Employment & Labor Law for Public Safety Agencies

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Retirement Rights and Benefits

     California enacted the Employee Pension Reform Act of 2013 (PEPRA) in an attempt to curb what were seen as pervasive abuses and underfunding in public pension systems, including those governed by the County Employees Retirement Law of 1937 (CERL), Gov. Code 31450. Public employees and public employee organizations in two counties challenged the constitutionality of PEPRA as applied to certain CERL plan members who were hired before PEPRA’s effective date (legacy members). An intermediate California appeals court rejected an argument that the pension boards possess the ability to include additional pay items in compensation earnable, unmoored by the language of CERL, and then remanded for a determinations of the reasonableness of PEPRA’s detrimental changes when applied to the vested rights of legacy members. The court examined the statutory amendments with respect to in-service leave cash-outs; express exclusion of so-called terminal pay from compensation earnable, express exclusion or payments for additional services rendered outside of normal working hours, whether paid in a lump sum or otherwise, from compensation earnable,  and exclusion from compensation earnable of “[a]ny compensation determined by the board to have been paid to enhance a member’s retirement benefit.” Alameda County Deputy Sheriff’s Association v. Alameda County Employees Retirement Association, # A141913, 2018 Cal. App. Lexis 12.

     The plaintiff’s job as a Naval Submarine base firefighter required a security clearance. The Navy revoked his clearance because of concerns about his personal finances. He was offered the option to retire, rather than be removed, and he chose to do so believing that his retirement benefits were at risk. In fact, he would have received those benefits regardless of whether he retired or was terminated, under 5 U.S.C. 8312-8315. After learning that his benefits were not at risk, he appealed to the Merit Systems Protection Board, claiming that his retirement was involuntary. Based on the claim that an agency manager had told him he would lose his benefits if he were terminated, the Board held that an agency is required to provide employees with adequate information to make an informed retirement decision but that, if the Navy would have removed him, he was not entitled to reinstatement or back pay. A federal appeals court dismissed his petition for lack of jurisdiction. The Board’s ruling was not a “final decision,” but required the Navy to decide whether and when he would have been terminated if he had not retired, and this had not been determined. Morrison v. Dept. of the Navy, #16-2542, 2017 U.S. App. Lexis 24082 (Fed. Cir.).

     A male flunked out of the FBI Academy by failing by one push-up to complete the 30 push-ups required of male trainees. He sued for sex discrimination on the basis that female trainees were only required to do 14 push-ups. The trial court granted summary judgment to the plaintiff on his sex discrimination claim, and the defendant appealed. The federal appeals court held that an employer does not violate Title VII when it uses physical fitness standards that distinguish between the sexes on the basis of their physiological differences but impose an equal burden of compliance on both men and women, requiring the same level of physical fitness of each. Because the trial court failed to apply this rule in reaching its decision, further proceedings were required. Bauer v. Lynch, #14-2323, 2016 U.S. App. Lexis 379 (4th Cir.).

     A city filed for bankruptcy. Under its existing collective bargaining agreement with a police union, the city paid the full premium cost for retirees and employees of any medical plan offered through the California Public Employees’ Retirement System (CalPERS or PERS) and paid the full premium for other city retirees, so it was subject to a state statute that establishes a minimum level of employer contribution toward medical premiums. The city sought approval from the bankruptcy court to reject its labor agreements. While this motion was pending, the union and the city reached an agreement and the city voluntarily dismissed its motion to reject the collective bargaining contract. Under the agreement, health insurance benefits were reduced. After months of negotiations toward a superseding agreement, the city declared an impasse. The union filed suit, alleging that the city was not bargaining in good faith, in violation of a state statute. An intermediate state court of appeals upheld the denial of the petition. The union did not show that its members had a vested right to a full premium. Substantial evidence supported findings that the city did not engage in surface bargaining or rush to declare an impasse. Vallejo Police Officers Association v. City of Vallejo, #A144987, 2017 Cal. App. Unpub. Lexis 5816, 2017 WL 4182785.

