'Sue Me' Over Pension Cuts?

Leo Kolivakis's picture

Darrell Preston of Bloomberg reports, Christie Says ‘Sue Me’ as Pensioners Challenge Cuts:

New
Jersey Governor Chris Christie said he doesn’t mind breaking promises
to pensioners to close a $10.5 billion budget deficit -- even if they
sue.

 

“I have bigger issues than who
sues me,” said Christie, 48, a Republican and former federal prosecutor
who wants to end cost-of-living increases for retirees. “Get in line.”

 

Public
workers in Colorado, South Dakota and Minnesota are already suing their
states, which are among 18 that want to pare pension costs by
increasing employee contributions, raising the retirement age or curbing
cost-of-living increases.

 

“We
believe it’s unconstitutional,” said Gary Justus, 63, a retired
mathematics teacher in the Denver public schools who’s a plaintiff in
the Colorado suit. “These are contracts that I and 100,000 other
retirees worked for.”

 

U.S. cities, counties and states face a $3.6 trillion gap
between their pension assets and what they’ve promised retirees,
according to a study by Robert Novy-Marx of the University of Rochester
and Joshua Rauh at Northwestern University. States must also contend
with $140 billion of budget deficits next fiscal year, according to the
Center on Budget and Policy Priorities, a Washington research group.

 

Pressured to cut spending and not raise taxes, public officials are focusing on pensions, said Ron Snell, senior fellow at the National Conference of State Legislatures.
State plans cover 24 million active and retired workers, according to
the Denver-based organization, about 8 percent of the U.S. population of
309 million in 2010.

 

Out of Proportion

 

Christie,
saying New Jersey’s retirement benefits are “wildly out of proportion
with the private sector,” proposed eliminating automatic cost-of-living
increases last year. The state has also stopped paying into its
pensions.

 

Illinois lawmakers lowered retirement benefits for
new workers last year. The state will borrow $3.7 billion this month for
its fiscal 2011 contribution, the second consecutive year it sold bonds
to make payments.

 

States exhausted “more palatable” actions
such as cutting staff and expenses, Fitch Ratings said Jan. 25 in a
report that gave a negative outlook to the state-debt sector. They face
the “most difficult” fiscal year since the U.S. recession began in
December 2007, Fitch said, as federal stimulus payments end.

 

The
strain of funding pensions intensified as markets fell during the
18-month economic contraction, the longest since the 43-month slump of
the Great Depression, according to the National Bureau of Economic
Research. Asset values fell to about 76 percent of obligations in 2009
from about 82 percent in fiscal 2008, according to data compiled by
Bloomberg.

 

Least-Sound System

 

Illinois has the
least-sound system, with a funded ratio of about 51 percent, followed by
Oklahoma and Kentucky, according to the Bloomberg data. Missouri,
Oregon and Arkansas are in the middle with about 80 percent, a ratio
considered adequate by actuaries.

 

The “rapid” growth of unfunded
obligations prompted Moody’s Investors Service to issue a combined
measurement of states’ debt and pension liabilities for the first time
on Jan. 27 so investors can compare them with companies. Pressure to
fund retirements will continue to have a “negative impact” on state
credit ratings, Moody’s said.

 

The
Novy-Marx and Rauh study puts unfunded pension liabilities for states
alone at $3 trillion. It’s higher than the $1 trillion projected a year
ago by the Pew Center on the States. The authors say governments
understate liabilities because of over-optimistic assumed investment
returns.

 

Bankruptcy Proposal

 

Former U.S. House Speaker
Newt Gingrich, a Republican and potential 2012 presidential candidate,
has proposed allowing states to restructure their finances in
bankruptcy-like proceedings giving them more leverage in bargaining with
employees over wages and pensions.

 

More than 20 states considered changes to pension plans last year, according to the National Conference of State Legislatures.

 

“Too
many proposals to count” have been introduced so far in 2011, said
Snell, the National Conference of State Legislatures’ pension expert.
Lawmakers in at least a dozen states, including California, New York and
Ohio, have “serious” proposals, he said.

 

Florida
Republican Governor Rick Scott, facing a $3.6 billion deficit, said
yesterday that state employees should contribute to their pensions. New
Jersey Senate President Stephen Sweeney, a Democrat, said on Jan. 31
that he’ll introduce legislation that goes beyond Governor Christie’s in
trimming benefits.

 

Real Savings

 

“We’re looking at a
year of trying to make widespread and significant changes,” said Snell.
“Some of these can provide real savings, if they can be done.”

Some
states may switch from plans that provide specific benefits to
so-called defined-contribution systems, which are like 401(k) plans used
at companies.

 

Three states -- Alaska, Nebraska and Michigan -- have
required them, and Utah will beginning July 1. Six make them optional.

 

New
Jersey’s Christie said in an interview that taking away cost-of-living
increases for retirees would break a promise. It’s necessary, he said,
because the state’s pension system is $46 billion short of funds.

 

“There
is no alternative,” he said at Bloomberg’s New York headquarters on
Jan. 25. Previous officials “knew when they promised it they couldn’t
afford it.”

