Florida Supreme Court Rules Against Miami’s Unilateral Cuts to Police Pension

Court rules city’s Public Employees Relations Commission (PERC) overstepped bounds.

Florida’s Supreme Court has reversed a ruling that had allowed the City of Miami to make unilateral changes to a collective bargaining agreement with a Miami police union.

At issue was whether an employer must demonstrate that funds are available from no other reasonable source before unilaterally modifying a collective bargaining agreement. In 2010, facing what it deemed “financial urgency,” Miami’s legislative body voted to unilaterally change of the collective bargaining agreement with Miami Lodge 20, Fraternal Order of Police.

At the time, the city’s budget was approximately $500 million, and it faced a deficit of approximately $140 million for the 2010-2011 fiscal year. The city said that without the cuts, Miami would be unable to pay for utilities, gas, and other necessities, rendering it unable to provide essential services to its residents.

The changes included a modification of the normal retirement date and of the pension benefit formula; a cap on the average final compensation for pension benefit calculations; alteration of the normal retirement form, and modification of average final compensation. This was in addition to a cut in wages, elimination of education pay supplements, conversion of supplemental pay, and a freeze in step and longevity pay.

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In response to the proposed changes, the police union suggested raising the millage tax rate, installing red light cameras, imposing non-union employee layoffs and furloughs, freezing the current cost of living adjustment, and changing the pension funding methodology. However, the city said this “would not adequately address the shortfall because they either failed to generate enough revenue to offset the deficit or they would increase the city’s long-term financial obligations.”

The Miami legislature created the Public Employees Relations Commission (PERC)

to carry out the provisions. PERC determined that the city was facing a financial urgency that required modifications. The Union then filed an unfair labor practice charge with PERC in 2010, which was dismissed as the hearing officer ruled that the statute had been properly invoked by Miami. PERC defined “financial urgency” as “a financial condition requiring immediate attention and demanding prompt and decisive action which requires the modification of an agreement; however, it is not necessarily a financial emergency or bankruptcy.”

In 2013, after suing the city over the changes, the First District Court of Appeal upheld PERC’s decision dismissing Miami Lodge 20, Fraternal Order of Police Inc.’s unfair labor practice charge against Miami.

But the Florida high court, in its March 2 decision overruling the First District Court of Appeal, said that PERC had overstepped its bounds.

“The interpretation set forth by PERC and the First District would allow a local government, once it has declared a financial urgency, the ability to exercise a management right to unilaterally alter the terms and conditions of a contract,” said the court in its decision. “This interpretation does not comport with our acknowledgment of and respect for the constitutional right of collective bargaining and prohibition of the impairment to contract.”

By Michael Katz

Unfunded Liabilities of Largest Pension Plans in U.S. Increase, While Assets Rise

The biggest force affecting the underfunding was interest rates.

The unfunded liabilities of the US’s 19 largest pension plans rose to $189 billion, an increase of $12 billion from last year, according to a new report from Russell Investments. The shortfalls from the 19 pension funds of the nation’s largest publicly-traded corporations in the healthcare, aerospace, automotive, technology, oil and gas, logistics, and chemical sectors, rose due to a fall in the discount rates used to value liabilities.

While these large corporations, which Russell calls the “$20 Billion Club,” saw an increase in liabilities, the long-term liability trend is going lower, the report found. The 2016 total of $902 billion is below the high point of $933 billion reached in 2014. “Unless there is a substantial fall in interest rates this year, 2014 may well prove to be “peak pension,” the point at which defined benefit plan liabilities reached their high,” the report said.

Yet as liabilities rose, the report found that assets continued to grow. Asset growth would allow plan sponsors to address their collective $189 billion pension fund deficit. This would mean that with 2016 total assets less than 5% below 2014’s level, strong investment performance in 2017 could see a new high, the report said.

Pension funds were also negatively affected by mark-to-market accounting which accelerated gains and losses and contributed to higher pension costs in 2016. The fall in the discount rate and other market factors were all realized more quickly as a result of mark-to-market accounting.

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“The total loss recognized by the six corporations who use a mark-to-market approach was $9.9 billion, approximately 4% of year-end liability value. The loss recognized by the 13 corporations who do not mark to market averaged less than 2% of their liability value,” the report said.

According to Bob Collie, chief research strategist, the main reason for the decline in 2016 was a decrease of about 0.25% in the discount rate used to value liabilities. However, this decline was offset by a slight increase in plan sponsor contributions and a slight rise in investment returns.

The biggest force affecting the underfunding was interest rates, specifically the median discount rate used to value liabilities.  His accounted for the actuarial loss of $38.7 billion among the pension plans of the largest corporations.

On the asset size, the report said investment returns “were solid,” with returns ranging from 4.7% to 12% from the 18 corporations that reported returns on a calendar basis. “This was more than enough” to cover the interest cost of $31.9 billion in liability growth, the report said.

Pension contributions were another story. These varied widely among the 19 corporations, with about half making discretionary contributions in 2016 and the rest failing to make them. One reason for the differences in voluntary contributions was due to increases in the PBGC’s variable rate contribution schedule. This change gave pans a few more choices in how they addressed their underfunding situations. These changes, Collie said, meant “sponsors will increasingly choose to make discretionary contributions above the required minimum in order to reduce their funding shortfalls.”  

Looking ahead to 2017, Collie said “while the past few years have shown that interest rates have been the biggest factor driving changes in interest rates (even more than investment returns),  if we enter a rising rate environment, we could see substantial improvement in funded status. If we look, for example, at 2013’s improvement that was mainly caused by the median discount rate used to value liabilities rising from 4.0% to 4.89%. If rates rise in 2016, we’d expect to see a similar effect. The other cause of year-to-year variation is, of course, investment returns. Those are the big two.”

Collie also said contributions are important,” especially when you look at the longer term. Currently, contributions are still fairly low as many corporations continue to take advantage of the flexibility offered by funding relief to defer contributions. But, we expect to see discretionary contributions tick up as a result of PBGC premium increases, and there are signs that’s starting to happen. Overall, the pension fund situation really comes down to interest rates and investment returns,” Collie said.

When Should a Pension Plan Borrow to Fund its Liabilities?

In contrast to Russell’s latest 2016 report, pension plans in 2015 started to borrow money rather than continue with a pension deficit. In a paper written by Russell’s Jim Gannon, changes in the way the Pension Benefit Guaranty Corporation (PBGC) gave underfunded plans more flexibility in how they corrected their shortfalls. This change, which was part of the in the Bipartisan Budget Act of 2015, gave sponsors more options in determining their contribution schedules, including a reduction in  their minimum contributions to correct underfunding. But it also meant they could face higher costs from the PBGC’s variable funding option, which is a high costs for underfunded plans.

In a scenario modeling “amortization of unfunded liabilities,” Gannon used key variables (such as credit rating, interest rates, PBGC premiums) to calculate whether  the “breakeven rate” makes more sense for the corporation to either borrow or continue to fund the plan annually.

By Chuck Epstein

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