the position of lead police officer. Three former lead police officers sued the city over their failure to achieve the equivalent rank of sergeant in the reorganized department. All three recovered damages in the trial court for substantive due process violation under 42 U.S.C. §1983. On appeal, however, the judgment was reversed, with directions to enter judgment in favor of the city. Following decisions of three separate federal appellate courts, the Fourth District Court of Appeal held that, if it does not implicate a fundamental right, an adverse employment decision rendered through an executive act will not support a public employee’s claim of a substantive due process violation under 42 U.S.C. §1983. Because an employee’s property interest in an express or implied employment contract is not fundamental, it falls outside ambit of substantive due process. The City of Lauderhill v. Rhames, 28 Fla. L. Weekly D2412 (Fla. 4th DCA, October 22, 2003).

3. SOCIAL SECURITY MAY DETERMINE CLAIMANT NOT DISABLED BECAUSE OF INABILITY TO DO PREVIOUS WORK, WITHOUT DETERMINING IF THAT WORK EXISTS:
A person is disabled, and thereby eligible for Social Security Disability Insurance benefits and Supplement Security Income, only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy. After her job as an elevator operator was eliminated, Thomas applied for disability insurance benefits and SSI. An administrative law judge found that her impairment did not prevent her from performing her past relevant work as an elevator operator, and rejected her argument that she is unable to do that work because it no long exists in significant numbers in the national economy. The Federal District Court affirmed the ALJ, concluding that whether Thomas’s old job exists is irrelevant under Social Security Administration’s regulations. Sitting en banc, the Third Circuit Court of Appeals reversed, holding that the law unambiguously provides that the ability to perform prior work disqualifies from benefits only if it is substantial gainful work which exists in the national economy. In a (rare) unanimous decision, the United States Supreme Court held that the Social Security Administration’s determination that it can find a claimant not disabled where she remains physically and mentally able to do her previous work, without investigating whether that work exists in significant numbers in the national economy, is a reasonable interpretation and should be upheld. Barnhart v. Thomas, 17 Fla. L. Weekly Fed. S3 (U.S., November 12, 2003).

4. ATLANTA PENSION BOARDS GEAR UP TO SUE CITY:
According to a report in the Atlanta Journal-Constitution, Atlanta police, firefighter and general employee pension boards will sue the city to wrest control of their retirement funds from the city. The funds are controlled by three separate boards, made up of elected employee representatives, the city’s chief financial officer and mayoral appointees. However, the city administers all three funds. The city’s chief financial officer, who sits on the boards, admits that police and fire representatives have legitimate frustrations in that city staff doesn’t always answer questions about administration of the funds. However, he believes those concerns have morphed into paranoia and baseless accusations of rampant wrongdoing. An attorney for the three funds has given the city the legally-required thirty-day notice that the boards intend to sue. The police and firefighter boards voted to hire an outside firm to manage their pension funds, but the Atlanta City Council passed an ordinance retroactively prohibiting such action without Council approval! Stay tuned for the next round.

5. TO SAVE PENSION, DAUGHTER DRAGS DEAD DAD:
The daughter of a woman who allegedly killed her husband has also been charged with a crime. The daughter, who lived with her parents, was charged with helping her mother move her father’s body from the scene of a crime -- a felony punishable by up to three years in prison. While the daughter said she was not aware that her mother had killed her father, she did not report the death, and chose instead to help hide the body ... after her mother said she could not survive without his pension checks. The mother was charged with killing her husband of forty three years, by allegedly injecting his body with insulin until he died. Mother and daughter tried to move the body onto a pickup truck, but could do so only by attaching extension cords to his feet and using a car to pull the body onto the bed of the truck. The mother then drove the truck to a wooded area and dumped the body, where it was discovered the next day. The mother told police that she decided that she would have to kill her husband because he was about to discover she had withdrawn $4,000 from savings to cover gambling losses. The story comes to us from NWITimes.com -- “your information source for Northwest Indiana.”

6. PERHAPS THIS POLICE DOG NEEDS A LITTLE REFRESHER COURSE:
When a police dog was sent into a candy factory to track down two intruders his sense of taste got the better of his sense of duty. The 9½ year old German Shepherd nearly ate himself sick. Police were called to a candy factory when seven teenagers were found helping themselves to candy after they had broken into the facility. Although five surrendered immediately, two ran away so police sent the dog to follow their trail. He immediately found a trail of candy the kids had left behind, plus more candy in the building. Unfortunately, the dog stopped greedily to help himself. He was so full of candy that he had to be transferred immediately to a more urgent assignment -- on the lawn outside the building. The dog is fine and the two miscreants remain at large. Because the dog is ready for retirement, he won’t face any disciplinary action, according to the AP report.


Copyright, 1996-2004, 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.


Site Directory:
Home // Attorney Profiles // Clients // Resource Links // Newsletters