1.
PUBLIC RETIREE’S INVESTMENT ACT OF 2009:
U.S. Representative Gary Ackerman (D-NY),
Senior Member of the House Financial Services Committee,
has introduced H.R. 710, the “Public Retiree’s
Investment Act of 2009.” The legislation would provide
a vehicle for billions of dollars in private capital to
be injected into banks and financial institutions, mitigating
the need for additional taxpayer bailouts of the financial
sector, while simultaneously guaranteeing public pension
funds a steady rate of return. The measure, introduced to
curtail the ongoing economic meltdown and lack of credit
market liquidity, would allow public employee pension plans
throughout the nation that choose to invest in banks and
financial institutions to earn a guaranteed rate of interest
(8.5% per year) fully backed by the United States Treasury.
The goal is for the legislation to open the door for banks
and financial institutions initially to receive up to $50
Billion in private capital for loans and mortgages, while
public pension funds simultaneously secure an acceptable
and guaranteed return on their investments despite dismal
market conditions. Initial enthusiasm on the part of public
employee pension funds suggests their willingness to put
significantly more money into the program. Under the bill,
money from public pension funds will only be invested with
banks and financial institutions that are currently on the
federal government’s Troubled Asset Relief Program
(TARP) list and that intend to use the funds in order to
expedite making credit available to customers. The legislation
would also help offset losses suffered by public pension
funds whose portfolios have plunged due to poor economic
conditions. Without the bill, many of these plans would
look to local governments and taxpayers -- already strained
severely by the economic crisis -- to cover their obligations
to millions of public employees. In addition to guaranteeing
the interest rate, the principal amount of the investments
would also be backed by the Treasury Department. Approximately
25 million Americans participate in public employee pension
plans. They include plans for state and municipal employees
such as police officers, firefighters, teachers and sanitation
workers.
2. NEW EXPANDED
ADA DEFINITION OF “DISABILITY” MIGHT BE RETROACTIVE:
Employer’s insulin-dependent diabetic
employee whose limitations now prevent him from responding
to occasional power outages is terminated, and sues under
the Americans With Disabilities Act. There is no need to
decide whether the new expanded statutory definition of
“disability” applies retroactively from its
January 1, 2009 effective date, as, even under preexisting
law, he must provide evidence sufficient that he is a “qualified
individual” with a “disability.” Eating
is a major life activity; and, in light of the new amendments,
impairments are to be evaluated in their unmitigated state,
so that, for example, diabetes will be assessed in terms
of its limitations on major life activities when the diabetic
does not take insulin injections or medicine and does not
require behavioral adaptations such as a strict diet. Further,
his condition did not prevent him from performing the bulk
of his job, which was mostly office work. Chuck Carlson
provided the foregoing analysis of Rohr v. Salt River Project
Agricultural Improvement and Power District, Case No. 06-16527
(U.S. 9th Cir., February 13, 2009).
3. STATE BAN ON
POLITICAL PAYROLL DEDUCTIONS DOES NOT INFRINGE ON UNION’S
FIRST AMENDMENT RIGHTS:
Under Idaho law, a public employee may
elect to have a portion of his wages deducted by his employer
and remitted to his union to pay union dues. He may not,
however, choose to have an amount deducted and remitted
to the union’s political action committee, because
Idaho law prohibits payroll deductions for political activities.
A group of unions representing Idaho public employees challenged
this limitation. They conceded that the limitation was valid
as applied at the state level, but argued that it violated
their First Amendment rights when applied to county, municipal,
school district and other local public employers. The United
States Supreme Court did not agree. The First Amendment
prohibits government from “abridging the freedom of
speech;” it does not confer an affirmative right to
use government payroll mechanisms for the purpose of obtaining
funds for expression. Idaho’s law does not restrict
political speech, but rather declines to promote that speech
by allowing public employee checkoffs for political activities.
Such decision is reasonable in light of the state’s
interest in avoiding the appearance that carrying out the
public’s business is tainted by partisan political
activity. That interest extends to government at the local
as well as state level, and nothing in the First Amendment
prevents a state from determining that its political subdivisions
may not provide payroll deductions for political activities.
Ysursa v. Pocatello Education Association, Case No. 07-869
(February 24, 2009).
