On August 17, 2016 the First Appellate District Court ruled on the lawsuit brought by the Marin Association of Public Employees against the Marin County Employees’ Retirement Association (MCERA) and State of California. The case was brought after MCERA eliminated pay items considered pensionable following the States enactment of the California Public Employees’ Pension Reform Act of 2013.
The Act mostly just enacted lower benefit formulas for employees hired after 2013. For existing employees, the Act did little of substance other than attempting to eliminate pension spiking, which is the practice of increasing an employee’s retirement allowance by increasing final compensation and including various non-salary items such as unused vacation pay, pay for uniform allowances, pay for equipment or vehicle use, and adding service credit for unused sick time, vacation time or leave time.
The Marin County Employees Association sued claiming they were entitled to those benefits because they were a “vested right” based on the legal theory that once a pension benefit is enhanced it can never be taken away, something commonly referred to as the “California Rule”.
The California Rule has been used for years to prevent the state, cities and counties from modifying pension formulas for existing employees.
The conclusion of the Appellate Court was that the only constitutional protection provided to employees was for a “reasonable” pension and that until the employee retires, their pension benefits are subject to change to keep the plan flexible and that this flexibility is necessary to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system and carry out its beneficent policy.
Each county plan is administered by a retirement board, which is required to determine whether items of remuneration paid to employees qualify as ‘compensation’ and therefore must be included as part of a retiring employee’s ‘final compensation’ for purposes of calculating the amount of a pension.
In the aftermath of the severe economic downturn of 2008–2009, public attention across the nation began to focus on the alarming state of unfunded public pension liabilities. Pension funds for state and local government workers throughout the country are underfunded by approximately a trillion dollars according to their actuaries and by as much as $3 trillion or more if more conservative investment assumptions are used. The Federal government also has $3.5 trillion in unfunded pension liabilities.
The Growing Pension Crisis
The Court in their ruling stated the depth of the pension crisis in California quoting the results of the Stanford Institute for Economic Policy Research which calculated the total unfunded liability for all pension systems in California.
The Institute determined the California Public Employees’ Retirement System, the California State Teachers’ Retirement System, and the University of California Retirement System, and County systems throughout California had $281 billion in unfunded liabilities assuming a 7.5% rate of investment return. This amounts to $22,000 worth of unfunded liabilities per California household. They also calculated the liability using the same rate of return CalPERS uses if an agency wants to leave their system, which is a 3.7% rate of investment return. This increased the total unfunded liability to $946 billion or $75,000 per household.
It is also important to note that as staggering and unaffordable as these numbers are they do not include the past 2 years of lower than assumed investment earnings. In addition, this debt is interest bearing because it is money that is not in the system earning investment returns. And since there is no money available to pay down the debt (if required to be paid right away it would bankrupt most municipalities) it will be paid back over the next 20 to 30 years at 7.5% interest which will double or triple the actual cost to taxpayers and move hundreds of billions of dollars from taxpayer services to pension costs.
The Little Hoover Commission Report Cited
The court in their ruling also cited the 2011 Little Hoover Commission report which advised the Governor and the Legislature that California’s pension plans are dangerously underfunded, the result of overly generous benefit promises, wishful thinking and an unwillingness to plan prudently and stated unless aggressive reforms are implemented now, the problem will get far worse, forcing counties and cities to severely reduce services and lay off employees to meet pension obligations.
The Commission urged a number of structural changes that realign pension costs and expectations of employees, employers and taxpayers. The situation was described as “dire,” “unmanageable,” a “crisis” that “will take a generation to untangle,” and “a harsh reality” that could no longer be ignored.
According to the Commission the money coming into the pension funds is nowhere near enough to keep up with the money that will need to go out and stated that the state must “exercise its authority—and establish the legal authority—to reset overly generous and unsustainable pension formulas for both current and future workers.”
To provide immediate savings of the scope needed the Commission stated “state and local governments must have the flexibility to alter future, unearned retirement benefits for current workers.”
