Cypen & Cypen
MARCH 31, 2011
Stephen H. Cypen, Esq., Editor
1. UNFUNDED PENSION LIABILITIES – A RED HERRING: Rarely have so many people believed as an article of faith something so fervently that was not true: unfunded liabilities of public pensions are speeding us toward fiscal Armageddon. Unless something drastic is done very soon, we taxpayers will have to bailout overly generous, fiscally irresponsible public employee pension systems. Class war is looming, according to one New York Times columnist, between taxpayers and the beneficiaries of these systems. But portside.org says if most people who believe these things are asked what an unfunded liability is, they are not exactly sure. They only know that an unfunded liability is bad, very bad, and threatening to them. To understand what an unfunded liability is, it is necessary to look at how most pensions used to be funded, on pay-as-you-go bases. On such basis, as contributions from employers and employees came in, they were paid out to retirees. It worked for government pension funds because one could assume that they would always be around with workforces to make contributions, unless one believed in the arch libertarian fantasy of total privatization, a government without government employees. However, one could reasonably believe that some day there might be fewer employees supporting more retirees, and the fiscal balance would be upset. That possibility, plus the reality that private corporations with pension funds might go bankrupt, stimulated the call for prefunding of pensions. With a fully pay-as-you-go system, if contributions stop, as when a company goes out of business, pension payments have to stop too, and current workers receive nothing for their contributions. The whole idea of prefunding is to build up enough of a reserve in pension funds so that should contributions stop, there will be enough to keep paying pensions for the rest of retirees' lives, and pay off current workers for what they have contributed. -- a good, prudent, fiscally conservative goal. Any pension fund can be measured according to how close it has come to achieving that goal. Some public pension funds are fully funded, others overfunded, yes, overfunded, and others underfunded, the ones that selectively receive all press attention and ire. The author is still waiting to see a newspaper article about the public pension funds that are in very good shape despite the recession. Being underfunded, in itself, is not a problem, so long as enough contributions are coming in to meet current – as opposed to all current and future -- obligations. There is no need to reform the balance between revenues and expenses if there is progress toward full funding. Even if progress is stalled or going in the other direction, there still may be no fiscal need for reform, if the condition is temporary, as when a recession decreases revenues from pension fund investments – what is currently beleaguering many public as well as private pension funds. Reforms are only needed for those pension funds whose balances of unfunded liabilities are growing on a long term basis. In the worst of those cases, slight changes in contribution rates deliver dramatic revenue increases. Abuses such as spiking -- the artificial driving up of final salaries with overtime and other means to increase benefits -- can and should be eliminated. Employer underfunding by skipping contributions that are not made up can be reduced or eliminated. Early retirement incentive programs that offer workers unearned pension credits can be repealed. The real aim of enemies of public pensions, though, is not prudent stewardship of the funds, it is to eliminate them entirely and replace them with 401(k)s. Public as well as private pension funds can have unfunded liabilities because their benefits are guaranteed, which requires that they be funded properly. Because 401(k)s have no guaranteed benefits, by definition they have no liabilities, funded or unfunded. Their sponsors are thus completely absolved of any responsibility for proper funding. If a state skips payments to a public pension fund as a means of making up for revenue shortfalls during recessions, that elision will come back to haunt it in the form of an increased unfunded liability that must be addressed when the economy improves. If an employer skips payments to a 401(k), it can be done without fear of having to face any future reckoning. All future consequences will be borne by workers at retirement. Curiously, when 401(k)s began in 1981, they were sold on a promise, but with no guarantees, that they would deliver greater benefits than traditional pensions. Now that claim has been exposed to be false, the argument has shifted to claim traditional pensions are too expensive. To sustain this new argument, proponents of 401(k)s have exaggerated the fiscal problems of public pensions, to manufacture the perception of imminent crises where none exists, and attempted to whip up resentment against those who still have secure pension plans. It is a manufactured crisis that diverts attention from the real crisis: American retirement security is declining rapidly, precisely because 401(k)s have increasingly replaced secure, fiscally sound, traditional pensions. If we find the piece from starboard.org, we will review it.
