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Cypen & Cypen
AUGUST 31, 2006

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


Alan Hevesi, New York state comptroller, has written an opinion piece in the Binghamton (New York) Press & Sun-Bulletin. In it he addresses claims made by E. J. McMahon, a vocal opponent of public pension funds (see C&C Newsletter for August 24, 2006, Item 4). McMahon wants to make public funds look more expensive than they really are because his goal is to abolish them. The New York State Pension Fund is well funded and will stay that way. Investment professionals agree that the best way to invest to get the best return at the lowest risk is to diversify among stocks, bonds, real estate and other investments. That is just what the state’s pension fund does. McMahon wants the pension fund to earn less so he can say it has a big hole and is too expensive. McMahon’s basic claim is that public pension funds get to take risks that the federal government does not allow for private pension funds. The claim is completely false because public companies are required to report what they would owe if they could only invest in bonds, because that is what would happen if they went out of business and the government took them over. But that is just a number they report. Like public funds, private funds actually invest in stocks. On average, private companies project higher growth in their investments than public pension funds do; simply put, public funds are more conservative. Opponents of public pension funds say they should not invest in stocks because it is too risky. Of course, these same people want to replace all pension funds with individual accounts created to invest in stocks! Because pension funds are large institutional investors, they have access to expertise and opportunities that no individual can possess. Pension funds can spread their money among many different investments in ways that individuals cannot. If pension funds did not invest in stocks, real estate and other types of equity investments as McMahon wants, there would be four very bad results: (1) Public pension funds have $2.5 Trillion in assets. If they sold all their stocks, the price of those stocks would tumble. (2) Companies would have less equity capital for economic expansion and job creation. (3) Wall Street, New York’s major economic engine, would lose money, dramatically hurting New York’s economy. (4) Taxpayers around the state would have to pay much more into the pension fund for no good reason. The whole point of a pension fund is to reduce the cost of providing pensions by investing wisely. It is absurd to suggest that public funds invest with one arm tied behind their backs. So, there.


Effective July 1, 2006, the Florida Legislature has expanded Section 784.07(2), Florida Statutes, which deals with assault or battery upon law enforcement officers, firefighters, emergency medical care providers, public transit agent employees or other specified officers. Now, the following individuals will also be covered: a non-sworn law enforcement agency employee who is certified as an agency inspector, blood alcohol analyst or breath test operator while such employee is in uniform and engaged in processing, testing, evaluating, analyzing or transporting a person who is detained or under arrest for DUI and a person licensed as a security officer, wearing a uniform that bears at least one patch or emblem that is visible at all times that clearly identifies the employing agency and that clearly identifies the person as a licensed security officer. Chapter 2006-127.


The U.S. Department of Labor, U.S. Bureau of Labor Statistics, has issued its National Compensation Survey on Employee Benefits in Private Industry in the United States. Seventy-one percent of workers in private industry had access to medical care plans, and 52 percent participated in such plans in March of 2006. Sixty percent had access to retirement plans, and 51 percent participated in a retirement plan of at least one type. Fifty-four percent of workers had access to defined contribution plans, and 43 percent participated. Other major findings include

  • Paid leave was the most commonly provided employee benefit in the private sector: paid holidays were available to 75 percent of employees and paid vacations were available to 77 percent.
  • Sixty-two percent of private establishments offered health insurance to their workers in March 2006. About half of private establishments offered retirement plans of at least one type,.
  • Most employees covered by medical care plans were in plans requiring employee contributions for both single coverage and family coverage. The employee contributions for medical care premiums averaged $296.88 per month for family coverage and $76.05 per month for single coverage.
  • Employer premiums for medical care plans averaged $266.50 a month per participant for single coverage and $617.18 for family coverage. Fifty-two percent of workers had access to life insurance and 50 percent participated.


In his President’s Column written for the Association of Benefit Administrators, Inc.’s “Insights,” Thomas J. Mackell, Jr., drops the following bombshell: it is a fairly safe assumption that defined benefit plans in the private sector have a window of survival of three to five years; in the public sector that window is five to ten years! How did we get where we are? Dr. Mackell lists a number of factors that have contributed to this state of affairs, including:

  • Some corporate and political leaders made a decision forty years ago that in the post-New Deal era things would have to change, and the seeds were sown for redefining society as we have known it.
  • Our economy has changed from one of manufacturing to one of service.
  • Portability has virtually done away with the old notion of loyalty in the workplace.
  • Technology has digitized and disaggregated old business models.
  • Policy makers have either been asleep at the switch or willing to contribute to the demise of workers’ well-being.
  • Unprecedented productivity gains have contributed to the gap between workers’ share and corporate share of those gains.
  • Free-trade agreements have been negotiated without appropriate labor and human rights protections.
  • Robust financial markets have lulled us to sleep, resulting in actuarial assumption adjustments and skewed asset decisions.
  • Recent declining and volatile markets resulted in funds playing “catch-up,” responding to more esoteric asset classes in an effort to staunch the pension funding liability crisis.

The result? -- freezing of corporate pension plans, or, worse, termination or default thereof; public sector budget cuts with attendant pressure to discontinue defined benefit plans; and, in the multi-employer arena, initiatives to eliminate defined benefit plan obligations in the collective bargaining process. However, as our readers know, Dr. Mackell never presents problems without also presenting solutions. Here is his top ten list:

1. Lobby to create a cabinet position devoted exclusively to demographics.

2. Ratchet-up education of trustees, the stewards of other people’s money.

3. Ramp-up shareholder activism.

4. Challenge pension professionals; jar them into reality and insist that they become more creative.

5. Monitor portfolios for corporate fraud.

6. Heighten awareness to counter-movements (for example, corporations suing retirees to diminish health care coverage).

7. Create risk budgets in portfolios; focus on and define liabilities and use benchmarks to assess investment managers’ accomplishments.

8. Latch on to some outrage. Remember Sarbanes-Oxley was passed by a conservative Congress and signed into law by a pro-business President because of the fury of constituents over corporate fraud.

9. There are 535 people in this country, who, if they were predisposed to the common good, could change the world. Inundate them with e-mails, letters, phone calls and requests for meetings.

10. When all else fails, follow the lessons of the 1930s, 1940s, 1960s and, more recently, the spring of 2006. Take the issues to the streets in every American city, and conduct well-organized, peaceful demonstrations evidencing the anxieties and concerns of working Americans.

Growing inequality poses a threat to our democratic society. If we ignore that fact, we must ask ourselves this question: How many more gated communities can we build before those on the outside demand to come in?


According to The Associated Press, Chicago prosecutors say a 29-year-old man traveling with his mother desperately did not want her to know he had packed a sexual aid for their trip to Turkey. So, he told security it was a bomb. The man was stopped by officials after guards found an object in his baggage that resembled a grenade. When officers asked him to identify the item, the young genius said it was a bomb. He later told officials he lied because his mother was nearby and he did not want her to hear that it was part of a penis pump. He was charged with felony disorder conduct, and faces up to three years in prison. If he does go to the big house, he better pray that the other inmates are only pumping iron.

“Everybody is ignorant, only on different subjects.” Will Rogers

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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.

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