     Because of a city’s dire financial situation, the state of Michigan placed it under the supervision of an emergency manager under the authority of a state statute. The emergency manager, with the approval of the state’s treasurer, issued a series of orders temporarily replacing city retiree health-care benefits with monthly stipend payments that retirees could use to buy individual health-care insurance. The retired employees filed a federal civil rights lawsuit claiming violations of the Contracts Clause of the U.S, Constitution, the Due Process Clause of the Fourteenth Amendment, and the Takings Clause. A federal appeals court rejected these claims, holding that an alleged Contracts Clause violation cannot be the basis for a federal civil rights lawsuit under 42 US.C. Sec. 1983. Further, as the other federal constitutional claims for deprivation of property derived from contract, the court found that a state contract lawsuit would be sufficient to protect any contractual property rights the retirees might have. As the claims failed on their merits, the appeals court found it unnecessary to rule on an asserted Eleventh Amendment immunity defense. Kaminski v. Coulter, #16-1768,  865 F.3d 339 (6th Cir. 2017).

      A county offered retirement incentives to employees age 65 or older. Under one package, retirees were entitled to five years of supplemental health insurance (secondary to Medicare coverage) through a private insurer and could return to work, part-time, as at-will employees. The private health insurer later informed the county that if retirees working as part-time employees remained on the plan, the plan would no longer qualify for special exemptions under federal law and the county’s costs would skyrocket. The county notified all rehired retirees who were covered by the supplement insurance that their employment would end. The county was entitled to summary judgment on terminated employees’ age discrimination claims under the Age Discrimination in Employment Act and the equal protection clause. The key criterion that distinguished the terminated employees from all other county employees was not their age but rather their participation in the health insurance plan at issue.  The county's action was rationally related to preserving supplemental insurance coverage for its retirees while avoiding further financial hardship, and there was no evidence that the county engaged in any prohibited stereotyping. Carson v. Lake County, #16-3665, 2017 U.S. App. Lexis 13494 (7th Cir.).

     The plaintiff had been employed as a city police officer since 1995. In 2013, a Memorandum of Finding was sustained against him on allegations that he failed to properly investigate and report an incident of sexual abuse against a girl the year before. The police chief recommended that he be terminated. Before a hearing could be held on his proposed termination, he was granted disability retirement for a back injury sustained while on duty.

      He then requested his retirement identification badge and that the badge include a Carry Concealed Weapon (CCW) endorsement. This request was denied because the city and police chief did not consider him to be “honorably retired” as that term was defined in Penal Code section 16690. They also argued that he not entitled to a hearing to dispute the finding. He sued, contending he was honorably retired and entitled to a CCW endorsement, and if the endorsement was denied for cause, he was entitled to a good cause hearing. An intermediate California appeals court upheld the trial court’s ruling that the defendants could deny the CCW endorsement for cause but that the defendant was entitled to a good cause hearing if it was denied. Bonome v. City of Riverside, #E064925, 10 Cal. App. 5th 14, 215 Cal. Rptr. 3d 654, 2017 Cal. App. Lexis 264.

     Current and former federal employees assigned to work in non-foreign areas outside of the contiguous U.S. received, in addition to their normal salaries certain cost-of-living allowances (COLAs). They sued, complaining that regulations excluded those COLAs from the formula used to calculate their retirement and other employee benefits. They claimed that this exclusion was discriminatory under Title VII, as well as arbitrary, capricious, and contrary to legal requirements under the Administrative Procedure Act. Upholding the dismissal of the lawsuit, a federal appeals court found that the trial court was correct in concluding that the disparate impact argument raised by the plaintiffs was foreclosed by the location-based safe harbor provision of 24 U.S.C. 2000e-2(h). Further, they did not properly exhaust their administrative remedies on their disparate treatment claims. Other, non-discrimination, claims were barred by the Civil Service Reform Act. Rodriguez v. United States, #15-2178, 2017 U.S. App. Lexis 5235, 129 Fair Empl. Prac. Cas. (BNA) 1857, 41 I.E.R. Cas. (BNA) 1706 (1st Cir.).