2. PUBLIC EMPLOYEES RUSH TO RETIRE: WSJ.com reports that public employees are retiring at a quickening pace around the U.S., providing a mixed blessing for state and local governments seeking to save money. Retirements mean employers can shelve some planned layoffs. And some of the departing workers, generally more senior and higher paid, are being replaced by lower-paid employees with less-generous retirement benefits. But the loss of veterans threatens to erode the quality of public services that make communities attractive. The exodus of public employees is an unintended consequence of states' financial struggles. Many workers fear they will lose benefits at the center of political battles. In Wisconsin, where lawmakers voted to end workers' collective bargaining for future employment contracts, 3,362 people have applied to retire this year, a 73% jump from last year. And 10,975 people since the beginning of the year have taken the first step toward retirement -- flooding the Wisconsin Department of Employee Trust Funds with requests for estimates of their potential benefits, up 134%. Budget cuts and reduced benefits are motivating many employees to retire sooner than expected, as public employees take the opposite approach of many workers who have put off retirement to recoup personal wealth lost during the recession. Public-worker retirements had already been rising due to aging of baby boomers and other factors, but they have accelerated amid cutbacks by government employers. In New Jersey, four big pension funds saw a record 20,327 retirements in 2010 versus 12,720 the year before, amid the prospect of less-generous benefits.
3. NEGOTIATE IN THE SUNSHINE: Public union leaders are being unfairly blamed for the fiscal mess at many of our state and local governments, writes Jackie Bueno Sousa in the Miami Herald. Blame them – for what? -- for being better negotiators than many of the public managers on the other side of the table? Demonize them for aggressively looking out for their constituents' interests? Punish them for effectively getting their people to go out and vote? Nope. The writer respects those who are good at what they do. In fact, we would do well to have some of those union leaders negotiating in behalf of taxpayers. Until then, we need to learn from them, not chastise them. Many factors make them so much better at contract negotiations than the public managers who are supposed to be looking out for the taxpayers. The most significant may be that they have a clearly defined focus and interest: public workers. Taxpayers should exert more leverage. By law, public-employee collective bargaining in Florida is supposed to take place in the sunshine, in full view of the public. In practice, however, negotiations often take place quietly with little outside presence. That negotiations take place mostly out of public view is mindboggling; that public managers do not do more to advertise and publicize the negotiations is shameful. A closed process only serves to heighten the real problem -- the disconnect between government and citizens. Encouraging the public modestly to scrutinize contract negotiations will help cross the communication barrier between citizens and public officials. As is often the case with transparency, it will also lead to a more informed populace. The process may get messy at times, but that is a minor price to pay for the benefit of fairer outcomes. Besides, we are a democracy; we do messy well. (The researcher referred to in the next item might not agree with Ms. Sousa.)
4. PENSION BENEFITS DO NOT NECESSARILY CORRELATE WITH COLLECTIVE BARGAINING: As reported in New York Times, an economist and independent consultant recently compared public pensions in each of the 50 states, ranking them from richest to poorest. Instead of looking at dollar values, he looked at what part of the average worker’s paycheck his pension was designed to replace in retirement. The method eliminates regional disparities and certain other problems with benefit-cost data. The researcher said he expected to find that the most generous states were the ones with collective bargaining for public workers, but he found no correlation. The following chart depicts the states with the highest replacement rates:
States with Pension Replacement Public Employees
Colorado 90.4 25.7
New York 77.1 72.9
Georgia 67.7 14.5
Ohio 67.0 46.2
New Jersey 65.1 60.6
California 62.3 59.6
Kentucky 58.8 21.4
Wisconsin 57.4 49.6
Illinois 56.0 52.6
Nevada 55.7 45.7
Missouri 55.4 23.8
As can be seen, Colorado offers pensions that replace more than 90% of salary, but Colorado’s pensions are unusually rich because its public workers are not permitted to participate in Social Security – the state pension is the only one they receive. The second-richest state is New York, which replaces over 77% of the worker’s income, even though New York’s public force earns Social Security benefits, as well. That situation might appear to be the fruits of collective bargaining, since New York State granted that right to more of its public work force (72.9%) than any other state. But the third most generous state is Georgia, replacing almost 68% of a retiree’s former paycheck on average, and Georgia is a right-to-work state with one of the lowest rates of collective bargaining in America, just 14.5% of its public work force. Nonunion Georgia’s public pensions are, in fact, three times as generous as those of labor-friendly Vermont, where more than half the public work force has collective bargaining, but where replacement is just 20 percent of a retiree’s previous pay, the lowest of any state. When asked to explain these findings, the researcher was at a loss. Seriously.
