EXHIBIT A PLAN DOCUMENT OF THE LEGAL DEFENSE PLAN OF THE FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATIO N

Transcription

1 EXHIBIT A PLAN DOCUMENT OF THE LEGAL DEFENSE PLAN OF THE FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATIO N Effective: September 1, 1999 Amended: July 17, 2009

2 FLEOA LEGAL DEFENSE PLAN To Participants in the Legal Defense Plan, via Federal Law Enforcement Officers Association (FLEOA) National Executive Committee members: This booklet is being distributed to give you information and guidelines about the structure, operation and benefits concerning the Legal Defense Plan of FLEOA. Please show this with other officers and participants in the Legal Defense Plan. For your convenience in using this booklet, it is divided into two parts: Part I contains the Summary Legal Defense Plan Guideline Description with general information about the administration of the Legal Defense Plan and structure of the benefits plan. Part II contains the text of the Legal Defense Plan Document, setting forth the provisions concerning the coverage and benefits. We recommend that you read this booklet carefully so that you will be fully informed as to the eligibility requirements and available benefits. If you have questions which the booklet does not answer, or if any clarifications are needed, please contact a FLEOA National Officer. Only the National Officers represent FLEOA in administering the Legal Defense Plan and giving information relating to the amount of benefits, eligibility, and other provisions of the Legal Defense Plan. Statements by other persons, including local association personnel are not binding on FLEOA or FLEOA Legal Offices. Sincerely, FLEOA Legal Committee FLEOA Legal Defense Plan Lawrence Berger, FLEOA General Counsel [2]

3 SUMMARY PLAN DESCRIPTION OF THE FLEOA LEGAL DEFENSE PLAN (a) Name of the Plan: This plan is known as the Legal Defense Plan (LDP) of the Federal Law Enforcement Officers Association (FLEOA). (b) Name and Address of Sponsoring Organization: FLEOA P.O. Box 326 Lewisberry, PA (717) (c) Type of Administration: The LDP is administered by FLEOA General Counsel and duly elected National Officers of FLEOA, along with a legal committee, appointed by and serving at the pleasure of the FLEOA National President, with the advice of FLEOA General Counsel. (d) Name, Address and Telephone Number of the LDP Administrator: Mahon & Berger, Esqs. FLEOA General Counsel 21 Glen Street Suite D Glen Cove, NY (516) [3]

4 (e) Participation, Eligibility and Benefits: A person is eligible to apply for membership in the Federal Law Enforcement Officers Association in accordance with the terms and conditions of the FLEOA National Constitution. (f) Circumstances Which May Result in LDP Ineligibility or Denial of Benefits: A person who is eligible for benefits under the LDP may become ineligible as a result of one or more of the following circumstances: 1. Termination of the participant in membership in FLEOA. 2. Involuntary termination of employment of the participant. 3. Incident prior to membership enrollment. 4. Incident occurring outside the scope of employment. (g) Source of Contributions: The LDP is financed by dues paid by the individual participants through FLEOA set forth in the LDP Document. (h) Procedures to be Followed in Presenting Claims for Benefits: To perfect a claim for benefits under the LDP, it is necessary to notify the following law firm: Mahon & Berger, Esqs. FLEOA General Counsel 21 Glen Street Suite D Glen Cove, NY (516) [4]

5 LEGAL DEFENSE PLAN DOCUMENT PREAMBLE WHEREAS, the Federal Law Enforcement Officers Association (hereinafter referred to as FLEOA) is an incorporated not-for-profit Professional Association organized under the laws of the State of New York, and is composed of individual federal agents from various federal law enforcement agencies throughout the United States of America; and WHEREAS, federal agents have been subjected in recent years to a variety of litigation arising out of the performance by them of their law enforcement duties; and WHEREAS, FLEOA has established a Legal Defense Plan (hereinafter referred to as LDP) to provide legal service benefits known as the LDP, governed by FLEOA General Counsel in conjunction with the duly elected National Officers of FLEOA whose powers and duties include control and management of the legal services policy. Now, therefore, the FLEOA National Executive Board does hereby submit a LDP Document as set forth in the following pages. [5]

