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Employment & Labor Law for Public Safety Agencies
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An association of retired police and firefights obtained a court order that a city’s master police officer-terrorism pay (MPO pay) be included in the calculation of police pension benefits. Under the retirement system, a retiree’s pension is calculated based a fixed percentage of the compensation currently “attached to the average rank” achieved by the retiree at the time of retirement. An intermediate California appeals court overturned the ruling, finding that the trial judge erroneously concluded that MPO pay was “compensation attached to . . . rank” as required by the city charter for inclusion in pension benefits. During the years 2009-2015, MPO pay was paid to all officers who had completed 20 years of service in the Department, maintained fully effective overall performance appraisals during the assignment, attended and completed an approved anti-terrorism/law enforcement response course, and been assigned to the patrol division. The requirement that an officer be assigned to the patrol division to receive MPO pay compelled the conclusion that MPO pay was not attached to the officer’s rank in any way. The agreement that added MPO pay did not restructure the relevant ranks nor create an additional step within an existing rank. Retired Oakland Police Officers Association v. Oakland Police and Fire Retirement System, #A148987, 33 Cal. App. 5th 158, 244 Cal. Rptr. 3d 785, 2019 Cal. App. Lexis 231, 2019 WL 1275346. A doctor was employed reviewing claims for disability benefits for the California Department of Social Services, where he worked. The California Public Employees’ Retirement System (CalPERS) determined that the compensation he received as part of a bonus program would not be considered when calculating his future pension benefit. He appealed a ruling rejecting his challenge to that determination. The trial court concluded that the bonuses earned were for performing additional services outside his regular duties, and therefore not appropriate for consideration when calculating his pension benefit. An intermediate state appeals court ruled that this determination was supported by substantial evidence, and there was no reversible error. Paxton v. Bd. Of Admin., CalPERS, #C086204, 2019 Cal. App. Unpub. Lexis 2811, 2019 WL 1771962. The California Public Employment Relations Board (PERB) found that the City of San Diego violated a California statute, the Meyers-Milias-Brown Act, when the mayor made a policy decision to advance a citizens’ pension reform initiative to amend the city charter without meeting and conferring with the affected employees’ unions. The California Supreme Court upheld the finding that the mayor’s actions violated the city’s meet and confer obligations, and then ordered an intermediate state appeals court to “address the appropriate judicial remedy for the violation.” The appeals court rejected the unions’ request to invalidate the Initiative as a judicial remedy, concluding that the Initiative’s validity was more appropriately addressed in a separate “quo warranto” proceeding available under Calif. Code Civ. Proc., §§ 803-811. [“Quo warranto” is a legal action requiring a person or entity to show what authority they have for exercising some right, power, or franchise they claim to hold]. Additionally, the appeals court concluded it needed to modify the PERB's compensatory and cease-and-desist remedies to prevent the remedies from impermissibly encroaching upon constitutional law, statutory law, and policy matters involving initiatives, elections, and the doctrine of preemption unrelated to the Act. Boling v. Public Employment Relations Bd., #D069626A, 33 Cal. App. 5th 376, 2019 Cal. App. Lexis 242. The Texas Supreme Court held that the Dallas Police and Fire Pension System did not violate Tex. Const. art. XVI, 66 by amending its pension plan to reduce the interest rate paid on Deferred Retirement Option Plan (DROP) accounts. The plaintiff plan participants had elected DROP before the amendment in this case and argued that the change in interest rate reduced or impaired their service retirement benefits granted or accrued in violation of section 66. The pension plan amendments did not violate section 66 because the DROP account interest rate change was only prospective and will not impact funds deposited before the amendments became effective. Eddington v. Dallas Police & Fire Pension System, #17-0058, 2019 Tex. Lexis 243, 60 Tex. Sup. Ct. J. 560. A complaint filed by unions representing the firefighters and police officers employed by a city claimed that legislation modifying various state-run pension plans for government employees, including a plan that covered municipal firefighters and police officers, unconstitutionally repudiated contractual obligations owed to the employees. A federal appeals