Cypen & Cypen
JULY 28, 2011
Stephen H. Cypen, Esq., Editor
1. UNIONS AND PUBLIC PENSION BENEFITS: The Center for State and Local Government Excellence has released an Issue Brief entitledUnions and Public Pension Benefits. Everyone has an opinion about public pensions, but it is not always informed by the facts. Are local and state governments about to declare bankruptcy because of pension obligations? Of course not. There are substantial pension assets held in a trust and pensions are generally paid out over a number of years, not in a lump sum. With a few exceptions (those plans that are fully funded or very poorly funded), most pension plans are making modest changes that will strengthen their funding over a period of years. Are public sector pensions overly generous? The authors found that the average annual benefit in 2008 was $23,000. While public sector pensions are more generous than those in the private sector, wages for public sector workers are lower than for private sector workers with similar jobs. REPEAT: wages for public sector workers are lower than for private sector workers. Looking back over the last 20 years, the authors found that changes in pension policies were driven by the need to stay competitive and the state’s fiscal condition. The role of unions in benefit growth is not significant, although union membership does correlate with higher wages. It is a time of dramatic change and public sector employees are feeling the crunch. The challenge is for labor and management to come up with solutions that are both affordable and meet long-term human resource goals. Doing so, however, requires a foundation of trust. Governors in several states have launched initiatives to curb collective bargaining in the public sector. One possible implication is that governors view unions as responsible for pushing up state and local pension benefits. The brief identifies the impact of public sector unions and other factors on benefit levels, wages and employment. The first section summarizes what is known about pensions, wages, workers and unionization in the public sector. The second section reports on a series of empirical exercises to determine the role of unions in explaining public pensions and wages. Results show that unions have no measurable effect on plan generosity or rate of growth in pension benefits, but do have a quantifiable impact on wage levels and perhaps number of workers. The third section presents a possible reason for this outcome. Public sector pensions are legislated, not bargained, so the articulateness and acumen of the lobbyists may be more important than the number of union members; in contrast, wages are bargained and union strength could have a more direct effect. The final section concludes that this area is ripe for further research because results appear to contradict the general perception of commentators and politicians. Readers can access the entire 18-page report at http://www.slge.org/vertical/Sites/%7BA260E1DF-5AEE-459D-84C4-876EFE1E4032%7D/uploads/12-020_CSLGE-IB_071511_v5.pdf
2. PENSION RIGHTS CENTER SUPPORTS PROPOSED DEPARTMENT OF LABOR REGULATION ON DEFINITION OF FIDUCIARY: The Pension Rights Center sent a letter to members of Congress, supporting a proposed Department of Labor regulation that would protect participants in 401(k) plans and IRAs by changing the definition of a plan “fiduciary” to include firms and brokers that provide investment advice for a fee. This important regulation will ensure that those who give investment advice must act solely in the interests of workers and retirees -- not for their own profit. The proposed regulation would help protect the retirement security of American families. The letter is available athttp://www.pensionrights.org/sites/default/files/docs/speeches/110720_fiduciary_definition_letter_0.pdf. An accompanying memo, which provides additional detail about the proposed regulation, is available athttp://www.pensionrights.org/sites/default/files/docs/110720_fiduciary_definition_memo_0.pdf.