6 ARTICLE I DEFINITIONS 1. Administrative Of the specific department or agency which employs a member 2. Legal Office The administration office of the Legal Defense Plan FLEOA Legal Defense Plan c/o Lawrence Berger, General Counsel 21 Glen Street Suite D Glen Cove, NY (516) Legal Committee the Legal Committee of FLEOA and of the Legal Defense Plan 4. FLEOA Law Firm or Law Firm the law firm of Mahon and Berger, Lawrence Berger, Esq., General Counsel who shall supervise and provide legal services under the Legal Defense Plan 5. Employment employment as a law enforcement officer, as defined herein 6. Legal Administrator Lawrence Berger, Esq., General Counsel, who is retained by FLEOA to supervise the provision of legal services under the Legal Defense Plan 7. Monitor the act of tendering or tender of defense to Member s employer, demand on employer for independent legal counsel when appropriate, receipt and review of pleadings, discovery of documents and status report from employer s legal counsel, and discussion with the employer s legal counsel when necessary 8. Member a federal law enforcement officer who qualifies for benefits under the Legal Defense Plan pursuant to Article II hereof 9. Law Enforcement Officer an active full time federal law enforcement officer, as defined by the FLEOA National Constitution 10. Legal Defense Plan or Plan the group prepaid legal services plan as set forth herein and any amendment thereto 11. FLEOA Federal Law Enforcement Officers Association [6]

7 ARTICLE II ENTITLEMENT TO BENEFITS 1. Initial Entitlement to Benefits A law enforcement officer shall become a member entitled to benefits under this particular LDP as set forth in Article III hereof, for acts or omissions of the member which occur after the following conditions are met: (a) Application of the member to FLEOA and acceptance of such application by the National Membership Committee; and (b) Acceptance of the request or any part thereof by the Legal Committee 2. Required Dues: Amount the Dues required in order to be entitled to benefits under the LDP are as follows: (a) Each member shall pay the annual dues to FLEOA, (b) Time of Payment Payment of the Dues as prescribed in Section 2 of this Article shall be made on an annual basis by each member to FLEOA (c) Method of Payment Payment shall be deemed to have been made as of the date of acceptance by the National Membership Committee. The foregoing shall not apply, however, where payment is made by check and the same has been dishonored at the bank or financial institution upon which it was drawn (d) Effect of Delinquency If such payments are not made as required in this Section, benefits under the LDP for the member shall cease ninety (90) calendar days after the day following the payment due date described in Section 2(b) of this Article (e) Late Payment However, entitlement to LDP benefits shall be reinstated on the date of actual payment of all dues, within ninety (90) calendar days of the payment due date, effective retroactively to the payment due date. Any such late payment shall automatically be applied first to the period of delinquency and then, if sufficient, to the current period [7]

8 (f) New Application If the delinquency continues for more than ninety (90) calendar days, a new application shall be required, and retroactive coverage shall not be available unless specifically approved by the Legal Committee, in consultation with the FLEOA Board of Directors. 3. Termination of Benefits The Benefits for a Participant shall automatically terminate: (a) When his/her participation (i.e., payment of contributions hereunder) in FLEOA terminates; or (b) Subject to Sections 4 and 5 of this Article, when the employment of the Participant terminates. 4. Retired Participants A former Participant shall be entitled to benefits in accordance with the FLEOA Constitution: (a) Retired and resigned members are entitled to legal advice and/or representation for matters relating to their employment while they were in federal law enforcement and during the period of their regular membership. In addition, retired members are entitled to legal advice with regards to annuity and disability retirement matters. Retired members are also eligible to receive legal consultation and assistance regarding post-retirement employment in the private sector, with the U.S. Government or with any state or local government agency. Included but not limited to the scope of these services are issues relating to employment as a re-hired annuitant, hiring and termination issues, employment contracts, issuance or denial of security clearances, age discrimination, issuance or non-issuance of retirement credentials and workers compensation cases. (b) FLEOA legal services will provide retired members with legal advice and/or consultation, but not representation, in civil or criminal lawsuits. In the event of incidents arising out of the provisions of the LEOSA Act of 2004 (HR 218), FLEOA [8]