court ruled that the lawsuit was properly dismissed. It found that the unions failed to allege that the legislation at issue unconstitutionally impaired any contractual rights of the union members. Further, the federal court was not the proper place to litigate the unions’ claims that the city was failing to abide by the terms of its ordinances or collective bargaining agreements, which were state law issues. The absence of any claim that the current benefits provided by the state fell below the present value of the contributions made by the pensioners, together with the absence of the alleged contract, eliminated any basis for a claim under the Takings Clause of the U.S. Constitution, and the use of legislation that was not otherwise constitutionally infirm to reduce a non-mandatory benefit did not violate due process. Cranston Firefighters, IAFF v. Raimondo, #17-1293, 2018 U.S. App. Lexis 1472 (1st Cir.). |
While both bonus pay and longevity pay separately were expressly listed in a California state statute as items of “special compensation” to be included in a calculation of retirement benefits by the California Public Employees Retirement System, a combination of bonus pay and longevity pay received together had not been expressly determined to be special compensation. Therefore, a longevity performance stipend paid to a county’s deputy sheriffs that combined bonus pay and longevity pay did not count as “special compensation” as the list was exclusive. The payments were therefore not used to calculate retirement benefits. DiCarlo v. County of Monterey, #H041400,12 Cal. App. 5th 468, 218 Cal. Rptr. 3d 829, 2017 Cal. App. Lexis 513.
Current and former federal employees assigned to work in non-foreign areas
outside of the contiguous U.S. received, in addition to their normal salaries
certain cost-of-living allowances (COLAs). They sued, complaining that
regulations excluded those COLAs from the formula used to calculate their
retirement and other employee benefits. They claimed that this exclusion was
discriminatory under Title VII, as well as arbitrary, capricious, and contrary
to legal requirements under the Administrative Procedure Act. Upholding the
dismissal of the lawsuit, a federal appeals court found that the trial court
was correct in concluding that the disparate impact argument raised by the
plaintiffs was foreclosed by the location-based safe harbor provision of 24
U.S.C. 2000e-2(h). Further, they did not properly exhaust their administrative
remedies on their disparate treatment claims. Other, non-discrimination, claims
were barred by the Civil Service Reform Act. Rodriguez v. United
States, #15-2178, 2017 U.S. App. Lexis 5235, 129 Fair Empl. Prac. Cas. (BNA)
1857, 41 I.E.R. Cas. (BNA) 1706 (1st Cir.).
Prior to 2013, the surviving
spouse of a member of the Chattanooga Fire and Police Pension Fund could
receive benefits after the member died without incurring a proportional
reduction in the member’s lifetime benefits. In 2012, the city removed this
“default death benefit” for members not eligible to retire as of January 1,
2013. A former police chief was not eligible to retire on that date and opted
for a five-percent reduction in current, lifetime benefits so that his wife
could receive an additional benefit upon his death. He then sued, asserting
claims that the change violated the Contract Clause of the U.S. Constitution,
constitutional due process, the Takings Clause of the U.S. Constitution, and
the Law of the Land Clause of the Tennessee state Constitution. He also
asserted that the 2013 amendment was not enacted in a valid manner under local
law. A federal appeals court upheld the rejection of all of these claims. The
plaintiff did not have either a contract or property right to the default death
benefit. His other claims were also meritless. Dodd
v. City of Chattanooga, #16-5470, 846 F.3d 180 (6th
Cir. 2017).
Back in 1980, a city
added a cost-of-living adjustment (COLA) to its Fire and Police Pension Fund.
In 2014, after having previously created a fixed annual 3% increase in
retirement benefits, the city amended the COLA to a lower, variable annual
increase. Participants in the fund challenged this change, claiming that it was
a violation of the Contract Clause of the U.S. Constitution, depriving them of
the expected higher COLA. Upholding the dismissal of this claim, a federal
appeals court ruled that there was no unmistakable evidence of the city’s
intent to be bound to the fixed COLA, because the COLA was neither vested nor
accrued within the meaning of the City Code. In the absence of some clear
indication that the legislature intends to bind itself contractually, a statute
does not create a contractual relationship. The fact that the Fund described
the fixed three-percent COLA as “guaranteed” when enacting a 2000 amendment did
not prove that the city intended to be bound to the fixed COLA. Frazier v. City
of Chattanooga, #15-6405, 841 F.3d 433 (6th Cir. 2016).