3. 3.5 BILLION REASONS WHY YOUR 401(K) PLAN IS A LOSER: A recent Barron’s article discussed the estimated $3.5 Billion paid by mutual funds to brokers, insurance companies and other advisers to 401(k) plans. These payments are euphemistically called “revenue-sharing.” In reality, they are legal bribes paid to plan advisers, who extract them as the cost of letting these funds gain admission to the investment options in the 401(k) plan. Huffingtonpost.com reports that PIMCO’s Total Return Fund pays $145 Million a year. The Growth Fund of America pays $75 Million and the Dodge and Cox Fund pays about $20 Million a year. The securities industry considers these payments a “win-win,” claiming they reduce overall plan expenses. They are a “win-win,” but not for plan participants. The mutual funds win because they are paying a small price to gain access to a huge pool of assets. More assets mean more fees for them. The advisers win because they pocket a big chunk of change for doing nothing -- unless you consider selling-out plan participants doing something. For hapless plan participants, this system is a disgrace, which should be illegal. And it would be, if our dysfunctional Congress really had the best interest of constituents in mind. It depends on how you define “constituents.” Their real interest is in pleasing the securities industry, which adds to their reelection coffers. No other reason could justify sanctioning this practice. On merit alone, no actively-managed fund should make the investment cut for any 401(k) plan. The majority underperform their benchmark index. Over the long term (which is the right way to measure performance, since 401(k) investments are primarily for longer time periods), less than 5% of actively-managed funds will equal their benchmark index. Of course, there is no way to predict which ones will be the next winners. Clearly, plan participants would be far better off with a small number of pre-allocated, globally diversified portfolios of stocks and bond index funds at different risk levels. The primary reason most plans are populated with actively-managed funds (and under-populated with index funds) is that actively-managed funds pay off and index funds do not. Because of this shady practice, advisers who accept these payments refuse to give investment advice to plan participants. Understandably, they are worried about liability caused by their clear conflict of interest. Your retirement with dignity -- and perhaps your being able to retire at all -- may depend on your taking charge of your 401(k) plan and wresting control of it from those feeding at the trough.
4. MANY FLORIDA PUBLIC EMPLOYEES CONTRIBUTE TO PENSION PLANS: Writing in a recent Miami Herald Reader’s Forum, Raymond Edmondson, Jr., CEO, Florida Public Pension Trustees Association, responded to an earlier piece by the President of Florida TaxWatch. Some statements in the column implied that public workers have, for the first time, been forced to contribute to their pensions. Left unstated is that just over half of all government workers in Florida are state employees covered by the Florida Retirement System. The rest are employed by and receive retirement benefits from county, municipal, city and local governments and they have always been required to contribute to their pension plans. According to the most recent state report on employees issued in March, Florida has approximately 655,000 active state public employees, with 304,000 retirees and beneficiaries. In addition, there were listed 489 local public pension plans across the state representing 107,007 employees with 66,154 retirees and beneficiaries. State and local combined, there are only about 370,000 retirees collecting benefits. In fact, the 489 local public pension plans operate independently of the Florida Retirement System. The vast majority of them are well funded, and they have always required employees to contribute. More than one quarter of these public workers will not receive Social Security benefits. Some of them contribute as much as 10 percent of their salary. On average, about 75 percent of public pension benefit payouts (state or local) come from earnings on the fund, not taxpayer dollars. Throwing around big numbers is easy. But taxpayers deserve more truthful and contextual facts with which to make informed decisions. As usual, public employees can count on Ray to tell it-like it-is.
5. 22 PERCENT FLORIDA RETIREMENT SYSTEM RETURN FOR 2010-2011: Florida State Board of Administration released preliminary figures for fiscal year ending June 30, 2011, showing the Florida Retirement System Pension Plan posting a return of 22.0 percent, beating its benchmark by 30 basis points and ending the fiscal year with a market value of $128.5 Billion. This market value is an increase of $19.10 Billion above 2010 figures, after net distributions of $4.6 Billion to retirees. The returns confirm that the FRS Pension Plan has implemented a solid investment strategy for the nearly 1,000,000 beneficiaries of the plan, and kept costs low for the nearly 1,000 participating employers. The return represents the best performance of the past 25 years in absolute terms, on top of the all-time best above-benchmark return SBA earned last year. The FRS Investment Plan, the optional defined contribution retirement plan for public employees, also posted year-end gains. With over 136,500 participants, the plan grew to a year-end record $6.74 Billion, representing an increase of $1.69 Billion more than this time last year. Returns for the FRS Investment Plan were 18.10%, beating its benchmark by 87 basis points. The all-in cost for managing the FRS Pension Plan was 32 basis points, third lowest within FRS Pension Plan’s peer group and nearly 40% lower than that of the median pension plan. Tellingly, FRS Investment Plan management costs were not reported. One other scary (at least to us) statistic: during the fiscal year, almost 10,000 (25%) new hires elected the Investment Plan, and 8,300 pension plan members switched to the Investment Plan. No comment.