9 legal services will provide legal advice and/or consultation including, as appropriate, timely location appearances up to the issuance of an official law enforcement complaint or indictment. (c) FLEOA legal services will provide legal assistance and/or consultation including contracting government agencies and other organizations in order to assist retired members relative to medical coverage under the Federal Employees Health Benefits program and private or government insurance coverage/benefits. On request, FLEOA legal services will provide consultation to spouses of deceased retired members relative to government death and insurance benefits. ARTICLE III BENEFITS Subject to the exclusions and limitations set forth in this Plan, a member is entitled to services as described hereafter, for which he/she has properly applied, for which the required contributions have been made, and which has been reviewed and approved by the Legal Committee. Subject to the provisions of this Plan, a Member shall be entitled to the following legal services: 1. Administrative Actions (a) Legal representation, to include written and oral response, for administrative disciplinary action or performance-based action brought against him/her arising from an act or omission of the Member within the scope of his/her employment through the response to a proposed adverse action or performance-based action. (b) All customary and reasonable investigation/counseling services in preparation for an action described in subsection (a) hereof, whenever it appears reasonably probable that such an [9]

10 action will be commenced, including legal advice and representation with respect to Internal Affairs investigations. 2. Serious Incident Counseling (a) Legal advice and monitoring of interviews of a Member with the U.S. Attorney s Office, local or state prosecutors, and/or Internal Affairs when a Member is involved in a serious on-thejob incident (i.e. shooting, auto accident); (b) Review of any and all affidavits and/or statements to be submitted to these entities; (c) Contact with agency personnel and/or Assistant U.S. Attorneys and/or local law enforcement entities regarding incidents. 3. Criminal Actions Initial Emergency Counseling Initial counseling for potential criminal actions brought against a Member arising from the act or omission of him/her within the scope of his/her employment, up to the point the Member is advised he/she is a target, subject, or potential defendant. 4. Workers Compensation Claims Legal advice, review and monitoring regarding a Workers Compensation claim, except that no benefits shall be provided under this Plan related to disciplinary action arising from matters within the jurisdiction of the Workers Compensation Act or any other similar ordinance, law, rule, regulation or any contract of issuance. 5. EEO Proceedings (a) Commenced By Member - Legal advice, review and monitoring of EEO claims through the consultation and informal stage, including mediation. (b) Filed Against Member - Legal advice, review and monitoring of EEO claims through the consultation, informal stage, including mediation, and formal stage where there is adverse action or performance-based action pending. [10]

11 6. Grievances (a) Initial consultation; (b) Review documentation and consult with Member; (c) Review of grievance, research and advice regarding relevant case law; (d) Advice, review and monitoring through appeals processes. 7. Civil Actions A. Rights of Member 1) Consultation with member and review of materials; 2) Legal advice regarding scoping by the U.S. Department of Justice; 3) Legal advice and monitor process by the U.S. Department of Justice as requested by Member; 4) Nothing in this Plan, however, shall be construed as conferring any of the following benefits: (a) Legal defense in a civil action against public employee and employer, and/or (b) Employer accepts defense and agrees to indemnify. 5) No benefits shall be provided under this Plan in any civil proceeding in which the Member s employer or its insurer, or other insurer, to which the Member may be entitled, whether by agreement, policy or operation of law, agrees to or undertakes to provide a defense unless specifically authorized by the Legal Committee in conjunction with the Board of Directors. B. Reservation of Rights by Employer 1) In the event a Member s employer agrees to defend the Member, but refuses to fully indemnify the Member (including indemnification for punitive damages) or asserts a reservation of rights as to indemnification of the Member s pending outcome of the [11]