A provision of the
Illinois state Constitution provides that "Membership in any pension or
retirement system of the State, any unit of local government or school
district, or any agency or instrumentality thereof, shall be an enforceable
contractual relationship, the benefits of which shall not be diminished or
impaired." The state legislature passed a law reducing certain pension
benefits provided by four City of Chicago employee pension plans, based on the
fact that contributions from employees and the city were inadequate to provide
the promised benefits. The Illinois Supreme Court declared that law
unconstitutional and unenforceable in violation of the state constitutional
pension provision. Jones v. Mun. Employees' Annuity & Benefit Fund,
#119618, 2016 IL 119618, 2016 Ill. Lexis 276.
Former police officers and firefighters who had
been employed by local public agencies contended that the California Public
Employees' Retirement System should be paying them additional enhanced
retirement benefits under the Public Employees' Retirement Law, Gov. Code
section 2000 et seq., based on either additional retirement service credit they
had purchased or military service credit. They were denied the extra benefits
because they received disability retirement benefits before age 50. An
intermediate California appeals court rejected most of their claims, finding
that neither the statute nor their contracts entitled them to the additional
retirement benefits they sought. The court also rejected constitutional claims
for violation of due process or equal protection. But the court allowed claims
to go forward for rescission and breach of fiduciary duty, based on the
plaintiffs' assertion that the defendant retirement system improperly failed to
disclose the potential loss of the value of purchased service credit if
plaintiffs suffered disability, Marzec v. CalPERS, #B246667, 236 Cal. App. 4th
889, 2015 Cal. App. Lexis 393.
A former employee of a Sheriff's Department was
entitled to receive a disability pension of half his prior salary. Based on his
34 years of service, he was receiving an additional amount increasing his
pension to the amount he would have received as a service pension. The IRS
rejected his argument that the entire amount of his retirement allowance should
be regarded as excluded from taxation because it was a workers' compensation
program. The Tax Court and a federal appeals court held that the additional
amount of his retirement allowance exceeding what he would have received based
solely on his disability was taxable. The additional amounts were not paid on
the basis of his injuries, but solely on the basis of his years of service, and
therefore were taxable. Sewards v. CIR, #12-72985, , 2015 U.S. App. Lexis 7821
(9th Cir.).
The state of Illinois has five separate
state-funded retirement systems for various public employees, all providing
traditional defined benefit plans that were covered by a pension protection
clause in the state constitution. The state legislature enacted amendments to
the state pension code that lowered the amount of retirement annuity benefits
for persons who first became members of four of those retirement systems before
January 1, 2011. The Illinois Supreme Court upheld a ruling that the amendments
violated the pension protection clause of the Illinois Constitution and
therefore should be permanently enjoined. The court commented that it
recognized the financial difficulties which state government had recently been
facing but that those difficulties did not alter preexisting pension
obligations. In re Pension Reform Litig., #118585, 2015 IL 118585, 2015 Ill.
Lexis 499.
A number of retired D.C. Metropolitan police
officers were later rehired by the D. C. Protective Services Division, an
agency charged with protecting D.C. owned property and government buildings.
They received salaries for their new jobs and pension benefits from their
former jobs. A provision of the D.C. statutes, however, aimed at preventing
so-called "double dipping," required that their current salaries be
reduced by the amount of their pensions. A federal appeals court upheld a
ruling that the salary reductions did not violate the Public Salary Tax Act of
939, 4 U.S.C. 111(a), a statute that only permitted states or D.C. to
"tax" compensation paid to federal employees if that tax did not
discriminate against federal employees. The court ruled that the salary
reduction provision was not a "tax" but instead reduced D.C.'s total
expenditure on salaries. The amount of the reduction was not collected through
normal taxation mechanisms and did not raise revenue, but only lower expenditures.
Cannon v. Dist. of Columbia, #14-7014, 2015 U.S. App. Lexis 6320 (D.C. Cir.).