One feature of the system that drew the Commission’s critical attention was “pension spiking,” which the Commission defined as the practice of increasing an employee’s retirement allowance by increasing final compensation or including various non-salary items (such as unused vacation pay) in the final compensation figure used in the employee’s retirement benefit calculations, and which has not been considered in prefunding of the benefits. The commission found the practice had become “widespread throughout local government,” and had generated “public outrage that cannot continue to be ignored and pensions must be based only on actual base salary, not padded with other pay for clothing, equipment or vehicle use, or enhanced by adding service credit for unused sick time vacation time or other leave time.
Reaction to MCERA’s change in policy was almost immediate. On January 18, 2013, less than three weeks after the Pension Reform Act took effect, five recognized employee organizations and four individuals commenced a legal action against their retirement association MCERA. Plaintiffs alleged that on December 18, 2012: The MCERA board voted to implement AB 197 effective January 1, 2013 and announced a new policy for the calculation of retirement benefits.
Under the new policy, MCERA would begin excluding standby pay, administrative response pay, callback pay, cash payments for waiving health insurance, and other pay items from the calculation of members’ final compensation for all compensation earned after January 1, 2013.
Plaintiffs prayed for declaratory and injunctive relief that AB 197 and MCERA’s “actions are unconstitutional impairments of vested rights and therefore unenforceable.”
The State of California was granted leave to intervene, as expressly directed by the governor, in order that it could defend the constitutionality of AB 197.
THE PLANTIFFS ARGUEMENTS
The crux of this appeal is whether MCERA may eliminate benefits previously treated as compensation earnable from the calculation of the pension formula for what plaintiff’s term “legacy members”—employees who were hired prior to January 1, 2013.
The second ground for reversal advanced by plaintiffs is that MCERA did not follow the correct procedural requirements of AB 197 for excluding payments made to ‘enhance a member’s retirement benefit.
The court ruled that Section 31542 of the County Employee Retirement Law (CERL) is clearly intended to serve as the mechanism for calculating the pension of an employee about to retire and there is nothing to indicate the statute was intended to govern the situation here—a shift in policy by the retirement board in compliance with a new command from the Legislature, clearly intended to be applied in the future to plaintiffs’ so-called employees when they put in for retirement.
Plaintiffs’ essential position is clearly set out in their opening brief: Public employees earn a vested right to their pension benefits immediately upon acceptance of employment and such benefits cannot be reduced without a comparable advantage being provided.
A corollary of this approach was the employee’s argument that they are entitled to any increase in benefits conferred during their employment, beyond the pension benefit in place when they began and since they are performing work under the improved pension system, the terms of that system become an integral part of their compensation, and therefore immediately become vested in the improved benefit.
Plaintiffs candidly admitted in practice, this means that for existing employees, any changes must generally be neutral with regard to the overall benefit provided and cannot represent a net decrease in the pension benefit. Less ambiguously, they assert neither MCERA nor the Legislature can now curtail those benefits.
Plaintiffs insist that if their position was not vindicated on this appeal, California will have returned to the view that public employee pensions are mere ‘gratuities’ to be granted or taken away at the whim of the employer.
But the Appellate Court provided a review of principles governing public employee pensions that showed that much of plaintiffs’ reasoning is not controversial, but their ultimate conclusion cannot be sustained.
THE APPELLATE COURTS RESPONSE
Some General Law of Pensions States are prohibited by the United States Constitution from passing a law “impairing the obligation of contracts.” (U.S. Const., art. I, § 10.) Article I, section 9 of the California Constitution states a parallel proscription: “A law impairing the obligation of contracts may not be passed.” Public employment gives rise to certain obligations which are protected by the contract clause of the Constitution, including the right to the payment of salary which has been earned. The court ruled that “Earned” in this context obviously means in exchange for services ALREADY performed. In accordance with this view, a pension is treated as a form of deferred salary that the employee earns prior to it being paid following retirement.
The court concluded that an employee does NOT earn the right to a full pension until he has completed the prescribed period of service and although vested prior to the time when the obligation to pay matures, pension rights are not immutable. For example, the government entity providing the pension may make reasonable modifications and changes in the pension system. This flexibility is necessary to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system and carry out its beneficent policy.
