1.
THREE-MINUTE LIMITATION ON CITIZEN PRESENTATION TO CITY
COUNCIL NOT VIOLATIVE OF FIRST AMENDMENT:
During
the portion of a city council meeting devoted to public
comments, the
mayor informed a citizen that he would be limited to three
minutes. There were no other speakers present. The citizen
used his time to speak in opposition to a lawsuit the city
had filed against him and to speak about the city’s
alleged violation of the Oklahoma Open Records Act and
the Oklahoma Open Meetings Act. The citizen then filed
suit against the city, but suffered an adverse summary
judgment upon the finding that the city had not violated
any constitutional right in limiting his speaking time
at the city council meeting. The citizen argued that the
three-minute limitation on his speech imposed by the mayor
during the public comments portion of the city council
meeting constituted a prior restraint in violation of his
First Amendment rights, and that the District Court erred
when it ruled otherwise. The United States Court of Appeals
affirmed: the three-minute time limitation imposed on the
citizen’s speech was a restriction appropriately
designed to promote orderly and efficient meetings. In
addition, the citizen had ample alternative channels of
communication available to him and utilized them by, among
other things, appearing in a local newspaper and circulating
flyers. Shero v. City of Grove, Oklahoma, Case No. 06-5222
(U.S. 10th Cir. Dec. 17, 2007)
2. POST-TERMINATION HEARINGS BEFORE CITY
MANAGER NOT SUBJECT TO FLORIDA SUNSHINE LAW, BUT SUCH HEARINGS
BEFORE
A PANEL ARE:
Under The City of Stuart’s personnel
rules, an employee terminated for cause is entitled to
a post-termination hearing before the City Manager for
purpose of appealing the termination by employee’s
department head and for purpose of “name-clearing.” The
name-clearing hearing shall be conducted by the City Manager
(who has discretion to combine the name-clearing hearing
with the disciplinary appeal hearing). The City Manager
may appoint a panel of three persons to consider an appeal
and render an advisory decision to him. Nevertheless, the
City Manager’s decision shall be final and binding.
The City Attorney asked the Florida Attorney General whether
the meetings, either with the City Manager or with the
three-member panel, are subject to the Florida Government
in the Sunshine Law. Since the Mayor is not a board or
commission, and is not acting for such board, meetings
between him and the city employees in regard to his duties,
unrelated to those of a board commission, are not “meetings” under
Section 286.011(1), Florida Statutes. However, the three-member
panel is hearing the appeal of a decision to discipline
an employee, whether to clear his name or to overturn such
a disciplinary decision. In conducting the hearing and
in reviewing and weighing the evidence to determine whether
to recommend that an appeal should be sustained, the panel
would appear to be playing an integral part of the decision-making
process. Accordingly, the Florida Attorney General opined
that the three-member panel established under the city’s
personnel policy should conduct its hearings in accordance
with the Florida Government in the Sunshine Law. AGO 2007-54
(December 31, 2007).
3. IRS UNVEILS PROCEDURE FOR REPORTING
TAX LAW VIOLATIONS, CLAIMING REWARDS:
Internal Revenue Service
outlined ways
informants can report violations of tax law and possibly
claim a reward based on amount of additional tax, penalties
and interest owed. Since the Whistleblower Office was created
in December 2006, IRS has received about eighty claims,
half of those submitted in just the last two and one-half
months. To make a claim, an informant must file new Form
211, Application for Award for Original Information, which
asks informants to provide an estimate of the tax owed,
pertinent facts in the case and an explanation of how the
informant obtained the information. IRS’s Whistleblower
Office will make the final determination about whether
an award will be paid and the amount of the award for claims
that it processes. Awards will be paid in proportion to
the value of information furnished voluntarily with respect
to proceeds collected. Under the new procedures, the amount
of reward will be at least 15%, but no more than 30%, of
the collected proceeds in cases in which IRS determines
that information submitted by the informant substantially
contributed to the collection of tax. The award percentage
may be reduced in some circumstances. To be eligible for
an award under the new procedures, the tax, the penalties,
interest, additions to tax and additional amounts in dispute
must exceed two million dollars for any taxable year end,
and if the taxpayer is an individual, the individual’s
gross income must exceed $200,000 for any taxable year
in question. (At those levels, it’s a wonder that
anybody ever collects a dime.) Of course, all awards are
subject to normal tax reporting and withholding requirements!
(IR-2007-201) December 19, 2007.
4. DUE TO “UNUSUAL CIRCUMSTANCES,” FLORIDA
COMMISSION ON ETHICS WAIVES FINE AGAINST PENSION BOARD
TRUSTEE:
The designated due date for 2005 CE Form
1 (Statement of Financial Interest) annual filing was September
1, 2006.