6. RETIREMENT PLAN ADMINISTRATOR CANNOT QUESTION VALIDITY OF DOMESTIC RELATIONS ORDER: Continental Airlines, Inc. and its Pilots Retirement Plan Administrative Committee appealed an order involving a question of whether Employment Retirement Income Security Act allows a retirement plan administrator to seek restitution of benefits that were paid to a plan participant’s ex-spouse pursuant to a domestic relations order such as a divorce decree, if the administrator subsequently determines the domestic relations order is based on a “sham” divorce. The U.S. Fifth Circuit Court of Appeals agree with the district court’s holding that ERISA does not authorize an administrator to consider or investigate the subjective intentions or good faith underlying a divorce. Thus, the appellate court affirmed the district court’s dismissal of those claims. Continental alleged that pilots and spouses obtained “sham” divorces for purpose of obtaining lump sum pension distributions from the Plan, which they otherwise could not have received without separating from employment. By getting divorced, the pilots and spouses were able to obtain domestic relations orders from state courts, which assigned as much as 100% of the pilots’ pension benefits to spouses. The Plan provided that, upon divorce, if a pilot is at least 50 years old (as all pilots in this case were), an ex-spouse to whom pension benefits are assigned can elect to receive those benefits even though the pilot continues to work. Thus, pilots and spouses presented the domestic relations orders to Continental, and requested payment of lump sum pension benefits to spouses. After the spouses received the benefits, the couples remarried. (Pilots were worried that financial troubles in the airline industry might result in the Plan’s being taken over by Pension Benefit Guaranty Corporation, leading to their receiving less than full benefits upon retiring and being precluded from receiving benefits as a lump sum instead of an annuity.) The court of appeals rejected Continental’s claims that a plan administrator has authority to refuse to deem a domestic relations order to be a qualified domestic relations order based on its determination that the underlying divorce is a sham. ERISA requires an administrator to determine that a domestic relations order is a qualified domestic relations order if it satisfies all statutory criteria, and participants’ good faith in obtaining a divorce is not among those criteria. If, as Continental argues, there are important considerations of public policy that favor allowing plan administrators to apply the sham transaction doctrine in deciding whether to qualify domestic relations orders, then Continental should ask Congress to amend the statute. Brown v. Continental Airlines, Inc., Case No. 10-20015 (U.S. 5th Cir., July 18, 2011). (Note that in Florida, governmental plans are generally not subject to domestic relations orders in any circumstances.)
7. CONNECTICUT PENSIONS FAR EXCEED IRS LIMITS: Everybody has seen the annual top-10 lists of “high” state retiree pensions. But, reports courant.com, if you think you have heard everything about problems with Connecticut’s state employees’ pension plan, you are mistaken. Here is a new one: over the past decade or so, the state has apparently paid a small group of elite pension recipients hundreds of thousands of dollars more than the Internal Revenue Code allows for public employee pension plans. Since 2009, $195,000 has been the IRC cap for an annual pension under plans such as Connecticut’s, but that limit was exceeded last year by five state retirees’ pensions that ranged from $198,296 to $263,047. Most were for former University of Connecticut professors and administrators. Overpayments may even go into the million dollar realm if they are added up for all retirees over the past decade, but state officials say they will not know how much money is involved until actuaries and tax lawyers investigate the situation during coming months in consultation with Internal Revenue Service. The IRC grants significant tax benefits to pension plans like Connecticut’s, such as allowing employees to make their annual contributions toward pensions without having to pay income tax on them. But in granting such tax benefits to a pension plan, IRS insists that the plan abide by limits to the size of pension payments. Since January, newly-elected Comptroller Kevin Lembo has been abiding by IRC pension limits with state employees who have retired this year. But, so far, he has left intact pensions being paid far above the IRC limit to a few retirees. There is an issue of fairness to new retirees, whose pension amounts may be lower than they would have been because IRC rules are now being adhered to, even though there has been no reduction in benefits of people who retired in past years and whose pensions remain over the IRC limit. At least one recent retiree has seen his pension reduced by the IRC limit to a lower amount than he expected: a prison guard who retired in March at age 43 from the Department of Correction after 21 years of service. “Hazardous-duty” employees, such as police and prison guards, can retire after 20 years regardless of age. The prison guard’s lifetime pension under the state’s formula would have been $62,040 in his first year, with annual cost-of-living increases. However, with new imposition of IRC rules -- which reduce the maximum allowable pension on a sliding scale according to age -- his pension has been reduced to $56,160. (Because the classification of prison guard does not meet the definition of law enforcement officer for IRC purposes, the prison guard was not entitled to the special floor of $195,000.) Do the words “Section 415” ring a bell?