REVIEW OF PREVIOUS SUPREME COURT RULINGS
The Supreme Court stated in the Kern v City of Long Beach case (supra, 29 Cal.2d 848, 854.) “the rule permitting modification of pensions is a necessary one since pension systems must be kept flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system and carry out its beneficent policy.” Thus the Appellate Court ruled it appears that an employee may acquire a vested contractual right to a pension, but that this right is not rigidly fixed by the specific terms of the legislation in effect during any particular period in which he serves. The statutory language is subject to the implied qualification that the governing body may make modifications and changes in the system and that the employee does not have a right to any fixed or definite benefits, but only to a ‘substantial’ or ‘reasonable’ pension. There is no inconsistency therefore in holding that he has a vested right to a pension, but that the amount, terms and conditions of the benefits may be altered.”
The Appellate Court also cited Casserly v. City of Oakland (1936) 6 Cal.2d 64 as one of the authorities for the proposition that “it has also been held that a pension could be reduced prior to retirement from two-thirds to one-half of the employee’s salary, and modifications have been approved in some cases when made after the happening of the contingencies upon which the payments were to commence.”
The “Must” versus “Should” Debate
With respect to active employees in the Allen v Board of Administration case the Supreme Court held that any modification of vested pension rights must be reasonable, must bear a material relation to the theory and successful operation of a pension system, and, when resulting in disadvantage to employees, must be accompanied by comparable new advantages.
However, the First District Appellate Court stated they did not believe the word “must” was intended to be given the literal and inflexible meaning attributed to it by plaintiffs. The Supreme Court in the 1983 Allen opinion cited three decisions as support for the quoted proposition. The two Supreme Court decisions cited employed the word “should” be accompanied by comparable new advantages; Abbott v. City of Los Angeles, supra 50 Cal.2d 438, 449. It is only a 1969 Court of Appeal decision, which cites the same two Supreme Court decisions that use “must.”
The Appellate Court stated “only the least authoritative of the three sources cited supports the word ‘must,’ while the two Supreme Court decisions employ ‘should.’ Second, barely a month later, the Supreme Court—speaking though the same justice—filed another decision which used the ‘should’ formulation from the 1955 Allen decision as quoted in Abbott.”
The Court went on to say “there is nothing in the opinion linking the reduction to provision of some new compensating benefit. If the court intended ‘must’ to have a literal meaning, the retirees would have won. They lost. In light of the foregoing, the Appellate Court could not conclude that Allen v. Board of Administration in 1983 was meant to introduce an inflexible hardening of the traditional formula for public employee pension modification.”
A New Benefit WAS Provided
The court also determined there was a new benefit provided because MCERA’s change in policy resulted in each of those employees’ paychecks no longer being reduced by deductions to cover those sums in funding the employee’s retirement. Put simply, the new benefit is an increase in the employee’s net monthly compensation. Put even more simply, it is more cash in hand every month.
APPELLATE COURT’S CLARIFICATION OF THE “CONTRACTS CLAUSE” OR “CALIFORNIA RULE”
Plaintiffs’ initial premise, and the centerpiece of their oral argument, is that the moment each individual plaintiff commenced working for a public agency in Marin County, that person acceded to a “vested right” to a pension. To a large extent, that premise is correct. As already established by Miller, the “right” to a pension “vests” when the first portion of wages or salary already earned is deferred by being withheld for a future pension. But to call a pension right “vested” is to state a truism. As one Court of Appeal sensibly noted, “ALL pension rights are vested” in the sense they cannot be destroyed. However, until retirement, an employee’s entitlement to a pension is subject to change short of actual destruction.
That same Court of Appeal characterized that entitlement as only “a limited vested right” and not every change in a retirement law constitutes an impairment of the obligations of contracts. Nor does every impairment run afoul of the contract clause. The United States Supreme Court has observed, although the Contract Clause appears literally to proscribe any impairment, the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula. Thus, a finding that there has been a technical impairment is merely a preliminary step in resolving the more difficult question, whether that impairment is permitted under the Constitution.
Courts Must Determine What is a Reasonable Change
Modifications to pension benefits the court stated must be reasonable, and it is for the courts to determine upon the facts of each case what constitutes a permissible change. To be sustained as reasonable, alterations of employees’ pension rights must bear some material relation to the theory of a pension system and its successful operation, and changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages.