 

Missed Contributions

 

Christie’s statements don’t sit well with Steve Baker, a spokesman for the New Jersey Education Association,
whose 200,000 members are covered by the state pension. He said the
state failed to make contributions to its pension funds in 13 of the
past 17 years, including two under the current governor.

 

“All
his tough-guy, let-them-sue-me rhetoric fails to solve the problem,”
said Baker. “Until the governor wants to sit down with all the parties
and come up with a solution that solves the problem, the governor isn’t
doing his job.”

 

The lawsuits filed in Colorado, Minnesota and
South Dakota challenge changes in cost-of-living adjustments, according
to court documents.

 

Colorado eliminated annual increases of at
least 3 percent, according to court records. Justus, the retired Denver
teacher, said losing the adjustments would erode his purchasing power by
35 percent over 30 years. He estimates it would cost all Colorado
workers in the plan $40 billion.

 

Setting Precedent

 

“What
allows the state to abrogate that contract?” said Justus, who lives in
Evergreen, Colorado. “If it’s allowed to stand, it will set an
incredible precedent for the state to cut benefits again.”

 

Colorado’s
cuts, which included higher participant contributions and an increased
retirement age, were in the public interest after investment losses in
2008, said Gregory Smith, general counsel for the Public Employees’
Retirement Association, known as PERA.

 

“The legislation was
passed to keep the fund from running out of money,” Smith said in via
telephone. “We had to reduce the payouts by the fund immediately.”

Joe Kafka, a spokesman for South Dakota
Governor Mike Rounds, declined to comment on the lawsuit. Attorney
General Marty Jackley’s spokeswoman, Sara Rabern, declined to comment.
Minnesota Governor Mark Dayton’s spokesman, Jeremy Drucker, didn’t
return a phone call and e-mail seeking comment.

 

No Rulings Yet

 

None of the three lawsuits has been ruled on and there is little precedent for some of the proposed pension changes, said Amy Monahan, a professor at the University of Minnesota Law School in Minneapolis, who studies the legality of changing pension benefits.

 

“A
lot of states are flying blind because there aren’t a lot of cases,”
said Monahan.

 

“There is so much legal uncertainty about what is
permitted.”

California and Illinois have constitutions that make
it difficult to change benefits, said Monahan. Others, such as Maine
and Connecticut, have fewer legal constraints, she said.

 

Courts have found that pensions are a property right, said Stephen Pincus, an attorney with Stember Feinstein Doyle & Payne
in Pittsburgh, who brought the three lawsuits. The key to whether
existing benefits can be cut will be language that determines if a
pension is a legal contract and when the agreement becomes property, he
said.

 

A state may be able to change the law if there is a “real
substantial likelihood the government cutting is on the edge of
financial ruin,” according to Pincus.

 

“The state has the power
to protect its citizens,” said Monahan. “If your fiscal situation looks
dire, you could do it to stay solvent.”

 

States shouldn’t be allowed to make pension cuts a priority over other liabilities, said Pincus.

 

“It’s
our position that a state can’t pick and choose obligations it doesn’t
want to pay,” said Pincus. “Are you going to creditors and saying you
can’t pay your 30-year bonds?”

 

The cases are: Gary R. Justus et el v. State of Colorado et el, 2010CV1589, District Court, Denver County, Colorado; Howard Swanson et el v. State of Minnesota et el, 62-CV-lO-5285, Second Judicial District, Ramsey County, Minnesota; Merton B. Tice Jr. et el v. State of South Dakota et el, Civ No. 10-225, Sixth Judicial Circuit, Hughes County, South Dakota.

Here
is my take on this situation. States are doing whatever it takes to
shore up their pension plans, including raising contributions, raising
the retirement age, cutting cost of living adjustments and if need be,
cutting benefits. As I stated before, when the money runs out,
everything is on the table.

But there is another side to this
story. There is an ideological war being fought between private
interests and the public sector. You only have to read this Economist blog post
on pension liabilities to get a flavor of where the debate is heading.
All of a sudden, public pensions have become public enemy #1 and
politicians are scrambling to slash pension costs. In some cases, this
is justified but in others it's pure fear mongering at its worse.

It
seems like there is a concerted effort to weaken public pension plans. I
spoke to a senior Canadian pension fund manager who told me he worries
that the Canadian defined-benefit model will not survive. I'm not going
to get into details, but a huge part of the problem centers around
compensation and how the media perceive compensation at public pension
funds.

Canada is much better than the US in terms of compensating
public pension fund managers. A lot of US state pension plans are run by
civil servants who rely entirely on pension consultants to make
investment decisions. And those that don't are having a hard time
attracting and retaining competent pension fund managers because their
compensation is ridiculously low. With such flawed governance models, it
shouldn't surprise anyone to see so many state pension funds under
water.

And now we have politicians reneging on the pension
promise telling pensioners 'sue me' if you're not happy. While I
understand Governor Christie's predicament, he should be a little more
humble and admit that bad political decisions and terrible governance
played a huge role in New Jersey's pension debacle. If it was his mother
or father who worked all their lives as a teacher, policeman,
firefighter or civil servant and were now collecting a state pension, I
doubt he would be so cavalier with the tough-guy rhetoric.