Cypen & Cypen
MARCH 12, 2009
Stephen H. Cypen, Esq., Editor
By order dated March 3, 2009, J. D. Parrish, Florida Administrative Law Judge, has recommended that the Florida Division of Retirement enter a final order finding that ex-Broward County Sheriff Kenneth Jenne was convicted of crimes that require forfeiture of his rights and benefits under the Florida Retirement System, pursuant to Florida law. The Division of Retirement notified Jenne that his retirement benefits had been forfeited in accordance with Section 112.3173, Florida Statutes, and Jenne challenged that decision. Section 112.3173, Florida Statutes, provides in pertinent part:
The statute also defines “specified offense” to mean:
If forfeiture is applicable, the public officer or employee forfeits all rights and benefits under any public retirement system of which he or she is a member, except for return of his or her accumulated contributions as of date of termination. Jenne was charged with the federal crimes of conspiracy to commit mail fraud and filing a false tax return. He subsequently entered into an agreement to plead guilty as charged, confirming that he was “guilty of the offenses to which he was pleading guilty; that his decision to plead guilty was the decision that he had made; and that nobody had forced, threatened, or coerced him into pleading guilty.” On the same date, Jenne entered into a statement of factual basis for a guilty plea, wherein he agreed that, if the case went to trial, the government would have been able to establish the facts recited therein beyond reasonable doubt. In recommending forfeiture, the Administrative Law Judge recognized that federal crimes may be the basis for forfeiture of rights and benefits under FRS, if elements of the criminal activity “match” a Florida felony. Here, Jenne’s admissions are adequate to support findings and conclusions that would match to a felony under Florida law. The Administrative Law Judge took notice of Warshaw v. City of Miami Firefighters’ and Police Officers’ Retirement Trust (see C&C Newsletter for September 15, 2004, Item 1); Hames v. City of Miami Firefighters’ and Police Officers’ Retirement Trust (see C&C Newsletter for March 6, 2008, Item 1); and Simcox v. City of Hollywood Police Officers’ Retirement System (see C&C Special Supplement for August 28, 2008). (We are honored to have played a role as counsel in all of the foregoing cases.) For the Administrative Law Judge here is the bottom line:
Within fifteen days from the date of the recommended order, Jenne has the right to submit written exceptions to the Division of Retirement (which is ultimately responsible to issue a final order in the case). Jenne v. Department of Management Services, Division of Retirement, Case No. 08-1829 (FL DOAH, March 3, 2009). Sadly, this case makes it difficult for one to have faith in public servants. Jenne had a record of almost forty years of public service: Assistant State Attorney; Executive Director of the Broward County Charter Commission; Broward County Commissioner; State Representative; State Senator; and, of course, Sheriff of Broward County. Perhaps Jenne thought “public service” meant service from the public rather than for the public.
2. NEW JERSEY TROOPERS FIGHT RETIREMENT RULE:
More than 120 New Jersey State Police troopers have filed a lawsuit seeking to overturn the agency’s mandatory retirement policy. According to philly.com, the troopers say they are fit and want to stay in law enforcement, contending the requirement that they retire by age 55 is discriminatory and outdated. However, in 1987 the Pennsylvania Supreme Court upheld the state police retirement cap then in effect. Plaintiffs make one interesting allegation (which is probably irrelevant): deferring pensions of plaintiffs who wish to continue their service will greatly reduce the pension liability of New Jersey citizens. As our readers know, in our opinion, Chapter 760, Florida Statutes, the “Florida Civil Rights Act of 1992," prohibits mandatory retirement in Florida.
3. STATE PLANS’ FUNDING STATUS LOWER IN 2008:
State defined benefit plans were 84% funded in 2008, down from an estimated 96% in 2007, according to a Wilshire Consulting Report reviewed in pionline.com. Average asset allocation for all 125 plans studied was 38.1% U.S. equities, 26.7% U.S. bonds, 18.8% non-U.S. equities, 5.9% real estate, 5.6% private equity, 0.9% non-U.S. bonds and 4% other investments. The report broke data into two groups: 59 retirement systems that reported on or after June 30 and 66 systems that reported before June 30. Of the 59 state retirement systems that reported on or after June 30, assets declined 7.6% to $803..6 Billion; liabilities grew to 5.9% to $1.041 Trillion. The funding ratio for these plans was 77% in 2008, down from 88% in 2007.