Past court rulings have found that “Reasonable” modifications for future benefits eared can encompass reductions in promised benefits. These include:
- A change of retirement age
- A reduction of maximum possible pension
- The repeal of cost of living adjustments
- A reduction of the pension cap
- Changes in the number of years of service required to qualify for a pension
- A reasonable increase in the employee’s contributions
- A reasonable change in what is considered pensionable compensation
The Court’s ruling stated “thus, short of actual abolition, a radical reduction of benefits, or a fiscally justifiable increase in employee contributions is allowed before the pension becomes payable and that until that time the employee does not have a right to any fixed or definite benefits but only to a substantial or reasonable pension.”
THE COURT’S CONCLUSIONS
The Appellate Court stated that it is without dispute that (1) up to January 1, 2013, there was a contract between MCERA and certain public employees concerning how those employees would be compensated, and (2) that after January 1, 2013, under compulsion of the Pension Reform Act, the agreement was unilaterally altered by MCERA to reduce the scope of compensation that had been accounted as “compensation earnable.” The issue here is whether the amendment of section 31461—of CERL, the only part of AB 197 challenged by plaintiffs and addressed here—qualifies as an “unreasonable” change, a “substantial” impairment, and thus a violation of the state and federal constitutions. We conclude the dual answer is NO: MCERA’s implementation of the amended version of section 31461 does not qualify as a substantial impairment of plaintiffs’ contracts of employment with its right to a “reasonable” and “substantial” pension. Thus there is no violation of the state and federal constitutions.
The Ventura Decision and Changing Pensionable Compensation Post PEPRA
The Supreme Court’s Ventura Decision in 1997 added items to what was considered pensionable pay for counties makes clear that before the Pension Reform Act that compensation paid in cash and which was not overtime was required to be included as compensation earnable. And while it is true that the retirement boards have some discretion to interpret and apply CERL—this discretion is limited by the contours of the statute and the constitution, including the Contracts Clause.
However, the Appellate Court stated that the “Supreme Court’s discussion of compensation earnable in Ventura County would appear to have little, if any, relevance to the scope and meaning of the subsequently amended language of section 31461 we are considering here. The utility of Ventura County is also weakened because none of the words ‘constitution,’ ‘contract,’ or ‘impair’ were used in the opinion, so it is no authority for an unchanging constitutional dimension to a statute as substantially amended as was section 31461. The permanence plaintiffs attribute to MCERA’s exercise of discretion in allowing certain payments to be included in compensation earnable is troubling because it seems to deny MCERA the discretion to change that decision.”
They also stated that “Plaintiffs’ insistence on retaining their claimed ‘vested rights’ measured by the former version of section 31461 and Ventura County has hindered their appreciation of how that right is only to a ‘reasonable’ pension, that the public employee does not have a right to any fixed or definite benefits that may be fixed by the specific terms of the legislation during any particular period.”
“The qualification is a necessary one since pension systems must be kept flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system. Restricting their unyielding focus to only their “vested rights” has led plaintiffs to pay insufficient attention to the ever-present possibility of legislative involvement, one of the essential attributes of sovereign power that is always to be consulted.”
The Appellate Court thus ruled that an employee does not have a right to any fixed or definite benefits, which can mean that any one or more of the various benefits may be wholly eliminated prior to the time they become payable, so long as the employee retains the right to a substantial pension.
They went on to say that “plaintiffs have failed to make out a clear case, free from all reasonable ambiguity and reasonable doubt, that they are the victims of a constitutional violation. Put another way, after January 1, 2013, payment of any of the items specified in section 31461, subdivision (b), could not be deemed salary already earned pursuant to a contract that enjoyed constitutional protection.”
Pension Changes Must Be Prospective
The Appellate Court emphasized the limited nature of their holding stating “the Legislature’s change to the definition of compensation earnable was expressly made purely prospective by the Pension Reform Act and MCERA’s responsive implementation was also explicitly made prospective only and nothing altered the status of compensation or payments accrued prior to January 1, 2013.”