     California firefighters and the union representing them sued the California Public Employees’ Retirement System (CalPERS) to continue to allow eligible public employees to purchase at cost up to five years of non-qualifying service credit (airtime) to increase pension benefits paid in retirement, by increasing their service credit. A state statute eliminated this right as of January 1, 2013. The plaintiffs argued that this violated the contracts clause of the state constitution. An intermediate state appeals court rejected this claim. The changes in the statute governing airtime service credit were wholly reasonable and carried “some material relation to the theory of a pension system and its successful operation.”  The plaintiffs were entitled only to a “reasonable” pension, not one providing fixed or definite benefits immune from modification or elimination by the governing body, and did not show that elimination of their right to purchase airtime credit cost them their right to a reasonable pension. Cal Fire Local 2881 v. California Public Employees' Retirement System, #A142793, 2016 Cal. App. Lexis 1151.
     A County Correctional Officers Association (CCOA) appealed a judgment in favor of a county in a dispute over pensions payments, specifically, cost-of-living adjustments (COLAs), for its members. Under the California Public Employees’ Pension Reform Act of 2013 (PEPRA), limits on any government contributions to pensions take effect after 2018. After the county reduced the COLA contributions it had been making, CCOA contended, in effect, that PEPRA shielded its members from any such reductions until 2018. Rejecting this argument, an intermediate state appeals court said that "PEPRA was intended to rein in what was perceived by the Legislature to be overly generous retirement packages for public employees, but delayed the effective date of some provisions to ease the transition and allow some changes to be negotiated gradually. It was not designed to shield compensation packages that were already subject to reduction under prior laws, specifically” a 1937 statute, the County Employees Retirement Law (CERL) under which a county had the power to change the cost-of-living adjustment (COLA) before 2012. San Joaquin County Correctional etc. v. County of San Joaquin, #CO79413, 2016 Cal, App. Lexis 1111.
     Back in 1980, a city added a cost-of-living adjustment (COLA) to its Fire and Police Pension Fund. In 2014, after having previously created a fixed annual 3% increase in retirement benefits, the city amended the COLA to a lower, variable annual increase. Participants in the fund challenged this change, claiming that it was a violation of the Contract Clause of the U.S. Constitution, depriving them of the expected higher COLA. Upholding the dismissal of this claim, a federal appeals court ruled that there was no unmistakable evidence of the city’s intent to be bound to the fixed COLA, because the COLA was neither vested nor accrued within the meaning of the City Code. In the absence of some clear indication that the legislature intends to bind itself contractually, a statute does not create a contractual relationship. The fact that the Fund described the fixed three-percent COLA as “guaranteed” when enacting a 2000 amendment did not prove that the city intended to be bound to the fixed COLA. Frazier v. City of Chattanooga, #15-6405, 841 F.3d 433 (6th Cir. 2016).
    The plaintiff began working as an Immigration Inspector with the Immigration and Naturalization Service of the Department of Justice in 1987. From 1988-2000, she served as a Customs Inspector with the Customs Service of the Department of the Treasury. From 2000 forward, she was employed in various Instructor positions at the Federal Law Enforcement Training Center (FLETC) providing training to federal criminal investigators and law enforcement officers. In 2012, she requested review of her employment history so that she could obtain Customs Officer retirement credit for her past service with INS and Customs. Under federal law, certain groups, including firefighters and law enforcement officers who have served in physically rigorous jobs can receive enhanced retirement benefits including eligibility to retire with an annuity at an earlier age than many other federal employees and eligibility to retire based on fewer years of service. Those provisions were extended to Customs and Border Patrol Officers in 2008. Rejecting her plea that those provisions be applied to her Customs Service employment, the Merit Systems Protection Board and Federal Circuit ruled that amendments to the law did not provide for "retroactive service" credit for work performed before July of 2008. Fitzgerald v. Dep't of Homeland Sec., #15-3154, 2016 U.S. App. Lexis 17132 (Fed. Cir.).