A trustee of a municipal pension board located in Miami-Dade
County filed his form CE 1 in Broward County on September
21, 2006. Because state law accesses an automatic fine
of $25 per day on a person who fails timely to file a required
CE form, the trustee was automatically fined $500. However,
the facts were not so simple. On June 8, 2006, the trustee
had contacted the Miami-Dade County Supervisor of Elections
because he had received a CE Form 1 from Broward County,
where he resided. He thought he had already filed the CE
Form 1 with Miami-Dade County. As it turned out, the trustee
had filed CE Form IF (Final Statement of Financial Interest)
with Miami-Dade County on March 25, 2006. Miami-Dade County
forwarded the form to Broward County. Further, appellant
never received a delinquency notice that Broward County
had sent him. (The foregoing facts were revealed and everything
was resolved after the trustee received a courtesy reminder
in mid-September, 2006.) The Commission on Ethics may waive
a fine in whole or in part for good cause shown, based
on “unusual circumstances” surrounding failure
to file by the designated due date. The Florida Administrative
Code defines “unusual circumstances” as uncommon,
rare or sudden events over which the reporting individual
has no control, and which directly result in failure to
act in accordance with the filing requirement; circumstances
that allow for time in which to take those steps necessary
to assure compliance with filing requirements shall not
be deemed or constituted unusual circumstances. On appeal
by the trustee, the Florida Commission on Ethics found
that the trustee’s lack of notice and confusion over
which form was due - - CE Form 1 or CE Form IF - - and
where it should be filed, constituted “unusual circumstances,” which
contributed to the Trustee’s failure timely to file.
Thus, the Commission waived the accessed fine of $500.
Here’s the twist: the trustee had not left office
and should not have been furnished with Form IF in the
first place. State of Florida Commission on Ethics Financial
Disclosure Appeal No. FD 06-105, Final Order No. COE 07-186
(December 5, 2007).
5. CITY COMMISSIONER’S WRITTEN
MEMORANDUM OF MEETING WITH FORMER CITY OFFICIAL IS A PUBLIC
RECORD:
The so-called “Sarnoff
Memorandum” has spawned an appellate decision interpreting
Chapter 119, Florida Statutes, the Public Records Act.
City of Miami Commissioner Marc Sarnoff received a telephone
call from a former City of Miami official requesting a
meeting to discuss city affairs. Following the meeting,
Commissioner Sarnoff prepared a written memorandum “to
the file,” summarizing details of what the former
city official had told him. The memorandum contains alleged
factual information about possible criminal activity. Under
threat of subpoena, Commissioner Sarnoff turned the memorandum
over to the Miami-Dade State Attorney’s Office as
part of an on-going criminal investigation, retaining a
copy for himself. The Miami Herald submitted a public records
request to Commissioner Sarnoff, seeking a copy of memorandum
pursuant to Chapter 119, Florida Statutes. Unsure of his
legal rights, Commissioner Sarnoff filed a declaratory
judgment action seeking a judicial determination of as
to whether the memorandum is a public record within the
meaning of Chapter 119, Florida Statutes. The Miami Herald
simultaneously filed its own complaint seeking production
of the document. As part of the proceedings in a trial
court, the parties made the following stipulations:
- Commissioner Sarnoff attended the meeting with the
former City of Miami official in his official capacity
as a City
Commissioner.
- The meeting related to official business of the City
of Miami
- The memorandum was the final evidence record, memorialization
and explanation of the knowledge gathered from the
meeting by Commissioner Sarnoff.
- The memorandum was Commissioner Sarnoff’s final
work product with regard to the information and was
not the precursor or preliminary to any other document.
- The memorandum was the only written record of what
was said at the meeting.
After reviewing the memorandum in camera, the trial court
concluded that the subject document was not a public record
for purposes of Chapter 119, Florida Statutes. The trial
court essentially found that although Commissioner Sarnoff
had prepared the memorandum to reflect a conversation that
occurred in his capacity as a public official, the Commissioner
stated that creation of the document was that of a memo
for his personal use, at a later time. On appeal, The Miami
Herald argued that the trial court erred in its determination
that the memorandum was not a public record because the
document represents the final evidence of knowledge gained
by a public official in his official capacity in connection
with public business. The Third District Court of Appeal
agreed. The subject memorandum solely contains alleged
factual information about possible criminal activity. It
is undisputed that Commissioner Sarnoff is an “agency” for
purposes of Chapter 119, Florida Statutes; he attended
a meeting in his capacity as an elected city official;
official city business was discussed at the meeting; and
he drafted the memorandum to formalize and perpetuate his
final knowledge gained at that meeting. The subject document
was not a draft or a note containing mental impressions
that would later form part of a government record. The
judgment was reversed and the cause remanded with directions
to the trial court to order disclosure of the memorandum.
(In a somewhat unusual move, the appellate court stated
its ruling takes effect immediately, notwithstanding the
filing of any motion for rehearing or rehearing en banc.