THE BOTTOM LINE
The Appellate Court ruled that as long as they are prospective and reasonable and do not destroy the pension system, the pension changes that can be considered and implemented by governmental agencies may include:
Increasing the minimum retirement age,
Increasing the number of years of service required to qualify for a pension,
Reducing the pension cap as a percentage of salary,
Eliminating retiree cost of living adjustments (COLA),
increasing employee contributions,
Lowering the maximum pension dollar amount; and
Changing what is considered pensionable pay.
* * *
About the author: Ken Churchill is the author of numerous studies on the pension crisis in California and is also the Director of New Sonoma, a pension reform group.
Construction trade unions in California are likely to be celebrating on November 3, 2015 as voters approve another set of local school bond measures and launch another round of taxing, borrowing, and spending.
Eight school districts in California are asking voters to approve a total of nine bond measures for school facilities construction on the November ballot. These proposals would authorize school districts to borrow money for facilities construction by selling bonds to investors. It would not be unreasonable to predict that voters will approve all nine bond measures.
Two of the nine bond measures are on the ballot for voters in and around the City of San Rafael, in Marin County. San Rafael City Schools is asking permission from voters to borrow $108 for the elementary school district and $161 for the high school district, for a total of $269 million. The district is assuming future enrollment growth and projecting continued increases in assessed property valuation. It has current debt service of $177 million in outstanding principal and interest accumulated from previous bond measures.
Pay-to-Play and Other Entanglements
Firms that won district contracts related to preparing the bond measure are involved in the campaign. In a typical example of so-called “pay-to-play” contracts for bond measures, a financial advisory firm obtained a no-bid contract from the district in June for $15,000 in pre-election and $65,000 in post-election bond advisory services. It has contributed $9500 to the campaign. A consulting firm that won a contract from the district to perform a “Bond Feasibility Survey” for the bond measures – and found the bond measures to be feasible – has earned $13,507 from the campaign. Another firm involved in the feasibility survey has contributed to the campaign. In addition, a public relations consultant who was involved with the feasibility survey is working for the campaign and has received $7,500 so far (see below).
Construction Trade Unions Have Dominated the Campaign to Pass the Bond Measure
Construction unions have directly contributed $31,000 of the $90,950 in reported contributions through October 26, 2015 to the campaign to pass Measures A and B. That is 34% of the total. (See the chart at the end of this article.) Unions had contributed $20,000 of the first $30,000 raised by the campaign, thus supplying valuable seed money for operations.
A Carpenters Union hall is the site of the campaign phone bank. Services from the Northern California Carpenters Regional Council to the campaign are reported through October 17, 2015 as an in-kind contribution of $10,034.
A public relations consultant who used to be the Director of Public and Governmental Relations for the Northern California Carpenters Regional Council has been paid $7500 through October 17, 2015 for campaign-related work. This consultant was also involved in the feasibility study.
There Is No Organized Opposition
No one submitted an argument in opposition to the bond measures, so the Official Voter Guide only includes arguments in support. No one has filed papers with the California Fair Political Practices Commission or the County of Marin to establish an opposition campaign fund. The Marin United Taxpayers Association appears to be dormant on this issue. However, at least a handful of individual informed citizens are vehemently opposed to the bond measures, as shown in posted comments in response to Marin Independent-Journal newspaper articles and an editorial endorsing the bond measures.
The Likely Outcome
Deprived of an opposing perspective, voters in this area of Marin County will likely approve both bond measures at a percentage well above the 55% needed for passage. Then, because of the extensive involvement of construction trade unions in the campaign, the school board will likely vote soon after the election to require construction companies to sign a Project Labor Agreement with unions as a condition of performing under a contract funded by the bond measures. That union monopoly on construction may cost taxpayers an extra $25-40 million, but with $269 million authorized to borrow and pay back over the next 30-40 years, who’s worried about it today?
Source of Contribution Information: Form 460s and Form 497s for Committee For Strong San Rafael Schools – Yes on A&B
Kevin Dayton is the President & CEO of Labor Issues Solutions, LLC, and is the author of frequent postings about generally unreported California state and local policy issues at www.laborissuessolutions.com. Follow him on Twitter at @DaytonPubPolicy.