4. IN DISABILITY
PENSION CASE, LENGTH OF BOARD DELIBERATION DOES NOT DETERMINE
DUE PROCESS:
Gipson, a City of Orlando police officer,
sought review of City of Orlando Police Pension Board of
Trustees’ order denying his application for service-connected
disability pension benefits. Court review of an administrative
agency decision is governed by a three-part standard of
review: (1) Whether procedural due process was afforded;
(2) whether essential requirements of law were observed;
and (3) whether the decision was supported by competent
substantial evidence. On the first point, Gipson claimed
the Board deprived him of procedural due process by failing
to engage in official deliberations prior to denying his
application. Procedural due process requires both fair notice
and a real opportunity to be heard at a meaningful time
and in a meaningful manner. It was undisputed that Gipson
was given a fair notice and afforded an opportunity to be
heard by the Board. Gipson was represented by counsel and
both he and his wife were permitted to testify at the hearing.
The fact that there may have been no Board discussion during
the actual deliberation phase does not evidence deprivation
of procedural due process rights. On the second point, Gipson
was required to be “permanently and totally disabled.”
Board’s use of the term “partial” in its
order was not a misapplication of law, but rather a reference
to the term used by Gipson’s own treating physicians.
On the third point, Gipson’s treating physicians did
opine that there was a medical condition present that prevented
Gipson from performing his job as a police officer. However,
the independent medical examiner stated he would not place
any permanent physical restrictions on Gipson. That doctor’s
opinion and testimony, which is in conflict with the other
doctors, is neither inherently credible nor improbable,
and thus alone constitutes competent substantial evidence
to support the Board’s order of denial. Gipson v.
City of Orlando Police Department, Case No. 07-CA-9861 (Fla.
9th Cir., December 1, 2008).
5. DECEDENT NOT “TRAVELING
EMPLOYEE” FOR WORKERS’ COMP PURPOSES:
Section 440.092(4), Florida Statutes, provides
that an employee who is required to travel in connection
with his employment who suffers an injury while in travel
status should be eligible for workers’ compensation
benefits only if the injury arises out of and in the course
of employment while he is actively engaged in the duties
of employment. Under the general rule, where an employee,
as part of his duties, must remain in a particular place
or locality until directed otherwise, or if for a specified
length of time, such an employee is not expected to wait
immobile, but may indulge in any reasonable activity at
that place, and if he does so, the risk inherent in such
activity is an incident of employment. (The most prevalent
example finds a flight attendant away from home, in between
assignments.) Here, the decedent, a resident of Jacksonville,
was required to be in South Florida on a Monday morning.
For personal reasons, she flew to South Florida on the Saturday
before her training assignment was to begin. After dining
out with a co-worker Saturday night, decedent and the co-worker
went window shopping and then went to a night club. As decedent
was attempting to cross the street, she was struck and killed
by a car. Her personal representative sought payment of
death benefits and funeral expenses, asserting that decedent
was a traveling employee at time of her death. On appeal
from an adverse ruling of the Judge of Compensation Claims,
the appellate court found that decedent was not a traveling
employee when the accident occurred. Unlike a flight attendant
obligated to remain away from home between assignments,
decedent’s presence in South Florida at the time of
the accident was purely voluntary. Further, the court also
rejected the alternative theory of recovery that decedent
had been in the course and scope of her employment when
the accident occurred. Houck v. Tarragon Management, Inc.,
34 Fla. L. Weekly D424 (Fla. 1st DCA, February 24, 2009).
6. THE PUBLIC SECTOR
WORKFORCE -- PAST, PRESENT AND FUTURE:
A researcher from the Center for State
and Local Government Excellence recently presented a paper
at the Labor and Employment Relations Association meeting.
Here are some highlights:
- The public sector workforce tends to be older than
the private sector’s.
- The public sector workforce is more educated than that
of the private sector’s.
- Job opening and turnover rates (layoffs, discharges,
quits) are lower in the public sector, although retirement
rates are about the same as those in the private sector.
- Employment in state and local government is expected
to increase by 8 percent overall between 2006 and 2016,
with a 10-year growth rate of 11 percent for education
positions and more than 20 percent for health care positions.
- State and local government leaders view competition
for talent, location of positions and family considerations
as the major challenges to recruiting and retaining the
public sector workforce of the future.
Verrrrry interesting.
7. DISORDER IN THE AMERICAN
COURTS:
ATTORNEY: Now doctor,
isn't it true that when a person dies in his sleep, he
doesn't know about it until the next morning?
WITNESS: Did you actually
pass the bar exam?
8. QUOTE OF THE
WEEK:
“Never keep up with the Joneses --
drag them down to your level.” Quentin Crisp |