     A retired police officer elected to pay for retiree health coverage through a group plan offered by the city which had employed him. It was administered by Blue Cross. When he turned 65, he was getting medical care for congestive heart failure and severe osteoarthritis of the spine. Blue Cross started denying his claims based on the failure to provide them with a "record of the Medicare payment." He had no Medicare coverage as he had never paid into Medicare and his employee group had not opted to obtain Medicare coverage. He never claimed to have Medicare coverage. The city did start to participate in Medicare, but that was after he retired. The State Employees' Insurance Board determined that his Blue Cross retiree health insurance was the secondary payer to Medicare, even though he had no Medicare. He sued the city, arguing that it had broken an agreement to provide him with lifetime health benefits upon retirement. The Alabama Supreme Court upheld summary judgment for the city. Even if the statements in the employee handbook created an employment agreement, nothing in the handbook could be interpreted as promising health benefits to retirees much less definite vested lifetime benefits. Boman v. City of Gadsden, #1150987, 2016 Ala. Lexis 102.
     A retired California city manager sued to challenge a decision of the California Public Employees’ Retirement System (CalPERS) that significantly reduced his expected retirement benefit. An intermediate California appeals court agreed with the trial court that the greater base salary in the plaintiff's March 2007 employment agreement did not qualify as his pay rate for the purpose of calculating the amount of his retirement benefit because that salary was not paid pursuant to a publicly available pay schedule. As a result, the plaintiff had no right to have his retirement benefit calculated based on that greater base salary. Tanner v. CalPERS, #C078458, 248 Cal. App. 4th 743, 2016 Cal. App. Lexis 520.
     A man who worked for many years for the Customs and Border Protection service participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He applied for a retirement annuity. By law, his retirement annuity had to reflect his highest average annual pay, calculated on the basis of three consecutive years. Calculations for a customs officer such as the plaintiff should also include overtime pay up to a maximum of $17,500. The Office of Personnel Management (OPM), did not include anything close to $17,500 in overtime pay although the plaintiff claimed that he received more than $17,500 in overtime pay in the years in question. The Merit Systems Protection Board (MSPB) upheld the OPM’s calculation. A federal appeals court vacated the ruling, noting that the record i was internally contradictory about what overtime pay the plaintiff received, but that neither the OPM or the MSPB sought further information, such as pay stubs, that might definitively resolve the issue. Further proceedings were therefore required. Grover v. Office of Pers. Mgmt., #15-3160, 2016 U.S. App. Lexis 12978 (Fed. Cir.).
     A Massachusetts police officer was convicted of 21 counts of unauthorized access to a computer system. On the same day, he filed an application for voluntary retirement. The computer belonged to the state human resources division. Gaining the unauthorized access, he viewed the civil service promotional examination scores of twenty-one other police officers, including four officers who were his direct competitors for a promotion to the position of captain in the police department. In order to view the examination scores of these other officers, he created a distinct user account for each officer, using the Social Security numbers and birth dates of the officers. A public employment retirement commission found that the criminal convictions related to his office or position and that, therefore, he was not entitled to receive a retirement allowance under the terms of a state statute. A trial court ruled that forfeiture of the plaintiff's lifetime retirement allowance was excessive and violated the excessive fines prohibition of the Eighth Amendment. The highest court in Massachusetts agreed, finding that the mandatory forfeiture of a public employee's retirement allowance upon conviction of a crime “involving violation of the laws applicable to his office or position” constituted a fine for purposes of the Eighth Amendment, and was not proportional to the gravity of the offenses the plaintiff was convicted of. Pub. Employee Ret. Admin. Comm’n v. Bettencourt, #SJC-11906, 474 Mass. 60, 47 N.E.3d 667 (2016).
     A trial court should not have directed the Board of the Los Angeles Department of Fire and Police Pension Commissioners to set the maximum subsidy contributed by the city to retired firefighters and police officers insurance premiums without regard to later ordinances freezing the subsidy. The ordinances did not show that there was a legislative intent to create a vested right to a Board determination of the amount of the subsidy. The city council retained the final authority to control the amount of the subsidy. Fry v. City of L.A., #B259791, 245 Cal. App. 4th 539, 2016 Cal. App. Lexis 175.