Miami Herald Media Company v. Sarnoff, 33 Fla. L. Weekly
D24 (Fla. 3DDCA December 19, 2007).
6. RECENT TRENDS IN SHAREHOLDER CLASS
ACTIONS:
The 18-month decline in shareholder class
action filings has definitely
reversed course, with 2007 federal filings projected to
increase by 58% compared to the previous year, according
to a NERA study. The study draws from more than 15 years
of NERA research on case filings and settlements in shareholder
class actions, and includes data through December 15, 2007.
NERA projects there will be 207 federal filings by year
end, following just 131 filings in 2006. Despite widespread
speculation that filings would continue to decline, the
trend has reversed course, and filings are back up to 2005
levels. The shape increase in filings has been driven in
part by litigation related to subprime lending. As of December
15, 2007, 38 subprime shareholder class actions had been
filed in 2007. Subprime lending does not explain the entire
trend, however: standard federal filings excluding subprime
or options backdating cases also increased nearly 40% from
2006 to 2007. The average settlements have also spiked
this year, continuing an overall upward trend over the
past five years. Still, 2007 marked a notable increase,
in that the average settlement paid to resolve a shareholder
class action case in 2007 was $33.2 million dollars, up
nearly 50% from 2006. The median settlement also reached
a new high in 2007, at just under $10 million dollars.
According to its website, NERA Economic Consulting is an
international firm of economists who understand how markets
work. (We did not think anyone understood how markets work.)
7. SELLING CRACK-COCAINE CONSTITUTES SUSTAINED REMUNERATIVE
OF EMPLOYMENT FOR WORKER COMP PURPOSES:
Lynch was injured
in a industrial accident in 1967 and
was subsequently awarded permanent total disability compensation. In 1997 he
was indited on charges relating to possession, sale and distribution of crack-cocaine.
He pleaded guilty to conspiracy to possess cocaine with intent to distribute.
The Bureau of Worker’s Compensation terminated Lynch’s permanent
total disability compensation, finding that his criminal activities for profit
constituted sustained remunerative employment. On ultimate appeal to the Supreme
Court of Ohio, that ruling was affirmed. Exchanging labor for pay on a sustained
basis constitutes sustained remunerative employment sufficient to terminate
permanent total disability compensation. So, what did Lynch argue on appeal?
He argued that the court could not consider the activity he engaged in to be
sustained remunerative employment, because the activity was illegal! Talk about
chutzpah. State ex rel. Lynch v. Industrial Commission of Ohio, Case No. 2007-0423
(Ohio December 19, 2007).
8. IN PSOBA CLAIM, BJA INTERPRETATION
OF “FIREFIGHTER” ENTITLED
TO DEFERENCE:
The Public Safety Officers’ Benefits
Act of 1976 provides a one-time cash payment to survivors
of public safety officers who die in line of duty. For
a survivor to be entitled to payment, the public safety
officer must have suffered a “personal injury” within
meaning of the act, the injury must have been suffered “in
line of duty” and death must have been “direct
and proximate result” of the personal injury. The
act defines “public safety officer” as “an
individual serving a public agency in an official capacity,
with or without compensation, as a law enforcement officer,
as a firefighter, as a Chaplin, or as a member of a rescue
squad or ambulance crew.” The act additionally defines “firefighter” as “including
an individual serving as an officially recognized or designated
member of a legally organized volunteer fire department.” Christopher
Kangas was a 14-year-old “apprentice firefighter” with
the Brookhaven Fire Department. Christopher was riding
his bicycle from home to the fire station in response to
a fire alarm, when he was struck by an automobile. As a
result, Christopher sustained serious injuries and died.
His mother filed a claim with the Department of Justice’s
Bureau of Justice Assistance, seeking death benefits under
PSOBA. BJA determined that Christopher was a trainee but
did not possess authority to act as an official firefighter,
and thus was not a public safety officer under PSOBA. BJA
noted that Christopher was only permitted to participate
in training activities, to provide first aid care, to assist
with clean-up activities, to support canteen activities
and to participate in the support capacity for operations
such as searches/rescues. In addition, Christopher was
not permitted to operate equipment or assist with fire
suppression at fire scenes or enter hazardous atmospheres.
After BJA denied the claim, Christopher’s mother
brought suit in the United States Court of Federal Claims,
which granted judgment in her favor. That Court held BJA’s
denial of benefits was an arbitrary exercise of its authority,
and held that the mother could recover under PSOBA because
Christopher was a firefighter who had died in the line
of duty within meaning of the statue and implementing regulations.