Two county employees sought a mandamus order
requiring the county employees' retirement association to allow them to buy
retirement service credit for military service as midshipmen at the U.S. Navy
Academy. The state intermediate appeals court ordered the order issued. It
ruled that the terms "public service" and "military
service" in the county's employee retirement law included such service at
the Academy, and that the employees were entitled under state law to purchase
such retirement service credits. Lanquist v. Ventura County Employees'
Retirement Association, #B251179, 2015 Cal. App. Lexis 239.
San Francisco city and county voters passed a
ballot initiative under which the payment of supplemental cost of living
allowance (COLA) to retired city and county employees on the retirement fund
being fully funded based on the market value of the assets for the prior year.
A political action committee representing the retired city employees' interests
sought to invalidate that initiative as an illegal impairment of vested
contractual rights in violation of the U.S. and California Constitution's
contract clauses. An intermediate state appeals court ruled that the full funding
requirement could not be enforced as to current city employees and those who
retired after the supplemental cost of living allowance went into effect in
November, 1996 pursuant to an earlier initiative. However, city employees who
retired before that date had no vested contractual rights to the supplemental
COLA payments, so the initiative could be applied to their pensions. Protect
Our Benefits v. City and County of San Francisco, #A140095, 2015 Cal. App.
Lexis 269.
A Wisconsin county paid pensions to its retired
employees that were calculated by multiplying their final salary by a
percentage known as a multiplier and then multiplying the result by the
employee's years of service. An ordinance passed in 2011 reduced the multiplier
to 1.6 percent from 2 percent for all county service performed on or after its
effective date. A county employee and her union claimed that this was a breach
of contract because she had a vested right to have the higher multiplier
applied to her post-2011 service, and that she did not consent to the
reduction. The Wisconsin Supreme Court rejected these arguments, because the
amended ordinance only applied to future service credits not yet earned, and
any benefits already accrued were protected and not diminished. Suzanne Stoker
v. Milwaukee County, #2012AP2466, 2014 WI 130, 2014 Wisc. Lexis 950.
Public employees in South Carolina
challenged the constitutionality of a law amending state retirement laws by
mandating that public employees who retire and then return to work have to make
the same pension fund contributions as other employees, but without receiving
increased pension benefits. A federal appeals court rejected the plaintiffs'
argument that claims they made under the Takings Clause of the Fifth Amendment
were exempt from the protection of Eleventh Amendment immunity. The state's
pension plan and the retirement system trust were arms of the state entitled to
sovereign immunity as were state officials sued in their official capacities
for repayment of the additional pension plan contributions. The state officials
who were sued in their official capacities for injunctive relief concerning the
pension plan contributions were also entitled to sovereign immunity since their
duties had no relation to the collection of the contributions. Hutto v. SC
Retirement System, #13-1523, 2014 U.S. App. Lexis 22931 (4th Cir.).
A class of city firefighters challenged the
increase in their pension contribution from 6% to 8.5%, arguing that this
impaired the terms of their employment contracts in violation of the Contract
Clause of the U.S. Constitution and a provision of the Alabama state
Constitution. A federal appeals court rejected these claims. The city
essentially did nothing different from what a private employer did. It was free
to alter the contribution rate without "constitutional consequences."
Even if there was a contract provision not to raise the employee contribution
rate, that did not amount to a constitutional claim, but merely a breach of
contract. Taylor
v. City of Gadsden, #13-13885, 2014 U.S. App. Lexis 17740, 25 Fla. L. Weekly
Fed. C 432 (11th Cir.).
A federal appeals court rejected a claim by
active and retired city police and firefighters challenging a city's alteration
of the way in which annual pension benefit increases were calculated. They
argued that substituting a cost-of-living adjustment for a "variable
benefit" violated their rights under the Contract Clause of the U.S.
Constitution. A federal appeals court rejected this claim, holding that the plaintiffs'
contract rights were not "impaired" since they had a potential state
law remedy for breach of contract. The appeals court remanded a claim under the
Takings Clause of the Constitution, however, as the trial court had failed to
address the substance of that claim. Cherry, Jr. v. Mayor and City Council of
Baltimore City, #13-1007, 762 F.3d 366 (4th Cir. 2014).