5. IN LEAN TIMES, LAWMAKERS KEEP THEIR BENEFITS: The frugal Utah Legislature has privatized future state employee pensions, done away with their retirement benefits and plans to close several state liquor stores and lay off 150 workers. But when it comes to preserving their own taxpayer-funded lifetime health insurance, according to the Salt Lake Tribune, it is a whole different budget issue. Lawmakers reportedly were aghast when a state representative sought an end to the 100 percent state-funded health benefit lawmakers and their spouses get for life after they reach retirement age and had served in the Legislature for at least 10 years. In an era when lawmakers have told providers of state programs that everyone must sacrifice in a time of austerity, nobody wanted to vote against imposing their own sacrifice in a public meeting. The bill passed the House on a 63-0 vote. It died in the Senate, after a number of House members let their Senate colleagues know they wanted it dead, but only voted for it in public to insure their own political hides! The Legislative Fiscal Analyst estimated the benefit package will cost the state $24 Million for the lifetime coverage of all current and retired legislators and their spouses, based on average life expectancies. Nice, real nice.
6. BOISE COUNTY, IDAHO, FILES FOR BANKRUPTCY: When Boise County, Idaho, filed Chapter 9 bankruptcy March 1, 2011, it entered uncharted territory as possibly the first county in state history to seek bankruptcy protection. James Spiotto, a Chicago-based attorney who has authored numerous books and articles on municipal defaults and bankruptcy, told the Idaho Statesman that there are myriad consequences when municipalities resort to bankruptcy. It starts with attorneys’ and consultants’ fees that can soar into the millions. Then there is the impact on county workers -- particularly those dealing with financial matters -- who have to devote time to bankruptcy related inquiries. There is also the stigma of bankruptcy and long-term financial ramifications. When Boise County needs to borrow money, interest rates on bonds are likely to be significantly higher. The county’s filing may also make it more costly for other municipalities. Spiotto opposes creation of a bankruptcy law for states. And although some are predicting a flurry of municipal bankruptcies, he is optimistic. Boise County’s troubles began last December, when a federal jury determined that the county had violated the federal Fair Housing Act in its handling of an application for a proposed teen treatment center. The jury awarded a developer $4 Million in damages. (Try to blame that one on employee benefits.) Chapter 9 was added to federal bankruptcy code in 1937, when thousands of municipalities were defaulting on their obligations. There have been 621 municipal bankruptcies in the country since 1937, the vast majority being special taxing districts. Of the 250 municipal bankruptcies that have occurred since 1980, only 46 --including Boise County -- were cities, towns, villages or counties. The main reason there have been few municipal bankruptcies is because local governments have found other ways to deal with their fiscal problems. (In Florida, for example, how many municipalities are anywhere near their ad valorem taxing cap?)
7. EXECUTIVE BONUSES REBOUND: For many U.S. chief executives bonuses bounced back last year at a speedy clip, reports wsj.com. CEO bonuses at 50 major corporations jumped a median of 30.5%, the biggest gain in at least three years. Top executives collect a lot of different types of pay, including salaries, long-term equity awards and bonuses tied to corporate performance. Bonuses in general are rebounding as some hard-hit industries like autos recover and corporate profits climb. The 50 CEOs in the sample collected a total of $126.1 Million in 2010 bonuses, up from about $83 Million a year earlier.