8. SEC RULE ON SHAREHOLDER-NOMINATED CANDIDATES FOR BOARD INVALID: The Business Roundtable and the Chamber of Commerce of the United States, each of which has corporate members that issue publicly traded securities, petitioned for review of Exchange Act Rule 14a-11. The rule requires public companies to provide shareholders with information about, and their ability to vote for, shareholder-nominated candidates for the board of directors. They argued the Securities and Exchange Commission promulgated the rule in violation of the Administrative Procedure Act, because, among other reasons, the Commission failed adequately to consider the rule’s effect upon efficiency, competition and capital formation, as required by the Exchange Act and the Investment Company Act of 1940. The United States Court of Appeals for the District of Columbia Circuit agreed, granted the petition for review and vacated the rule. Specifically, under the rule, a shareholder or group of shareholders must have continuously held at least 3% of the voting power of the company’s securities entitled to be voted for at least three years prior to the date the nominating shareholder or group submits notice of its intent to use the rule, and must continue to own those securities through the date of the annual meeting. The nominating shareholder or group must submit the notice, which may include a statement of up-to 500 words in support of each of its nominees, to the Commission and to the company. A company that receives notice from an eligible shareholder or group must include the proffered information about the shareholders and their nominees in its proxy statement, and include the nominees on the proxy voting card. Because the court of appeals held the Commission was arbitrary and capricious in promulgating the rule, the court had no occasion to address petitioners’ First Amendment challenge to the rule. Business Roundtable v. Securities and Exchange Commission, Case No. 10-1305 (U.S. DC Cir., July 22, 2011).
9. MAYOR’S PERSONAL EMAILS NOT PUBLIC RECORDS: Butler appealed from a final judgment in a declaratory action filed by City of Hallandale Beach, Florida, which sought a declaration that a list of recipients of a personal email sent by Hallandale Beach Mayor, Joy Cooper, was not sent in connection with discharge of any municipal duty, and, therefore, was not a public record under Florida’s Public Records Law, Chapter 119, Florida Statutes. The email in question was sent by Cooper from her personal email account, using her personal computer, and was blind carbon-copied to friends and supporters. The email itself was very brief, and contained three articles that Cooper wrote as a contributor to the South Florida Sun Times, as an attachment. The trial court found that Cooper was under no legal obligation to notify her friends and supporters that a column had been published, and further that the City played no role in Cooper’s decision to send the email to friends. Therefore, Butler was not entitled to the names and email addresses of the recipients of the email. The District Court of Appeal agreed, and affirmed. The Supreme Court of Florida has concluded that the definition of public records is limited to public information related to records, and further defined the term “records” as those materials that have been prepared with the intent of perpetuating or formalizing knowledge. And just as the Supreme Court concluded that the mere fact email was a product of a City’s computer network did not automatically make it a public record, the City conceded that the mere fact Cooper’s email was sent from her private email on her own personal computer is not the determining factor as to whether the email was a public record. The City played no role in Cooper’s decision to write articles for the Times. The City played no role in identifying topics about which Cooper chose to write, and exercised no control over content of the articles. The City played no role in Cooper’s decision to distribute or not distribute herTimes articles, or the means by which she chose to do so. The City played no role in deciding to whom Cooper chose to distribute copies of her articles; Cooper herself decided to distribute articles to select personal friends and supporters at her own discretion. The email that Cooper sent was not intended to perpetuate, communicate or formalize the City’s business; it was simply to provide a copy of the articles to Cooper’s friends and supporters. The email was not made pursuant to law or in connection with transaction of official business by the City, or Cooper in her capacity as Mayor. Butler v. City of Hallandale Beach, 36 Fla. L. Weekly D1547 (Fla. 4th DCA, July 20, 2011).
10. 10 KEY RETIREMENT AGES TO PLAN FOR: USNews.com presents 10 Key Retirement Ages to Plan For:
Enjoy yourself, it’s later than you think.
