CalPERS, CalSTRS and other government
pensions
Bankruptcy judge: CalPERS pensions can be cut
A federal judge ruled yesterday that CalPERS pensions can be cut in
bankruptcy like other debt. He rejected the argument that the giant system is an
garm of the stateh with pensions protected by federal law and two state laws on
contracts and liens.
U.S. Bankruptcy Judge Christopher Klein, who has called the issue of whether
CalPERS pensions can be cut in bankruptcy a gfestering sore,h delayed until Oct.
30 a ruling on whether Stockton can exit bankruptcy without cutting
pensions.
Stockton does not want to cut pensions, arguing they are needed to be a
competitive employer, particularly for police. The city reached agreements with
three bond insurers owed $265 million, all labor unions, retirees and other
major creditors.
But Stockton could not negotiate an agreement with a lone holdout, two
Franklin bond funds owed $36 million, triggering a trial in May on the Stockton
gplan of adjustmenth to cut debt and emerge from the bankruptcy filed two years
ago.
Franklin argues that an exit plan that provides full payment of the cityfs
gmassiveh pension liability, while paying Franklin a penny on the dollar, cannot
be confirmed under the federal bankruptcy code requiring fair treatment of
creditors.
Klein issued his CalPERS decision after receiving extensive written
briefings from both sides he requested at the May trial. His lengthy oral
ruling, covering the disputed legal points in detail, may be followed by a
written decision.
gWe have a plan that proposes not to adjust pensions,h Klein said. gI have
concluded that pensions could be adjusted, at least the CalPERS contract could
be adjusted, and by inference the pensions could be adjusted.h
gWe disagree with the judgefs opinion on the issue of pension impairment,h
CalPERS said in a news release. gThis ruling is not legally binding on any of
the parties in the Stockton case or as precedent in any other bankruptcy
proceeding and is unnecessary to the decision on confirmation of the City of
Stocktonfs plan of adjustment.
gCalPERS will reserve any further comment until such time as the court
renders its final written decision. Whatfs important to keep in mind is what the
City of Stockton stated in court today: that they canft function as a city if
their pensions are impaired.h
Matthew Jacobs, CalPERS general counsel, said in a separate news release:
gThe real precedent of todayfs proceedings is that even if municipalities are
allowed to impair pensions in the rare situation of bankruptcy, cities like
Stockton can make the smart decision to protect the pension promises for their
public employees.
gThe city has made a choice to protect pensions for its public employees and
find a reasonable path forward to a more fiscally sustainable future. This is
the right decision. While we disagree with todayfs ruling on pensions, we are
hopeful that Judge Klein will approve Stocktonfs plan. Providing great services
to a city requires great employees and Stockton said today in court that it
canft function as a city if pensions are impaired.h
CalPERS has taken several steps, some going back decades, to avoid a ruling
like the one Judge Klein made yesterday.
Vallejo officials said they considered cutting pensions in bankruptcy, but
chose not to try after CalPERS threatened a lengthy and costly legal battle.
Vallejo cut deals with all creditors, avoiding a rare trial as on Stocktonfs
plan to gcram downh debt.
The Vallejo bankruptcy prompted public employee unions to back legislation
requiring cities to get permission from a state panel to file bankruptcy. Some
union officials said the threat of gpulling a Vallejoh could affect labor
contract bargaining.
The bill, AB 506 in 2011, was altered to require an attempt in neutral
mediation to reach an agreement with creditors before filing bankruptcy.
Stockton failed to get an agreement during a 90-day mediation before filing for
bankruptcy on June 26, 2012.
A month later San Bernardino made an emergency filing for bankruptcy without
first trying mediation. Then San Bernardino, saying it was in danger of not
making payroll, took an unprecedented step: skipping payments to CalPERS for a
year.
The failure to make payments gave the California Public Employees Retirement
System grounds to terminate its contract with the city, probably triggering a
deep cut in pensions for San Bernardino current workers and retirees.
Last June San Bernardino announced an undisclosed agreement with CalPERS,
reached in closed-door mediation, to pay the $13.5 million in skipped payments,
plus several million more in penalties and interest.
San Bernardino is still struggling to reach agreements with labor unions,
receiving court approval to modify a firefighter contract. City officials have
said they do not expect to have a debt-cutting plan of adjustment until early
next year or later.
In the Stockton bankruptcy, Judge Klein said during the trial in May that
one of his options was ruling on whether CalPERS pensions could be cut without
necessarily finding that Stockton pensions should be cut.
Part of his analysis yesterday that CalPERS pensions are not state
ggovernmental or political powersh protected under federal bankruptcy law is
that while state workers are in CalPERS by statute, cities choose to join
CalPERS.
Klein said California cities have the option of forming their own pension
systems, joining a county pension system, hiring a private pension provider or
withdrawing from CalPERS, if they can afford to do so.
He concluded that benefits not prescribed by state law are not ggovernmental
or politicalh powers protected by the federal bankruptcy law, but instead are
unprotected gbusiness powers.h
Klein said a CalPERS-sponsored state law preventing cities from rejecting
their CalPERS contracts in bankruptcy is gflat-out invalidh under the
constitutional gsupremacy clauseh giving federal law priority over state
law.
The judge said another CalPERS-sponsored state law that gives CalPERS a lien
on all city assets, except wages, when they declare insolvency is an invalid
attempt by the state Legislature to gedith the federal bankruptcy law.
Stockton argues that its employees and retirees have a fair share of the
bankruptcy burden with pay cuts, workforce reductions and the elimination of
retiree health care, a $545 million long-term debt replaced with a $5 million
lump sum.
Kleinfs ruling on Stockton may hinge on the cityfs decision to place
Franklin in the same class of debtors as retirees, who voted to accept the big
cut in health care with the promise that their pensions would not be cut.
The low payment to Franklin is similar to the retiree health care cut.
Franklin argues that it was gpunishedh for rejecting a city offer in closed-door
mediation and unfairly placed in the debtor class to be gswampedh by the retiree
approval of their health care cut.
The city argues that Franklin is properly in the class because most of its
debt is unsecured. After the judge ruled that Franklinfs collateral (two golf
courses and a park) were valued at $4 million, Stockton amended its plan to pay
that amount.
But Franklin wants payment for the remaining $32 million of unsecured
debt.
Reporter Ed Mendel covered the Capitol in Sacramento for nearly three
decades, most recently for the San Diego Union-Tribune. More stories are at
Calpensions.com.
Posted 2 Oct 14