8. SEC RULE ON GLOBAL PAY COULD EMBARRASS COMPANIES: And speaking of chief executive officers, some companies are fighting a plan that requires them to report the ratio between executive and median employee pay, including wages of overseas workers. Businesses and industry groups are urging the Securities and Exchange Commission to dial back a requirement to publish such a pay ratio under the new Dodd-Frank financial reform law. The rule requires U.S. publicly-traded companies to determine what they pay each employee globally in salary, bonus and benefits and then find the one whose pay falls at the exact midpoint to compare with the CEO's compensation. By disclosing this ratio, advocates say, compensation would be more transparent and accountable to investors and employees. Others see it as a logistical nightmare and burdensome requirement for large employers. The bottom line is that some companies hope to head off an SEC rule that could require embarrassing disclosures comparing CEO and median workers’ pay.
9. FLORIDA GOVERNOR ORDERS RANDOM DRUG TESTING OF STATE EMPLOYEES: Florida Governor Rick Scott has signed an executive order that will require random drug testing of many current state employees, as well as pre-hire testing for applicants. Under Scott's order, current employees in agencies that answer to the governor would be subject to periodic random screening. The executive order says the tests would be required of each employee at least quarterly. Random testing of current employees will begin in the next 60 days. State agencies are already allowed -- although not required -- to do pre-hiring drug screening under the Florida Drug-Free Workplaces Act. Under that law, state agencies, can also require drug testing when there is suspicion that a current employee is using illegal drugs, but courts have generally found that random testing of government workers who are not in jobs that affect public safety amounts to a “search” by the government. Inasmuch as such searches must be “reasonable,” some courts have interpreted such requirements of ordinary government workers as a violation of the United States Constitution's Fourth Amendment prohibiting unreasonable seizures. The American Civil Liberties Union says that a 2004 federal court ruling in Florida on exactly this issue made at least part of the executive order unconstitutional. In that case, a federal judge ruled that the Department of Juvenile Justice violated an employee’s Fourth Amendment rights by ordering random drug testing, and ordered the agency to halt random drug testing and pay the employee $150,000. At $150,000 a clip, this new drug testing program could run into money.
10. ISSUES INVOLVING SECURITIES LENDING IN 401(K) PLAN INVESTMENTS: U.S. Government Accountability Office says securities lending can be a relatively straightforward way for plan sponsors and participants to increase their return on 401(k) investments. However, securities lending can also present a number of challenges to plan participants and plan sponsors. GAO was asked to explain how securities lending with cash collateral reinvestment works in relation to 401(k) investments, who bears the risks and what are some of the challenges plan participants/plan sponsors face in understanding securities lending with cash collateral reinvestment. In testimony, GAO discusses its recent work regarding securities lending with cash collateral reinvestment. GAO is making no new recommendations, but continues to believe that the Department of Labor can take action to help plan sponsors of 401(k) plans and plan participants to understand the role, risk and benefits of securities lending with cash collateral reinvestment in relation to 401(k) plan investments. Specifically, GAO recommended that Labor provide more guidance to plan sponsors about fees and returns when plan assets are utilized in securities lending with cash collateral reinvestment, amend its participant disclosure regulation to include provisions specific to securities lending with cash collateral reinvestment information and make cash collateral reinvestment a prohibited transaction unless gains and losses for participants are more symmetrical. Some 401(k) investment options that hold assets on behalf of plan participants lend out those assets for a period of time to a third party in exchange for collateral. In the United States, cash is the primary form of collateral taken in these securities lending transactions. When cash is received, it is typically reinvested in a cash collateral pool to earn a greater return for participants. Many investment options offered by 401(k) plans engage in securities lending with cash collateral reinvestment, and the structure of investment options offered by the plan affects the type of securities lending the plan engages in -- direct or indirect securities lending --and the way the gains and losses are allocated to plan participants. Plan participants share any gains but fully bear any losses from cash collateral pool investments in case of securities lending with cash collateral reinvestment. Participants