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Cypen & Cypen
NEWSLETTER
for
NOVEMBER 7, 2003

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

1. JUNK BOND DEFAULTS RISE:
A report from plansponsor.com indicates that there were $2.7 Billion in domestic high-yield bond (read: junk) defaults in September, bringing the year-to-date default total to $30.4 Billion and the overall default rate to 4.5%. Although defaults are down substantially from last year (when they reached 14.3% for the first nine months), defaults have basically moved sideways this year. Defaults for the third quarter of 2003 amounted to $12.5 Billion, a rate of 1.8%.

2. OREGON PUTS BOND SALE ON HOLD:
According to a New York Times piece, the State of Oregon has postponed a $2 Billion taxable bond sale after a resident filed a complaint challenging whether the state can legally sell debt to finance pension obligations. As of this writing, the sale had been postponed indefinitely to give the state’s lawyers time to review all legal implications. There is one strange aspect to this story: although the plaintiff delivered a form of complaint to the State Treasurer’s Office, there was no confirmation from the court that a complaint had in fact been filed. Nevertheless, the Treasurer thought it prudent to review the matter before going to market. As usual, these pension obligation bonds are designed to be taxable.

3. CERTAIN OFFICERS OF JACKSONVILLE, FLORIDA, ARE ELIGIBLE TO PARTICIPATE IN STATE RETIREMENT SYSTEM:
The Florida Attorney General has ruled that Section 121.052(2)(d), Florida Statutes, part of the Florida Retirement System, authorizes the Mayor, Property Appraiser, Tax Collector, Supervisor of Elections, Sheriff and Clerk of the Court of Jacksonville, Florida, to participate in the Florida Retirement System’s Elected Officers’ Class. The Charter for the Consolidated Government of the City of Jacksonville allows such officers to elect participation in Jacksonville’s City Retirement and Pension System or the State Retirement System. The Sheriff and Clerk of Court, however, have been authorized by said Section to elect to continue to participate in the City’s plan or to elect coverage under FRS’s Elected Officers’ Class. AGO 2003-46 (November 3, 2003). .

4. FLORIDA SUNSHINE LAW DOES NOT PROHIBIT PUBLIC BODY FROM ADDING TOPICS TO AGENDA DURING MEETING AND ACTING UPON THEM:
Although Florida courts have recognized that notice of public meetings is a mandatory requirement of the Government in the Sunshine Law, preparation of an agenda that reflects every issue that may come before a local governmental entity at a noticed meeting is not. Thus, the Florida Attorney General held that a city is not prohibited by the Government in the Sunshine Law from following its procedural policy allowing the addition of topics to the agenda at a regularly-noticed meeting and taking formal action on any matter so added. However, the Attorney General strongly recommends that a governmental entity postpone formal action on “controversial” matters coming before it at a meeting where the public has not been given notice that such an issue will be discussed. The purpose of the notice requirement of the Government in the Sunshine Law is “to apprise the public of the pendency of matters that might affect their rights, afford them the opportunity to appear and present their views and afford them a reasonable time to make an appearance if they wished.” In the spirit of the Government in the Sunshine Law, a municipal body should be sensitive to the community’s concerns that it be allowed advance notice and, therefore, meaningful participation on controversial issues coming before the body. We continue to give this latter advice to our clients, and applaud the Attorney General for “hanging in there.” AGO 2003-53 (November 3, 2003).

5. ORLANDO RECEIVES ADVICE FROM ATTORNEY GENERAL ON INVESTMENT AUTHORITY:
The Florida Attorney General has rendered the following opinion to the Orlando Firefighters Pension Fund: (1) amendment of the Special Act relating to the Orlando Firefighters Pension Fund to broaden the investment authority of the Board of Trustees would need to be addressed by special act of the legislature and not by ordinance enacted by the city’s governing body; (2) a recent amendment to the special act that authorized the city’s governing body to amend the pension plan to the limited extent necessary to comply with minimum standards and minimum benefits required by Chapter 175, Florida Statutes, does not obviate the necessity for a special act, as set forth in the foregoing answer; and (3) to the extent that a special act or general law of local application may seek to expand the investment authority of the board of trustees of a pension fund or system in such a manner that it would conflict with the provisions of Part VII, Chapter 112, Florida Statutes, passage by a three-fifths majority of the legislature would be required. AGO 2003-54 (November 3, 2003). We are still studying this opinion, because we are not sure we completely understand it. If we come up with anything further, we will put it in a subsequent Newsletter.

6. THEY SHOULD ALL BE THIS EASY, RIGHT, GUYS?:
Santa Cruz, California, police are still scratching their heads at what is perhaps the easiest bank robbery arrest in history. Susie Marie Leigh landed in County Jail after allegedly robbing a bank and then waiting in the parking lot for police to arrive. Leigh was the first customer of the day at the bank, and allegedly gave a note to a teller demanding money -- walking out with $857.00. Instead of running, however, Leigh told another teller to call police. She then walked outside, got into her pickup truck and waited for officers to arrive. She put up no struggle, and, of course, all the money was recovered. In what is likely the understatement of the year, a police detective said “She certainly didn’t do what typical bank robbers do to get away. It doesn’t often happen that we catch them this easily. It’s one of those for the memoirs.” If convicted, Leigh faces a maximum sentence of five years in prison for unarmed bank robbery, according to the report from Associated Press.


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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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