1. National Center for the Study of Collective Bargaining in Higher Education and the Professions – 36 th Annual Conference April, 2009 – Updated, August 2011 Panel on Legislative Strategies and Tactics Presentation by Richard Winsten, Esq. Meyer, Suozzi, English, Klein PC
2. State Constitution Protections for Benefits Reform options in New York, Illinois, Alaska, and Arizona are quite limited. The only option for reform would be to amend the retirement plan with respect to newly-hired employees. Employees who are already in the system could not be subject to any plan amendment that results in a lower benefit than that calculated under the terms of the plan at their date of enrollment. The only possibility for changing existing employees’ retirement benefits would be to have each such employee voluntarily agree to plan changes, or for changes to be made pursuant to the state’s inherent police power. Public Pension Plan Reform: The Legal Framework Amy B. Monahan, Legal Stud Res. Paper 10-13, Univ of Minnesota
3. Constitutional Protections cont: States generally protect public pensions under either a contract-based theory or a property-rights theory, while one state does so under principles of promissory estoppel. See Monahan Report Above Cited
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5. The 2007-08 Session of the Legislature The 2007-08 Session of the Legislature Over 300 retirement bills introduced in the Senate and Assembly at the request of public employers, unions, and others
11. OPPOSE UNILATERAL IMPOSITION OF TIER 5 The New York State AFL-CIO, representing over 2 million union members, their families, our retirees and their families, strongly opposes the unilateral imposition of Tier 5 or any other reduced pension structure on any public employees or bargaining units that have not reached agreement with the Governor and Legislature. It has always been the unified position of the affiliates of the NYS AFL-CIO that until all affected unions have reached agreement with the Governor and Legislature, that Tier 5 should not be unilaterally imposed on any union. Although several unions have been able to reach agreement on terms for implementing Tier 5, to date, many representatives of employees in state service, school districts, and local governments whose needs have not been met are still attempting to negotiate an agreement. There are many different plans based on the unique employment needs of both the affected public employees as well as the employer. These various plans have different benefit and contribution structures that have evolved over a long period of time and are in place for good reason. Placing a universal template of Tier 5 over many of these plans ignores both the unique job requirements of many public employees and worse, is a disservice to the hard working, dedicated public workforce that provides public protection, health and safety, education, transportation, law enforcement infrastructure and various other vital public services. The NYS AFL-CIO strongly urges the Legislature and Governor to negotiate the entire Tier 5 structure out with every affected public employee organization representative and until all issues have been resolved, limit any immediate legislation to those unions that request to be included. For further information contact the Legislative Department at 518-436-8516. Memo #22/2009 opeiu-153
Author’s Note To the Labor Union Affiliated Reader : Since I made this presentation in 2009, the subject of public employee pensions and defined benefit pensions have taken center stage for policy makers and academics. The recent years’ near collapse of the financial system has triggered efforts to cut pension benefits, reduce public employer pension contributions, and cut taxes. My view is certainly that this punishes unfairly the hard working citizens who did not cause the financial crisis. Unfortunately, sacrifice to repair the damage has not been shared between innocent victims and the financial malefactors who played fast and loose with other people’s money – particularly public pension funds in NYS that lost over $100 billion in asset value during the crisis. This power point is intended as guide to strategy and tactics when thinking about public pension legislation at the State or Local government level. The examples are from New York State, and therefore, all examples will not apply in every other state or locality in the United States. The author recommends no particular strategy or tactic as a blanket solution. Rather this is a box of tools to be used thoughtfully where appropriate. Finally, the presentation probably contains a pro public employee, pro defined pension benefit bias. Those are certainly my biases. I hope that public employer representatives particularly those who defend defined benefit pensions might also find it useful. I hope and expect that defined benefit pensions in the New York public sector will continue and be a bulwark against the erosion of the retirement security of all Americans. Richard Winsten, August 2011