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Cypen & Cypen

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001

DeSoto was a City of Hialeah Police Sergeant, who was demoted to Police Officer and suspended without pay for six months. He was indicted by a Federal Grand Jury on several charges, including conspiracy to possess and distribute cocaine; to commit robbery; to carry a firearm during a crime of violence; and commission of three robberies. The indictment indicated that some of the offenses occurred during DeSoto’s six-month suspension. DeSoto pled guilty to all counts, admitting the facts underlying the charges. The Pension Fund Board of Trustees commenced proceedings to forfeit DeSoto’s retirement benefits under Section 112.3173(2)(3)6, Florida Statutes. That section defines “specified offense” as the committing of any felony by a public officer or employee, who willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempts to realize or obtain, a profit, gain or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties or position of his or her public office or employment position. And in accordance with Section 112.3173(3), Florida Statutes, any public officer or employee who is convicted of a “specified offense” committed prior to retirement shall forfeit all rights and benefits under any public retirement system of which he or she is a member, except for the return of his or her accumulated contributions as of date of termination. The statute also defines “convicted” as including a plea of guilty. On appeal, DeSoto contended that the Board erred in determining that his benefits were subject to forfeiture because the crimes of which he was convicted occurred while he was on suspension, and thus could not be related to his duties as a police officer. However, the Board relied on DeSoto’s own admissions during his guilty plea. He “only” helped plan the robbery of a 7-11 Store, providing the mace used during the robbery; participated in the robbery of another restaurant, providing handcuffs used to restrain the victim; suggested a target of a third robbery; and agreed to protect a shipment of drugs, providing cover so that the cocaine could be successfully delivered. The appellate court had little difficulty in agreeing with the Board that the evidence was sufficient to meet the statutory requirement of a nexus between the crimes charged against the public officer and his duties or position. The conspiracies involved in planning of robberies and agreement to protect the drug shipment occurred outside the period of DeSoto’s suspension. In addition, DeSoto clearly violated his duty as a police officer to safeguard the public faith in his office. During his suspension, DeSoto remained a public servant. Say goodbye to your pension, Orestes. DeSoto v. Hialeah Police Pension Fund Board of Trustees, 29 Fla. L. Weekly D 1937 (Fla. 3d DCA, August 20, 2003).

The Florida Attorney General was asked whether a member of the City of Tampa Human Rights Board who was physically absent from a board meeting because of a scheduling conflict may participate in a meeting by means of a telephone conference, when a quorum of the members of the board is physically present at the meeting. The question indicated that the board’s rules provide that its meetings are to be held at the City’s Office of Community Relations. The Attorney General felt that such requirement was analogous to statutory requirements that meetings of a county commission or school board be held at an appropriate place in the county. Thus, physical presence of board members at meetings is contemplated. The Attorney General made reference to several of his prior opinions, including AGO 02-82 (see C&C Newsletter for December, 2002), that sanctioned telephonic participation when a quorum of members is physically at the meeting site. However, the Attorney General seems to have added another stumbling block: where a rule or statute contemplates that a meeting will be held in a public place with the members physically present, participation of an absent member in the meeting by telephone conference should be permitted only in “extraordinary circumstances” and when a quorum of the board members is physically present at the meeting. Whether the absence of a member due to a scheduling conflict constitutes such circumstances must be determined in the board’s best judgment. AGO 2003-41 (September 3, 2003) There is still one ray of sunshine: most municipal plans do not specifically provide that meetings must be held in a particular public place with members physically present.

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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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