12 proceeding, then the Member may be entitled to benefits as set forth in Article III hereof, limited to representation only if the following three (3) requirements are met: (a) The Legal Committee determines, in accordance with the advice of legal counsel, that there is a considerable likelihood that punitive damages will be awarded against the Member, based on a conflict of interest or other circumstances; and (b) The LDP is subrogated to the Member s rights against the employer; and (c) The Member does not have any other insurance coverage which provides for legal representation. 2) In the event that these three (3) requirements are not satisfied, the LDP shall monitor, as defined in Article I hereof, the case to ascertain if a considerable likelihood of punitive damages subsequently arises, in which event the case will then be referred to the Legal Committee for reconsideration of acceptance for benefits as set forth in Article III hereof. C. Employer Refuses Defense In the event the employer or its insurer refuses to defend the civil proceeding, subject to the conditions set forth in (2)(a) of this Section, the Member shall be entitled to benefits as set forth in Article III hereof, and the LDP shall be subrogated to the Member s rights against his/her employer or its insurer and/or the Member s insurer. D. Third Party Recovery In the event that a Member shall be entitled to or recover under any statute or regulation or recover from any third party any amounts as damages (other than lost compensation), attorneys fees or costs in a case in which the LDP provided benefits, the FLEOA Law Firm shall be entitled to reimbursement from such Member to the full extent of the services rendered by the FLEOA Law Firm on behalf of said Member hereunder. Members agree to cooperate with the FLEOA Law Firm in this regard, and to that end, upon request, execute any and all documents necessary to convenient to facilitate such [12]

13 recovery by the FLEOA Law Firm and, if such Member shall have a right of action against any such third party for such damages, attorneys fees or costs and does not wish to pursue the same, he/she will, upon request, assign such right of action to the FLEOA Law Firm to the extent lawfully permissible and assist the FLEOA Law Firm in its prosecution of such cause of action. 8. Military Non-Judicial Punishment: 10 U.S.C. Section 815 (Article 15) A Member shall be entitled to legal advice, review, monitoring, and representation regarding Article 15 disciplinary actions. 9. Miscellaneous A) Legal advice regarding disability retirement options; B) Legal advice, review and monitoring regarding Office of Special Counsel consultation; C) Legal advice regarding cases of general concern to FLEOA and its membership; D) Legal advice of the following matters: (1) Availability Pay (2) Pay and benefit disputes (3) Whistleblower retaliation (4) Involuntary transfers (5) Henthorn and Giglio disclosures E) As in the past, the Member will be responsible for costs, including but not limited to, transcripts, federal express or express mail, and copying costs. 10. Legal Representation Involving Affirmative Relief Subject to subsections 7(b) and 7(c) hereof, a Member shall be entitled to legal advice and monitoring of an action arising from an act or omission within the scope of the Member s employment, where that Member is being represented by government counsel; [13]

14 11. Rights of a Deceased Participant s Estate The estate of a deceased person, who was a Member at the time of his/her death, shall be entitled to the benefits under the LDP to which the Member was entitled at the time of his/her death. 12. Cases of General Importance FLEOA General Counsel and the Board of Directors may, in its sole discretion, recommend that legal service benefits be provided for a case, in any court or tribunal of appropriate jurisdiction, of general importance and significance to Members. In determining whether to authorize the extension to benefits under this Section, the Board of Directors shall consider the factors set forth in Section 7(c) of this Article. The Board of Directors shall have the sole discretion to approve or disapprove such recommendation, and compensation shall be set forth by the Board of Directors and the FLEOA Law Firm. ARTICLE IV EXCLUSIONS AND LIMITATIONS In addition to exclusions and limitations set forth elsewhere in the LDP, the following exclusions and limitations shall apply: 1. Exclusions The provisions of benefits under the LDP shall be subject to the following exclusions: (a) Employment Practices Consultation benefits shall only be provided under the LDP for any action for affirmative relief or remedy in any case where the Member is represented by the government and/or agency; (b) Damages, including but not limited to Punitive Damages No benefits shall be provided under the LDP to cover and monetary award for damages or otherwise, whether by judgment, settlement, or otherwise, against a Member in any action; [14]