The United States appealed the Court of Federal Claims’ decision,
and the appellate court concluded that the lower court
had erred in failing to defer to BJA’s interpretation
of firefighter. Judgment was reversed and the cause remanded
with instructions for entry of judgment in favor of the
United States. The ordinary, common meaning of the term “firefighter” as
a “person who fights fires” is consistent with
BJA’s interpretation of firefighter. The appellate
court agreed with the government’s argument that
there is no indication in the act itself of any legislative
intent to depart from this ordinary meaning. Amber-Messick
v. United States, 483 F3d 1316 (U.S. Fed. Cir., 2007).
9. FAMILY OF PILOT EMPLOYED BY PRIVATE
CONTRACTOR NOT ENTITLED TO PSOBA BENEFITS:
In another case
involving The
Public Safety Officers’ Benefits Act, the United
States Court of Appeals for the Federal Circuit has upheld
determinations of non-coverage made by the Bureau of Justice
Assistance. Here, decedent was employed as a helicopter
pilot by a private company that had entered into a contract
with the California Department of Forestry and Fire Protection
to provide piloting services for fire suppression missions.
The contract provided that the company’s employees
shall act in an independent capacity and not as officers
or employees or agents of the State of California and that
the company would pay and provide benefits to the pilots
who performed services under the contract. While piloting
a helicopter pursuant to the contract, decedent died as
a result of a mid-air collision with another aircraft.
The BJA determined that decedent, as an employee of a government
contractor, did not satisfy the PSOBA definition of “public
safety officer,” and denied the claim. Like in Amber-Messick
(see item 8 above), the appellate court reversed: it did
not agree with claimants’ assertion that the congressional
intent to include privately employed individuals within
PSOBA’s coverage is so clear as to make BJA’s
interpretation unsustainable under United States Supreme
Court authority. Groff v. United States, 493 F3d 1343 (U.S.
Fed. Cir., 2007).
10. POLICE FATALITIES SPIKE IN 2007:
The
Associated Press reports that a record number of fatal
traffic incidents
and a double-digit increase in shooting deaths led to
one of the deadliest years for law enforcement officers
in
more than a decade. With the exception of 2001 (which
saw a dramatic increase in deaths because of the September
11 terrorist attacks), 2007 was the deadliest year for
law enforcement since 1989. As of December 26, 2007,
186
officers had died, up from 145 last year. Eighty-one
died in traffic accidents, which surpassed the record of
78
set in 2000. Shooting deaths increased from 52 to 69,
a rise of about 33%. (Think about it: an officer is being
killed in America, on average, every other day!) Of the
81 traffic deaths, 60 officers died in car crashes, 15
were hit by cars and 6 died in motorcycle accidents.
After
traffic crashes and shootings, physical causes such as
heart attacks were the leading cause of death, contributing
to 18 fatalities. Other causes of death included smaller
categories, such as airplane and boating accidents, for
an additional 18 fatalities. Texas led the nation with
22 fatalities, followed by Florida (16), New York (12),
and California (11). The average age of officers who
died in 2007 was 39. Most were men, and average service
in law
enforcement was 11 years.
11. REGISTRATION OF PUBLIC FUNDS IN MEXICO:
With
the new wave of foreign investments being made by pension
boards,
we thought the following tip from a fellow member of
the National Academy of Public Pension Attorneys might
be of
interest. Section 179 of Mexican Tax Law provides an
exemption for qualified pension plan investors in certain
investment
funds investing in Mexico, so that the interest of the
plans in income and gains of investment funds is exempt
from income tax. To qualify for the exemption under Section
179, the pension plan must register with the Registry
of Banks, Financial Entities, Pension and Retirement Funds
and Nonresident Investment Funds maintained by the Ministry
of Finance and Public Credit. There is an initial registration
and an annual renewal thereafter. Any trustees of plans
having investments in Mexico might want to mention this
fact to the appropriate money manager, although we would
hope that any such manager would be aware of this requirement
and would have already complied. Buena suerte.
12. MEMBERS ONLY?:
A report from Law.com
indicates that prosecutors are unlikely to files charges
against the former
Mayo Clinic surgeon who took a picture of a patient’s
tattooed p.enis. The doctor could have been prosecuted
for violating the patient’s rights under federal
laws that safeguard a patient’s privacy. HIPAA violations
are misdemeanors, but no one in Arizona (where the incident
took place) has been prosecuted under the 4-year-old statute.
The executive director of the Arizona Medical Association
believes the doctor should be disciplined. The Mayo Clinic
announced that the doctor was no longer practicing there,
not saying whether he resigned or was fired. The doctor
did acknowledge to Mayo administrators that he snapped
the picture of the patient’s p.enis, which is tattooed
with the words “Hot Rod.” The picture was taken
shortly before gallbladder surgery last month. When the
doctor told the patient he had taken the picture (duh),
he said he “felt betrayed, violated and disgusted.” How
about bewitched, bothered and bewildered? 13. QUOTE OF THE WEEK:
“Get your facts first, then
you can distort them as you please.” Mark Twain
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