11. IS IT TIME TO RETIRE WHEN THE MARKET IS UP?: A new study sponsored by Prudential Financial on timing of individual retirement decisions from 1992 to 2008 demonstrates that Americans are more likely to retire after periods of strong equity market performance, following retirement of a spouse or if they participated in a defined benefit pension plan. The study clearly shows that the stronger the equity market performs over any period, the more likely it is that near-retirees will, in fact, retire. A 10 percent increase in the S&P 500 index results in a 25 percent increase in likelihood that individuals will retire, compared to a year in which the S&P 500 index performance was flat -- all other factors being equal. An analysis of historical returns of the S&P 500 index from 1926 to 2010 shows that the stronger equity markets perform over a prior three-year period, the more likely it is that they will fall in the subsequent year. As a result, Americans are more likely to choose to retire at a time when there is more risk that their retirement assets will decline in value just after retiring. Market losses in early years of retirement are much more detrimental to retirement security than losses experienced later in retirement, assuming a retiree has begun to draw upon his assets. The risk outlined in the study can be addressed if plan sponsors include a guaranteed income option in their defined contribution plan that protects retirement income from market downturns both before and during retirement. The study also found that pre-retirees with only defined benefit plans are almost twice as likely to retire in any given year versus those covered only by a defined contribution plan. Furthermore, pre-retirees with a retired spouse are almost two-and-one-half times as likely to retire in any given year as their counterparts with a working spouse.
12. MIDDLE-INCOME BOOMERS, FINANCIAL SECURITY AND THE NEW RETIREMENT: Bankers Life and Casualty Company’s Center for a Secure Retirement has released Middle-Income Boomers, Financial Security and the New Retirement. The study seeks to understand how middle-income Boomers define retirement, approach planning for it and assess their own retirement preparedness at this point in their lives. Here are some Key Findings:
For generations of Americans the right time to retire was usually determined by a number – one’s age. The “right” age to retire was often driven by a company pension formula, and most people assumed they would retire by age 65. Today, more than ever, a new number has emerged in its place -- the amount of one’s personal savings. On the new road to retirement, Americans can now retire only when they feel they can afford to do so. Several factors have contributed to this change. First, for decades there has been an ongoing, national shift of retirement risk and responsibility from institutions (employers and the government) to the individual. This switch is most clearly demonstrated with demise of the corporate defined benefit pension, rise of the 401(k) and discontinuation of many employer-paid retiree health benefit plans. Second, the national dialogue about Social Security, a meaningful source of retirement income for middle-income Americans, has fueled uncertainty about its future. Third, the recession and economic downturn have shaken the confidence of middle-income Boomers in their financial security. If there is a silver lining to the economic crisis, perhaps it is that it occurred before the first wave of 78 million Baby Boomers began turning 65 in 2011. And that the downturn will encourage more people realistically to examine their financial plan for retirement while they may still have time to make adjustments that can help improve their financial security, and, ultimately, enjoyment of their retirement years.
13. ATTRACTING TALENT IN THE RECOVERING ECONOMY: Monster.com has released results of a study that explores views of both sides of the employer-employee relationship. Entitled What Matters Most: Attracting Talent In The Recovering Economy, it surveyed Human Resource leaders who are on the front lines of the critical effort to attract quality employees. It also surveyed workers, employed and unemployed, who are looking for new job opportunities. The study found:
After several years of difficult staffing decisions and workload cutbacks, the picture for businesses and employees may finally be improving. As the economy turns this corner, now is the time for companies to take stock in their human capital and to prepare their companies for the future.
14. LEGALLY WEIRD: FindLaw periodically publishes its legal curiosities blog entitled “Legally Weird.” Here are a few current samples:
15. RUGER’S LATEST WEAPON: Ruger is coming out with a new pistol in honor of our federal legislators. It will be named the “Congressman.” It doesn’t work and you can’t fire it. (This one came from a reader in Hollywood, Florida.)
16. 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.): Always borrow money from a pessimist. He won't expect it back.
17. QUOTE OF THE WEEK: “Politics consists of choosing between the disastrous and the unpalatable.” John Kenneth Galbraith
18. ON THIS DAY IN HISTORY: In 1896, City of Miami incorporated.
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