A retired Chicago police officer who served as
the supervisor of the department's violent crimes unit was granted pension
benefits in 1997. A later federal civil rights lawsuit claimed that officers
under his command had engaged in torture and abuse of criminal suspects. He
denied, under oath, having any knowledge of, or participation in torturing or
abusing suspects in custody. He was later convicted of federal charges of
perjury and obstruction of justice for this testimony, and given a sentence of
four and a half years in prison. He was not indicted for conduct that occurred
while he was serving in the police department. He argued that his pension
benefits should continue, as a statute provided only that no benefits be paid
following a felony conviction for conduct relating to or arising out of or in
connection with his service as a policeman. His conviction, he asserted, was
solely for the giving of false testimony in a civil lawsuit filed years after
his retirement. The Illinois Supreme Court reversed a decision of an
intermediate appeals court ending his benefits, ruling that the issue of
whether to terminate such pension benefits was within the exclusive, original
jurisdiction of the Retirement Board of Policemen's Annuity and Benefit Fund of
Chicago, which had declined to do so. People ex rel. Madigan v. Burge, #115635,
2014 IL 115635, 2014 Ill. Lexis 846.
Members of the New York City police and fire
departments appointed on July 1, 2009 or after that date are classified as
"tier three" members of the applicable pension funds. Some tier three
employees challenged the city's deduction from their gross wages of three percent
as mandatory employee pension contributions, arguing that the deductions were
unlawful under a state statute requiring a public employer to pay an employee's
statutorily required pension contribution. The highest court in New York
rejected this argument, finding that the statute in question only covered
temporary programs that had been in place as of 1974 for tier one or tier two
public employee retirement system members. Lynch v. City of New York, #119,
2014 N.Y. Lexis 1489, 2014 NY Slip Op 4873.
An intermediate Illinois appeals court ruled that
the estate of a deceased former recipient of an Illinois Pension Code annuity
for firefighters could not bring a lawsuit against the Retirement Board of the
Fireman's Annuity & Benefit Fund of Chicago for the benefit of the estate's
heirs. Any right that the deceased former recipient of the annuity had to
receive a retroactive salary increase under the terms of a collective
bargaining agreement ended with her death. Hooker
v. Retirement Board of the Fireman's Annuity & Benefit Fund, 2014 IL App
(1st) 131568, 2014 Ill. App. Lexis 344.
A judgment in
favor of the plaintiff city in a lawsuit over how police and fire retirement
benefits were calculated was vacated. The city was precluded from relitigating
a previously decided issue concerning holiday premium pay being included in the
calculation. The city was also barred from trying to require retirees to repay
any retirement benefits because of the previous erroneous inclusion of shift
differential pay in the calculation as compensation attached to rank. The
city's retirement system board could, however, try to recoup benefits that were
improperly paid to retirees in three years because of the inclusion of an
inflated number of pensionable holidays for those years. City of Oakland v.
Oakland Police & Fire Retirement System, #A136769, 2014 Cal. App. Lexis
192.
When a retiree had worked both as a city employee
and as a member of the city council, the state public employees' retirement
system could calculate his benefits on a bifurcated basis, using his highest
employee salary and his highest salary as an elected official. Chaidez v. Board
of Administration of California Public Employees' Retirement System, #C065913,
223 Cal. App. 4th 858, 2014 Cal. App. Lexis 109.
A state employee retired from his job as an
investigator for the Secretary of State and a state employee retirement system
approved his pension amount. They later notified him that an error hade been
made in calculating his pension amount and that the overpayment would be
recouped and the monthly benefit reduced. He challenged the reduction. An
intermediate state appeals court found that the system lacked the statutory
authority to correct errors in pension calculations after the elapse of a 35
day period authorized by a state Administrative Review Law. Sharp v. The Board
of Trustees of the State Employees' Retirement System, #4-13-0125, 2014 IL App
(4th) 130125. 2014 Ill. App. Lexis 2.
