1.
FLORIDA APPELLATE COURT UPHOLDS FORFEITURE OF PENSION BENEFITS:
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).
2. FLORIDA
ATTORNEY GENERAL SETS UP ANOTHER HURDLE TO “ELECTRONIC” PARTICIPATION
AT PUBLIC MEETINGS:
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.
3. NEW
ON-LINE SALARY CALCULATOR ALLOWS COMPARISON OF COST-OF-LIVING AMONG
CITIES IN THE UNITED STATES:
If you decide to move, you can compare your needs in the new city for
a comparable living standard. The site also features reports on schools
in the various cities. To visit the site, go to http://www.homefair.com/homefair/calc/salcalc.html.
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