only receive a portion of the return when the reinvested cash collateral earns more than the amounts owed to others engaged in the transaction. In the past few years, risky assets in the cash collateral pool, which lost value and were difficult to trade, caused realized and unrealized losses to 401(k) participants. Such participants and some plan sponsors are often unaware that 401(k) plan investment options are engaged in securities lending with cash collateral reinvestment, and that these arrangements can pose risks to plan participants. Current disclosures on these transactions are not transparent, although certain government and private sector entities are taking steps to make these arrangements more transparent and less risky. GAO recommended that Labor also take action to assist plan sponsors in understanding, among other things, potential gains and losses associated with cash collateral pools, and to provide better guidance to plan sponsors and participants. GAO-11-359T (March 16, 2011)
11. APPEALS COURT SUSTAINS MILWAUKEE PAID SICK LEAVE ORDINANCE: A Wisconsin statute permits municipal electors to initiate legislation by submitting a petition requesting that the governing body either adopt a proposed ordinance without alteration or submit it to local electors for a vote. Pursuant to this statute, a coalition of organizations initiated a drive for a petition seeking to enact a proposed ordinance requiring paid sick leave for employees within the City of Milwaukee. After required signatures were collected and the petition was filed, the Milwaukee Council decided not to enact the ordinance but to place it on the ballot. Notice of election containing full text of the proposed ordinance, ialong with the ballot question, was published and posted as required by law. The ballot question asked whether the City Council should adopt an ordinance requiring employers within the City to provide paid sick leave to employees. Shortly thereafter, Metropolitan Milwaukee Association of Commerce, Inc. filed an action seeking a declaration that the ordinance was invalid on a number of statutory and constitutional grounds, and requested temporary and permanent injunctive relief. The circuit court granted a temporary injunction, and then granted summary judgment in favor of MMAC and a permanent injunction (see C&C Newsletter for November 20, 2008, Item 11, C&C Newsletter for December 11, 2008, Item 9 and C&C Newsletter for June 18, 2009, Item 4). In reversing and remanding with directions to grant summary judgment in favor of the City, the Wisconsin Court of Appeals held, inter alia:
Metropolitan Milwaukee Association of Commerce, Inc. v. City of Milwaukee, Case No. 2009AP1874 (WI App. 1, March 24, 2011).
12. BAYER HIT WITH $100 MILLION DISCRIMINATION SUIT: Six former and current employees of Bayer AG's U.S. health care arm filed a $100 Million gender discrimination lawsuit, claiming the U.S. unit discriminates against its female employees in terms of pay and promotion, as well as pregnancy leave. The lawsuit, filed in federal court in Newark, New Jersey, seeks class action status, and is asking for $100 Million in back pay, damages and legal costs. It is the latest in a series of lawsuits alleging discrimination against women by major companies operating in the U.S., according to the Wall Street Journal. The lawsuit alleges a dearth of female leadership, which contributes to ongoing and pervasive discrimination against female employees at Bayer. The female employees complained to upper-level management about discrimination and were told: “You know better. The company won't do anything about that."
13. WILL ARCHDIOCESE NEED MIRACLE TO WIN LAWSUIT?: In a highly unusual case pending before the Supreme Judicial Court of Massachusetts, an order of nuns is suing Cardinal Sean P. O’Malley, Roman Catholic archbishop of Boston, after years of trying in vain to withdraw from a church-run pension fund. The Boston Globe reports that nuns fighting a cardinal in court is almost unheard of, but their lawyers say they did so only as a last resort. The good news is that both parties have agreed to try mediation, and hope to resolve the pension fund dispute quickly. The archdiocese’s pension fund for lay workers -- the trust the nuns invested in, alongside many other independent Catholic organizations -- is significantly underfunded. The nuns have asked the court to order the pension plan trustees, including O’Malley and several of his top aides, to provide them with a full accounting of the nuns’ portion of the fund or to rule that the nuns were technically never part of the church-run plan, and to order the archdiocese to reimburse the nuns’ contributions plus returns and attorney’s fees. The nuns believe they are owed $1.371 Million, based on their estimate of the value of assets in 2007. The nuns say the archdiocese has contended their assets are worth less than $500,000, because of a sharp decline in value of the fund since the 2008 stock market downturn. The 100 percent funding in 2007 is now 83 percent. Forgive me, Father, for I have sued.