The widows of two deceased firefighters who
received duty-related injuries and died were not entitled to have a form of
compensation that their husbands never received included in the calculation of
their widows' pension. Duty availability pay to compensate firefighters for
being available for duty was created after their husbands had already had their
accidents, so they never received it. It could not then be included in the
calculation of their benefits based on the current salary of the position last
held by the deceased. Hooker v. Ret. Bd. of the Firemen's Annuity & Benefit
Fund of Chicago, #114811, 2013 IL 114811, 2013 Ill. Lexis 1621.
A federal bankruptcy judge has ruled that the
city of Detroit's retiree pensions can be cut as part of the city's bankruptcy.
The city's largest employee union has filed an appeal to a federal district
court, and also reportedly plans to ask the bankruptcy court for permission to
take the case directly to the U.S. Court of Appeals for the Sixth Circuit. In
Re: City of Detroit, Michigan, Debtor, Chapter 9, #13-5386, U.S. Bankruptcy Court
(E.D. Mich. Dec. 3, 2013).
Michigan's governor appointed an emergency
manager for a city having economic difficulties. That manager, acting under a
law known as Public Act 4, modified the collective bargaining agreements of the
city's retired employees. He also modified severance benefits, including
pension benefits, that the city had previously given to retirees who were not
covered by a collective bargaining agreement. Retired employees challenged the
emergency manager's power to reduce their retirement benefits, claiming that it
violated their federal constitutional rights under the Contracts Clause, the
Due Process Clause, and the Bankruptcy Clause. A federal appeals court noted
that there was a question of Michigan state law as to whether the legislature
violated the state constitution in passing Public Act 4, and, additionally,
that Michigan's voters had subsequently rejected Public Act 4 in a ballot
referendum, which may have rendered the emergency manager's actions void. The
appeals court, therefore, declined to rule on the federal constitutional
claims, remanding for further proceedings to determine whether the actions
taken under the now rejected law still have any power. City of Pontiac Retired
Emps. Ass'n v. Schimmel, #12-2087, 2013 U.S. App. Lexis 16519, 2013 Fed. App.
0215P (6th Cir.).
A federal appeals court upheld in general the
District of Columbia's laws against "double dipping" by employees who
retired from a job with the District and then were rehired in another job,
attempting to draw both a full pension and a full salary. The plaintiffs were
retired employees of the Metropolitan Police Department who drew a pension and
were subsequently hired by another District agency. The court found that the
claims that the salary offset violated the Fifth Amendment, and the Equal
Protection Clause were meritless. It did, however, find that in slashing three
of the plaintiffs' salaries, allegedly below the federal minimum wage, the
District may have overstepped the boundaries of the Fair Labor Standards Act
(FLSA), so further proceedings were needed. Cannon v. District of
Columbia, #12-7064, 2013 U.S. App. Lexis 11130 (D.C. Cir.).
An employee who retired from federal service
agreed to get a reduced annuity, naming his wife to receive a survivor annuity.
Later, they divorced and he married another woman. He received annual notices
telling him that if he wanted to have survivor benefits paid to a spouse he
married after retirement, he had to send in a signed request within two years
of the marriage. He sent in such a request four years after the marriage, and
it was denied as untimely. He was then told to send in his divorce decree from
his first marriage to change or eliminate the prior survivor election. He
waited four more years before doing that, and was told that the change had been
made. When he died, the first wife's application for survivor's benefits was
denied and the second's wife's application was granted. The Merit System
Protection Board held that the benefits should go to the first wife. The Court
of Appeals for the Federal Circuit reversed, finding that the award to the
first wife was not supported by substantial evidence. Dachniwskyj v.Office of
Pers. Mgm., #11-3158, 2013 U.S. App. Lexis 6550 (Fed. Cir.).
The highest court in New York ruled that, after a
collective bargaining agreement with a firefighters' union expired, current law
did not allow the firefighters to retain their non-contributory retirement
benefit plan. Therefore, an arbitration award ordering the city to keep
providing that benefit had to be vacated, since the arbitration award now
conflicted explicitly with state law. In the Matter of City of Oswego v.
