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Crusade rises from $100 ticket

A USF associate professor is suing to fix what she believes is a corrupt Tampa system.

By JENNIFER LIBERTO
Published August 25, 2005

TAMPA - It was just a traffic ticket.

A lousy $100 for a quick, tiny bump, when Barbara Orban's white Mercedes Benz slid into the back of a blue BMW on Howard Avenue five years ago. She even got it dismissed.

But a rookie Tampa police officer told Orban that he had to cite her because of agency policy, she recalls.

Thus began the greatest community crusade of her life.

Orban, 51, filed a federal lawsuit last year against the city of Tampa, alleging that it encourages police officers to "maliciously" prosecute drivers - all to augment the police pension fund.

Orban doesn't usually do this sort of thing. She's an associate professor who chairs the Department of Health Policy and Management at the University of South Florida.

But she has spent, by her estimate, $50,000 on this cause, even before filing her federal lawsuit last year, and she expects to spend six figures before it's all over. If she wins, the most she'll get is her attorney fees reimbursed.

For Orban, the money buys peace of mind, the comfort that she might fix what she considers a corrupt city policy. The policy so upsets her that she considered moving her family to California, where she hasn't lived since the 1980s.

"Tampa is a high-crash, high-injury, high-traffic-fatality area," said Orban, who has studied such statistics over the years for her USF job. "Instead of finding methods to prevent these things, people are making money off this. And I think that's terrible."

Her concern?

It's all a little complicated.

But people in most Florida cities - including Tampa and St. Petersburg - pay a tax on insurance premiums. It amounts to 85 cents on every $100. And the money represents the state's only contribution to local police pension funds.

As police officers write more tickets, individual car insurance premiums rise, which increases the tax dollars that flow into police pensions.

Once pension needs are met, cities have discretion over how to spend extra money, as long as it goes toward police benefits.

In Tampa, when the state gives more than what the pension fund needs, the extra money reduces what employees and the city must contribute.

So, in Orban's view, the more tickets an officer writes, the less the officer has to pay toward the pension fund.

"It's not in the community's best interest that police officers get more benefits, if people pay higher insurance rates," Orban said.

Tampa police Lt. Mark Hamlin, who chairs the Fire and Police Pension Board, understands Orban's logic.

But he says few officers even know that insurance premiums help the pension fund.

"In my 15 years of policing," he said, "I've never heard anyone ask tickets to be written to offset pension contributions."

Orban said she's talked to police officers who know, if only vaguely, that they somehow benefit from writing more tickets.

Her federal complaint includes an affidavit from retired police officer Alan Schwartz, who states, "Officers understand that insurance companies pay the police department for crash investigations. However, we are not informed about the payment terms or how the funds are used."

He states that officers are expected to identify a responsible party in an accident and to write a citation.

In 2004, Tampa police officers wrote 124,352 traffic citations - a 42 percent jump over 2003.

Insurance premium taxes climbed by nearly 8 percent, and Tampa's pension fund earned an extra $245,000 because of it, according to state records.

Insurance premium taxes have funded police pensions throughout Florida for years, said Sam Miller, executive vice president of the Florida Insurance Council, who hadn't heard of Orban's lawsuit.

"It's been very important to financing police pensions," Miller said. "I can tell you the Florida Legislature passed it and determined it to be good public policy."

Yet it's uncommon policy, according to Robert Hartwig, chief economist at the Insurance Information Institute, an industry-funded trade group.

States can tax insurance premiums for just about any purpose, Hartwig said.

But he can't think of another state in the nation that uses insurance premium taxes to fund police pensions.

"Many people would be surprised how many secret taxes are levied on automobile and homeowner insurance premiums, some of which have tenuous links on auto safety," Hartwig said.

However interesting the case appears, the legal battle won't be easy, especially in federal court, according to local attorneys.

Judge Steven Merryday spent most of a Wednesday hearing questioning the legal basis for Orban's federal lawsuit. He asked her to refile the 52-page complaint, making sure it's simpler, shorter and more direct.

Merryday called the complaint "interesting," but sounded skeptical that Orban could prove her case using "malicious prosecution," an allegation more commonly used on behalf of those who have been criminally arrested and charged in violation of their Fourth Amendment rights against unreasonable search and seizure.

Orban got a civil citation.

It was tossed on appeal.

For the federal fight, she has to prove she was unreasonably stopped, detained and seized without probable cause, which could be difficult since she was the one who called the police to come to the scene.

"We need a constitutional detention, we need a constitutional seizure, and I don't see it anywhere," Merryday said.

The city's private attorney, John Makholm, agreed.

"There is just no way a traffic investigation is a seizure," Makholm said in court.

Orban's attorney, Joseph Magri, said he's stuck using the malicious prosecution argument, because there are no other choices for a case so unusual.

Orban said her day in court was mostly positive and gave her hope that she could make a difference.

"At many points, I've thought, "I'm just not going to deal with it any further,' and then something happens to change my mind," said Orban.

She finds encouragement from a source some might not expect: Tampa police officers.

What is it they tell her?

"That I have the best chance of getting this resolved."

[Last modified August 25, 2005, 07:01:28]