14. WOMAN, 92, OPENS FIRE AFTER BEING DENIED KISS: A 92-year-old woman was arrested on charges that she fired shots into a home after a man inside denied her a kiss. A 53-year-old man told his elderly neighbor to leave his home, according to wpbf.com. She said she would only leave if he kissed her, but left angry when the man refused. The man was talking on the phone in his bedroom when the neighbor fired the first in a series of shots from a handgun. She fired from her property, aiming at the victim's carport in order to shoot his beloved car. Instead, she hit the house four times. The victim was not hurt in the shooting, but one bullet did just miss him by inches. After she was arrested, the jailer refused to give her a hug, so she kneed him in the groin.
15. …AND LIKE A GOOD NEIGHBOR…: In Stuttgart, Germany, a judge must decide a case of honorable intentions in a situation where a man hired his neighbor to get his wife pregnant. Demetrius Soupolos and his former beauty queen wife, Traute, wanted a child badly, but Demetrius was sterile. So, after calming his wife’s protests, Soupolos hired his neighbor, Frank Maus, to impregnate her. Since Maus was already married and the father of two children, plus looked very much like Soupolos to boot, the plan seemed perfect. Soupolos paid Maus $2,500 for the job, and for three evenings a week for the next six months, Maus tried desparately, a total of 72 different times, to impregnate Traute. When his own wife objected, he explained, “I don’t like this any more than you do. I’m simply doing it for the money.” Eventually, Soupolos insisted that Maus have a medical examination, which he did. The doctor’s finding that Maus was also sterile shocked everyone except his wife, who was forced to confess that Maus was not the real father of their two children. Now Soupolos is suing Maus for breach of contract, in an effort to get his money back, but Maus refuses to pay out because he said he did not guarantee conception, but only that he would give an honest effort. Yes, indeed, he gave it the old college try.
16. WOMAN HIDES 50 BAGS OF HEROIN INSIDE HERSELF: If you take drugs – which we do not condone – do not purchase anything from Karin Mackaliunas. The Scranton, Pennsylvania, woman apparently missed the memo explaining that her vajayjay has two applications and two applications only: those of the carnal variety and birthing a child. That's right, ladies and gentlemen, Mackaliunas turned her nether regions into storage, according to a report from findlaw.com. Cops found a staggering 54 bags of heroin inside… and, for some reason, $51.22. After crashing her vehicle, Mackaliunas was detained by police on suspicion that she was involved in a burglary of a local bar. When officers searched her, they found three bags of heroin in her jacket. Mackaliunas outright admitted that she was carrying more heroin. In her vagina. Disturbed? After a thorough examination, doctors found the following:
17. REMARKABLE QUOTES FROM REMARKABLE JEWS: God, I know we are your chosen people, but couldn't you choose somebody else for a change? Shalom Aleichem
18. BLESSED ARE THE CRACKED, FOR THEY LET IN THE LIGHT: I smile because I don't know what the heck is going on.
19. PARAPROSDOKIAN: (A paraprosdokian is a figure of speech in which the latter part of a sentence or phrase is surprising or unexpected in a way that causes the reader or listener to reframe or reinterpret the first part. It is frequently used for humorous or dramatic effect.): The early bird might get the worm, but the second mouse gets the cheese.
20. QUOTE OF THE WEEK: “Let a smile be your umbrella, because you are going to get soaked anyway.” Anonymous
21. ON THIS DAY IN HISTORY: On March 31, 1992, the United Nations Security Council voted to ban flights and arms sales to Libya. (And now, almost 20 years later … .)
22. KEEP THOSE CARDS AND LETTERS COMING: Several readers regularly supply us with suggestions or tips for newsletter items? Please feel free to send us or point us to matters you think would be of interest to our readers. Subject to editorial discretion, we may print them. Rest assured that we will not publish any names as referring sources.
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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.