Oswego City Firefighters Association, #49, 2013 N.Y. Lexis 578, 2013 NY Slip Op
2163
The widow of a Baltimore firefighter began
receiving survivor benefits from his pension. She later filed a dependent's
claim for death benefits under workers' compensation. The city argued that a
statute reducing workers comp death benefits by the amount of a pension
applied, while the widow argued that another statute, allowing firefighters'
dependents to collect both the workers' compensation and the pension, up to the
total amount that had been the firefighter's salary applied. The highest court
in Maryland ruled that the widow had no preexisting right to dual benefits, as
the statute that now allowed such benefits was amended after her husband had
already died. Because this change was substantive, it did not apply
retroactively. Johnson v. Baltimore, #45/12, 2013 Md. Lexis75.
A federal employee served as a criminal
investigator or special FBI agent until she retired in 2008. From when she
started working in 1983 until early in 2001, she received "availability
pay" as provided by a statute, 5 U.S.C. 5545a. This pay was equal to 25
percent of her base pay, and to qualify for it, she had to work at least 40
hours a week and at least be available to work, if needed, up to two extra
hours each work day. A federal appeals court ruled that she had not been
eligible for, and had not received, such availability pay after she started
working part time until her retirement. As a consequence, her average pay used
in calculating the amount of her retirement annuity should not include
availability pay. Her highest three years of pay were at the end of her years
of service, 2006-2008, but she did not then receive availability pay. Denney v.
Office of Pers. Mgmt., #12-3094, 2013 U.S. App. 2753 (Fed. Cir.).
The Florida Supreme Court has ruled that the state
legislature did not violate the Florida Constitution by changing the Florida
Retirement System for state employees from noncontributory to contributory and
requiring all current members of the system to contribute three percent of
their salaries to it. The legislature also had the power to eliminate further
retirement cost of living adjustments to creditable service after the effective
date of the statute. None of these changes breached any statutorily created
contract rights or any state constitutional right, such as the prohibition
against an unconstitutional "taking." The changes merely
prospectively changed benefits for future service performed. Scott v. Williams,
#SC12-520, 2013 Fla. Lexis 65.
A firefighter who injured his back after lifting a
360-pound patient onto a stretcher in an ambulance was awarded a firefighter's
duty-related disability pension. The Pension Board subsequently terminated his
benefits upon a determination that he had not been disabled when the pension
was granted. It relied on a medical examination by a doctor which found that
the firefighter was not and never had been disabled and was only expressing a
subjective claim of pain. The decision was not against the manifest weight of
the evidence and the Board was empowered to terminate the benefits. Hoffman v.
Orland Firefighters' Pension Board, #1-11-2120, 2012 Ill. App. Lexis 952, 2012
IL App (1st) 112120.
A retired California state employee receiving a
pension wanted to enter into a domestic partnership under state law with the
woman he lived with, who had taken care of him during his illness. He
designated his estate as his beneficiary, and then he and the woman went in
front of a notary to sign a declaration of domestic partnership. Later that
same afternoon, he died. She then took the certificate of domestic partnership
and filed it with the state. Based on that, she applied for state pension
survivor's benefits. Because the certificate was not filed with the state while
the decedent was still alive, no valid domestic partnership was formed and she
was not entitled to state pension survivor benefits. Burnham v. California
Public Employees' Ret. Sys., #C067715, 208 Cal. App. 4th 1576, 2012 Cal. App.
Lexis 942 (Cal. App. 3rd Dist.).
A police officer who suffered an injured knee
during a traffic stop, and claimed that he had continuing pain and reduced
functioning after undergoing two surgical procedures was properly denied both a
line-of-duty disability pension and a not-in-duty disability pension. A
functional capacity evaluation (FCE) evaluator presented a comprehensive report
documenting that the officer was able to perform his job functions at a medium
physical demand level, with only some limitations on lifting and carrying. The
pension board properly relied on that report, and on the opinion of a doctor
who reviewed the report and agreed with its conclusion that the injured
employee could continue to function as a police officer. Goodman v. Morton
Grove Police Pension Board, #1-11-1480, 2012 Ill. App. Lexis 87, 2012 IL App
(1st) 111480, (1st Dist.).