15 (c) Attorney Fees No benefits shall be provided under the LDP to cover the attorneys fees, costs of an opposing party, or any other amounts awarded against a Member in any action; (d) Breach of Employment Contract No benefits shall be provided under the LDP related to proceedings brought against a Member for breach of an agreement with his/her employer to remain unemployed; (e) Medical No benefits shall be provided under the LDP related to proceedings involving government and private contractors regarding the medical condition of a Member. 2. Limitations (a) Non-Cooperation or Misrepresentation by Member No benefits shall be provided to a Member who is untruthful with his/her counsel, or who does not cooperate with his/her counsel. In such case, the right of said Member to legal services hereunder may be terminated or suspended, subject to appeal to the Legal Committee, whose decision shall be final. Furthermore, if benefits are provided to a Member based upon misrepresentation by the Member to the FLEOA Law Firm, the Legal Administrator and/or Legal Committee, they shall be entitled to terminate or suspend benefits hereunder, and to reimbursement to FLEOA and/or the FLEOA Law Firm of the value of benefits provided based on the misrepresentation. (b) Non-Interference No provision of the LDP shall require the Legal Administrator, the Law Firm, its employees and attorneys, or any attorneys associated with them, to perform any act in violation of any State or Federal Bar or Rules of Professional Conduct. (c) Settlement Opportunity or Jeopardy Benefits shall be terminated in the event it is determined by the Legal Administrator or General Counsel that it is in the best interest of the Member to cease his/her representation in any particular case, e.g., in cases where continued proceedings may subject the participant to more severe civil, criminal or administrative sanctions, to damages or attorneys fees, or where the Member has rejected a reasonable settlement proposal to resolve his/her case [15]

16 (d) Appeal No benefits shall be provided to appeal a decision to court unless the Law Firm determines, upon written request, that there exists a reasonable likelihood of success on the appeal, and that all the requirements set forth in Article III, Section 10(c) are satisfied. 3. Coordination of Benefits Benefits under the LDP shall not be provided to the extent they are furnished to a Member by any other plan, program or policy which provides group legal services to federal law enforcement officers. ARTICLE V CLAIMS PROCEDURES 1. Telephone Hot line FLEOA shall maintain a 24-hour-a-day telephone service to facilitate proper response to the individual Member s legal requirements. The number is (516) 228-FLEOA. The toll-free number is (877) 228-FLEOA. 2. Dissatisfaction or Non-Cooperation with LDP Attorneys In event a Member is dissatisfied with the services of a particular attorney, or fails or refuses to accept the advice of the General Counsel or the Law Firm, such Member shall be free to employ other counsel at his/her own expense to represent him/her, and the LDP shall be free from further obligation to such Member to provide benefits or otherwise. 3. Termination of LDP Benefits The provisions of the LDP benefits to a Member may be discontinued when it is determined by the General Counsel that it is in the best interest of the Member to cease his/her representation in any particular case, i.e., in cases where continued proceedings may [16]

17 subject the Member to more severe civil, criminal or administrative sanction, to damages or attorneys fees, or where the Member has rejected a reasonable settlement proposal to resolve his/her case, etc. In such case, LDP benefits may be terminated or suspended, subject to the Member s right of appeal to the Legal Committee whose determination shall be final and binding on the Member. The provisions of benefits for legal services to appeal a decision to court shall be denied unless the Legal Committee determines there is a reasonable likelihood of success, and that all the requirements set forth in Article III, Section 10(c) are satisfied. 4. Limitation of Rights Neither the establishment of the LDP, nor any modification thereof, nor the creations of any fund or account, nor the payment of any benefits shall be construed as giving any Member or other person any legal or equitable right of action, or any recourse against FLEOA, the Legal Committee or any employees thereof, or the General Counsel of the Law Firm or its associated or its employees. 5. Applicable Laws and Regulations References in the LDP to any particular sections of any local, state or federal statute shall include any regulation pertinent to such sections and any subsequent amendments to such sections or regulations. 6. Confidentiality It is agreed and understood that each Member to whom assistance is rendered under the LDP is entitled to the same rights and consideration, including the right of confidentiality, to which any other client of any attorney is entitled, and the General Counsel and/or Legal Committee shall not be required to, nor will it, reveal to any other person, including FLEOA, its officers, agents or employees, any matter revealed to them in confidence by such individual member in the course of their representation. [17]

18 ARTICLE VII CONFLICT In the event of a conflict with a Member who is already represented by the Law Firm, it is the responsibility of Mahon & Berger to obtain competent counsel at reasonable attorneys fees to be paid by FLEOA with the approval of the Legal Committee. ARTICLE VIII NO CRIMINAL CASES Except as provided in Article III, Section 3, the Law Firm agrees that it will not represent any person, Member or non-member, in local, state or federal criminal proceedings. [18]