Groundbreaking Ruling on Public Sector Pension Plans by Detroit Bankruptcy Judge Could Lead to Other States and Municipalities Cutting Retirees’ Pensions, Freezing Existing Pension Plans, and Shifting Workers into New Plans
February 25, 2015
New York Times - First
in Detroit, then in Stockton, Calif., and now in New Jersey, judges and
other top officials are challenging the widespread belief that public
pensions are untouchable.
Gov. Chris Christie
of New Jersey delivered the latest blow on Tuesday, when he proposed to
freeze that state’s public pension plans and move workers into new ones
intended not to overwhelm future budgets or impose open-ended demands
on taxpayers.
The
first crack came in Detroit, where a judge ruled that public pensions
could, in fact, be reduced, at least in bankruptcy. Then, just a few
weeks ago, an opinion by the bankruptcy judge for Stockton, which
emerged from Chapter 9 on Wednesday, called California’s mighty public
pension system, Calpers, a bully for insisting in court that pension cuts were wholly out of the question.
Such
dogma “encourages dysfunctional strategies,” wrote the judge,
Christopher Klein,
chief judge of the United States Bankruptcy Court for
the Eastern District of California. He said Calpers’s
legal arguments were invalid, and he concluded that it lacked standing
to dominate the courtroom discussion the way it had.
Stockton did not
even seek permission to freeze its pension plans, but the judge
nevertheless wrote that it was entitled to do so and went on to cite
steps that struggling cities in general should take to trim their
pension costs legally.
For starters, he recommended negotiating with their unions.
It
may be sheer coincidence, but New Jersey seems have taken Judge Klein’s
instructions to heart, even though states cannot file for bankruptcy
and thus lack that particular leverage. For months, a pension commission
formed by Governor Christie has been working quietly with the New
Jersey Education Association, normally one of the state’s most litigious
pension adversaries. By talking to each other instead of battling in
court again, the two groups managed to find enough common ground to
issue what they called a “road map” toward solving New Jersey’s daunting
pension problems.
Many
details remain in flux, and the union took pains on Tuesday to say it
was not endorsing Mr. Christie’s full proposal and might never do so.
But the road map identifies certain issues that are so important to New
Jersey’s teachers that the union is willing to consider a pension freeze
if that is what it takes to fully protect its members from the state’s
looming pension collapse.
To
appreciate how unusual it is for a state to propose a pension freeze,
it helps to understand the “vested rights doctrine,” the legal argument
that public pension plans cannot be frozen or reduced. Most states
uphold some form of this doctrine, though in some it is a matter of
statute, in others it is enshrined in the constitution and in still
others it stems from court precedent. Often, the provisions have been in
place for decades and attracted little notice until recently, when baby
boomers began to retire in large numbers, placing unexpected pressure
on public pension funds and the state and local budgets that support
them.
People
have sometimes suggested freezing public pension plans to keep the hole
from getting deeper. But officials usually say that is impossible, and
few want to mount a costly test of the doctrine, especially because the
judges who would decide such a case usually participate in public
pension systems themselves.
Companies,
by contrast, can legally freeze their pension plans and have been doing
so for years. Since 1974, companies with pension plans have been
governed by a single federal law, the Employee Retirement Income
Security Act, or Erisa, which details how freezes must take place to
pass legal muster. One basic requirement is that workers midway through
their careers are entitled to keep whatever portion of a pension they
managed to earn until the date of the freeze.
The
states have long argued that because they are legal sovereigns, federal
pension law does not apply to them. When states, cities and other local
governments try to rein in pension costs, they often create new “tiers”
of much smaller benefits for workers they expect to hire in the future,
and call it a reform. But there is no freeze for existing workers, who
keep accruing the same benefits as before.
In
some places, it is increasingly clear that reducing benefits only for
future hires does not save enough money to preserve overstretched
pension plans, especially in places where retirees outnumber current
workers.
The
clearest solution is to curb benefit accruals, but that runs directly
into the vested rights doctrine. Seeing no other way out, officials
often resort to issuing bonds to obtain cash for their pension funds, a
risky strategy that has failed in Detroit, Stockton and other places.
Detroit
issued such debt in 2005, responding to what seemed a particularly
strong rule against tampering with public pension plans: an explicit
constitutional provision to that effect.
But
Detroit’s bankruptcy judge, Steven W. Rhodes, ruled that the state
constitutional protection was not in force while the city sought a fresh
start under Chapter 9 of the bankruptcy code. In addition to cutting
part of the retirees’ pensions, Detroit froze its existing pension plan
and shifted its workers into a new plan that is supposed to have limited
ability to tap taxpayers for any investment losses.
Judge
Rhodes’s ruling was groundbreaking and so unnerved Calpers over 2,000
miles away that it immediately issued a statement that it had no bearing
in California. Unlike Detroit, which operated its own pension fund,
many cities and other local governments in California participate in big
pooled pension systems, the largest of which is Calpers. Once they
join, Calpers makes it extremely difficult to withdraw, demanding a huge
termination payment. It also claims to have an enforceable lien it
would use to seize the assets of any city that tried to leave without
paying.
In
his legal analysis in the Stockton case, Judge Klein dissected
Calpers’s lien and found that it was flawed and unenforceable in any
municipal bankruptcy.
“The bully may have an iron fist, but it also turns out to have a glass jaw,” he wrote.
His
opinion seems likely to play a role in other fiscal hot spots. Already,
two creditors have referred to it in the continuing bankruptcy case of
San Bernardino, Calif. The creditors, a European bank known as E.E.P.K.
and the bond insurer Ambac Assurance, are arguing that the city is
playing favorites, something not allowed in bankruptcy, where sacrifices
are supposed to be roughly equal. Specifically, San Bernardino has been
paying its bills to Calpers while leaving E.E.P.K. and Ambac in the
lurch.
And
while bankruptcy is limited to cities, the ruling may also inform a
pension battle in Illinois, where in November a county judge found that a
state-led effort to restructure its ailing pension system was illegal
because of a constitutional provision that says: “Membership in any
pension or retirement system of the state” or its instrumentalities
“shall be an enforceable contractual relationship, the benefits of which
shall not be diminished or impaired.”
The
state’s attorney general, Lisa Madigan, is appealing that decision,
arguing in essence that public pensions can in fact be reduced in
Illinois, despite what the constitution says, if that is what it takes
“to protect the general public welfare.”
“This
is one of those things where there’s a learning curve,” said Karol K.
Denniston, a bankruptcy lawyer with Squire Patton Boggs in San Francisco
who represented a local taxpayer group in Stockton’s case. “People will
try things that don’t work quite right at first, then build on them.
We’ve added to the municipalities’ tool kit.”
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