Fifth Circuit holds that the United States may
garnish a sheriff's retirement benefits to satisfy a criminal restitution
order, but only up to 25% the monthly benefits. In the case of a full
redemption of paid-in contributions, the entire amount is subject to seizure.
U.S. v. De Cay (La. Sheriffs Pension Fund), #09-30218, 2010 U.S. App. Lexis
19522 (5th Cir.).
In an action claiming that a city breached its
obligations under the Employee Retirement Income Security Act of 1974 to make
contributions to the fund, the city could not seek dismissal on the ground that
a bargaining agreement called for binding arbitration. The CBA did not empower
the city to initiate arbitration. Dugan v. City of W. Chicago v. Int. Union,
etc., #08 C 2223, 2009 U.S. Dist. Lexis 22110 (N.D. Ill.).
Florida pension trustees file a class action
lawsuit in N.Y. City, claiming that a major insurance and financial services
firm artificially inflated its share prices and concealed risky investments,
resulting in investor asset losses. Jacksonville Police and Fire Pension Fund
v. American International Group, #1:2008cv04772, Complaint, Pacer Doc. 1
(S.D.N.Y. 2008).
City of San Diego agrees to settle a pension
underfunding lawsuit for $173 million; funds to come, in part, from a tobacco
settlement. McGuigan v. City of San Diego, #GIC 849883, 44 (2162) G.E.R.R.
(BNA) 657, 33 Pension & Benef. Rep. (BNA) 1446 (Cal. Super. Ct 2006). {N/R}
In two cases, Illinois appellate courts hold that
a convicted police officer and a judge were only entitled to a refund of their
pension contributions, less the amounts paid to them prior to their
convictions. In the case of the officer, the prior benefits paid had exceeded
the amount of his contributions. Shields v. Bd. of Tr. of Judge's Retirement
System, #1-00-4133, 329 Ill.App.3d 27, 768 N.E.2d 26, 2001 Ill. App. Lexis 826
and Phelan v. LaGrange Park Police Pension Fund, #1-01-1226, 327 Ill.App.3d
527, 763 N.E.2d 343, 2001 Ill. App. Lexis1483 (Released 2002). An appeal before
the IL Supreme Court is pending in the Shields case, Docket # 94029
(10/01/2002). {N/R}
Federal
appeals court allows cities to appropriate "excess" funding from fire
and police pension funds. Koster v. City of Davenport, # 98-1459, 1999 U.S.
App. Lexis 15030, 183 F.3d 762 (8th Cir. July 7, 1999). [1999 FP 135]
Federal Courts in Illinois rules that a police
pension fund is a covered entity under A.D.A. Court also declines to dismiss
the city as a co-defendant. Holmes v. Aurora, 3 AD Cases (BNA) 23 (N.D.Ill.
1993) and 4 AD Cases 967 and 4 AD Cases 1781 (N.D.Ill. 1995). See also: Deertz
v. Chicago, 912 F.Supp. 319 (N.D.Ill. 1995) and Piquard v. Peoria, 887 F.Supp.
1106 (E.D.Ill. 1995). [1994 FP 76]
Article: ADA pension litigation certain to rise
against police and fire depts., 34 (1664) G.E.R.R. (BNA) 679-680 (May 1996).
Firefighter lawfully denied a pension following
his arson conspiracy conviction, even though he would have been entitled to a
pension if convicted of a non duty-related offense. Parente v. Town of West
Warwick, 685 F.Supp. 873 (D. R.I. 1988).
New York's highest court rules that part-time
public employees are entitled to pension benefits unless the law which
establishes the pension fund specifically excludes them. Doctors Council v. N.
Y. City Emplees. Ret. Sys., 71 N.Y.2d 669, 525 N.E.2d 454 (1988).
Editor's Note: Most "pensions" are
either "ordinary" or "disability" benefits. Ordinary
retirements (non duty-related) are discussed under Retirement
Rights and Pension. Duty-related systems are discussed under Disability Rights and Benefits, or
Workmen's Compensation.
See also: Age Discrimination,
Disability Benefits & Rights, Handicap Laws & Abilities Discrimination; Light Duty Assignments (in lieu of pension), Retirement Benefits & Rights, and Stress-Related Claims & Defenses.