4. GAO ‘S ROLE IN HELPING TO ENSURE ACCOUNTABILITY AND TRANSPARENCY UNDER ARRA:
On March 5, 2009 Acting Comptroller General of the United States, Gene L. Dodaro, testified before the Senate Committee on Homeland Security and Governmental Affairs on GAO’s role in helping to ensure accountability and transparency under the American Recovery and Reinvestment Act of 2009 (see C&C Newsletter for February 19, 2009, Item 1). The Recovery Act delineates an important set of responsibilities for GAO and others in the accountability community. GAO’s bimonthly reviews of selected states’ and localities’ uses of Recovery Act funds will examine how funds are being used in achieving the stated purposes of the Recovery Act. GAO has selected a core group of 16 states to follow over the next few years to provide an ongoing longitudinal analysis of the use of funds under the Recovery Act. These states contain about 65% of the U.S. population, and are estimated to receive about two-thirds of the intergovernmental grants funds available through the Recovery Act. In addition, GAO will sample localities within these states to provide a perspective on use of funds at the local level. Besides reporting on the core group of 16 states, GAO will be reviewing recipient reports from all 50 states as part of its responsibilities to review these filings. Depending on those assessments and other risk-based analyses, GAO’s reviews may include additional states, localities or other recipients as implementation proceeds. There are many implementation challenges to ensuring adequate accountability and efficient and effective implementation of the Recovery Act. The risk for fraud and abuse grows when billions of dollars are going out quickly, eligibility requirements are being established or changed, and new programs are being created. This fact suggests a need for a risk-based approach for targeting attention on specific programs and funding structures early on based upon known strengths, vulnerabilities and weaknesses, such as a track record of improper payments or contracting problems. In that regard, the accountability community has, in recent years, produced a wide variety of best practices and related guides, which are available to agencies to assist them in ensuring they have the needed internal controls in place from the outset. These best practices and related guides cover areas such as fraud prevention, contract management and grants accountability. We are not holding our breath on this one.
5. CLEAN-SHAVEN REQUIREMENT VIOLATES RFRA:
The District of Columbia requires its firefighters and emergency medical service workers to be clean shaven. A number of such employees who wear beards for religious reasons challenged this requirement under the Religious Freedom Restoration Act. The district court granted summary judgment to the firefighters upon finding that the District of Columbia had not shown a material issue as to whether the requirement was narrowly tailored. Specifically, the district court found the District of Columbia had conceded the safety for beared firefighters of one form of respirator (SCBA). On appeal, the court agreed that the District of Columbia failed to satisfy its burden in opposing summary judgment by setting forth specific evidence showing a triable issue of fact as to safety of the SCBA, and affirmed. Under RFRA, the federal government and the District of Columbia may not substantially burden a person’s exercise of religion unless the government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest and (2) is the least restrictive means of furthering that compelling governmental interest. The statute makes clear that the term “demonstrates” means meets the burdens of going forward with the evidence and of persuasion. Potter v. District of Columbia, Case No. 07-7163 (U.S. D.C. Cir., March 6, 2009).
6. POLICE OFFICER MAY BE LIABLE FOR MISHANDLING ARRESTEE’S PACKAGE:
Having boarded plane without his ticket, man refuses to deplane, and is removed. He struggles with police in the jetway and on the tarmac. Having him handcuffed and in the backseat of police car, officer in front seat allegedly reaches back and squeezes arrestee’s testicles as hard as he can. The jury properly found officer liable under Section 1983, given medical evidence of testicular injury. For lack of proper motion, it was error to grant officer’s motion for judgment as a matter of law. And, as the jury’s verdict was not against the clear weight of the law, it was also error to grant his motion for a new trial. Once again, we have relied upon Chuck Carlson for this little blurb. Tortu v. Las Vegas Metropolitan Police Department, Case No. 06-16663 (U.S. 9th Cir., March 3, 2009).
7. SOMETHING ABOUT FICO SCORES:
Your FICO score is a number between 300 and 850, intended to answer one question: how risky are you? It assigns specific weights to five criteria:
Credit scores are an extremely important part of how lenders evaluate the likelihood that you will pay back your loan on time, but they also use other information when deciding whether to grant you credit and how much to grant you. Here are some general guidelines on what the scores mean:
FICO scores, the most widely used credit indicator, are distributed by Fair Isaac Corporation; hence, the acronym.
8. ON DEVELOPMENT:
At work you might think that you get a “personnel review” once a year at your company. Wrong. You get reviewed every day. It’s an informal, unspoken review that you get in the company lunchroom, parking garage, hallways and in every business and social meeting. It’s wherever, whenever, forever. Being watched is how “hi-pots” (high potential people) are identified. It’s the way lo-pots are identified as well! Whether you like being watched and judged or not, it happens. Do what you can to have people see what you want them to see. It’s a challenge, but it’s also an opportunity. This advice comes from Executive Charisma (which sounds like an oxymoron to us).
9. DISORDER IN THE AMERICAN COURTS:
10. QUOTE OF THE WEEK:
“Humans are the only creatures on earth that allow their children to come back home.” Bill Cosby
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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.