     A retired police sergeant was issued a retired officer identification card with no expiration date upon his retirement in 2004. In 2011, he applied for a replacement card since his had broken. The city's police commissioner denied the request, stating that the plaintiff had not met the "standard set by the Department." The Massachusetts Supreme Judicial Court ruled that the plaintiff was entitled to receive a replacement ID card since the commissioner had abused his discretion in finding that he had not met the standard for the card. The plaintiff had been cleared of any wrongdoing in connection with the citizen complaint that was pending when he retired. Frawley v. Police Comm’r of Cambridge, #SJC-11903, 473 Mass. 716, 46 N.E.3d 504 (2016).
     A provision of the Illinois state Constitution provides that "Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired." The state legislature passed a law reducing certain pension benefits provided by four City of Chicago employee pension plans, based on the fact that contributions from employees and the city were inadequate to provide the promised benefits. The Illinois Supreme Court declared that law unconstitutional and unenforceable in violation of the state constitutional pension provision. Jones v. Mun. Employees' Annuity & Benefit Fund, #119618, 2016 IL 119618, 2016 Ill. Lexis 276.
     A city sought to compel the city's employee retirement system to increase employee's contributions to their retirement fund to help pay for an $800 million investment loss the fund had suffered. Four public employee labor unions intervened in the case, echoing the arguments made by the retirement system as to why the city's request should be denied. The case was settled, with the city agreeing not to seek to make the employees pay for past unfunded accrued actuarial liabilities, and to meet and confer about any future changes. The unions sought to recover $1,785,147 in public interest attorneys' fees under a California state statute. An intermediate California appeals court upheld the denial of such a fee award when the unions failed to show that their intervention was necessary to the outcome of the case, or that the venue and discovery motions they filed had any significant impact on the litigation. San Diego Municipal Employees Assoc. v. City of San Diego, #D066886,244 Cal. App. 4th 906, 2016 Cal. App. Lexis 94.
     A city tried to terminate a retired employee's health plan coverage and require him to accept Medicare based on the adoption of an ordinance mandating that all retirees had to apply for Medicare when they reached the age of 65. The Louisiana Supreme Court ruled that the city could not do this as the plaintiff had a vested right under his contract with the city to continue to participate in the health plan and he retired before the effective date of the ordinance. His retirement benefits were a form of deferred compensation for the services he gave the city. Born v. City of Slidell, #2015-C-0136, 2015 La. Lexis 2184.
     Former police officers and firefighters who had been employed by local public agencies contended that the California Public Employees' Retirement System should be paying them additional enhanced retirement benefits under the Public Employees' Retirement Law, Gov. Code section 2000 et seq., based on either additional retirement service credit they had purchased or military service credit. They were denied the extra benefits because they received disability retirement benefits before age 50. An intermediate California appeals court rejected most of their claims, finding that neither the statute nor their contracts entitled them to the additional retirement benefits they sought. The court also rejected constitutional claims for violation of due process or equal protection. But the court allowed claims to go forward for rescission and breach of fiduciary duty, based on the plaintiffs' assertion that the defendant retirement system improperly failed to disclose the potential loss of the value of purchased service credit if plaintiffs suffered disability, Marzec v. CalPERS, #B246667, 236 Cal. App. 4th 889, 2015 Cal. App. Lexis 393.
    A former employee of a Sheriff's Department was entitled to receive a disability pension of half his prior salary. Based on his 34 years of service, he was receiving an additional amount increasing his pension to the amount he would have received as a service pension. The IRS rejected his argument that the entire amount of his retirement allowance should be regarded as excluded from taxation because it was a workers' compensation program. The Tax Court and a federal appeals court held that the additional amount of his retirement allowance exceeding what he would have received based solely on his disability was taxable. The additional amounts were not paid on the basis of his injuries, but solely on the basis of his years of service, and therefore were taxable. Sewards v. CIR, #12-72985, , 2015 U.S. App. Lexis 7821 (9th Cir.).
     A town had adopted the requirements of a state statute under which it had to contribute over 50% of the health insurance premiums of all retired town employees. Before employing the plaintiff, however, the town also adopted a policy under which it only contributed to retirees' group health insurance premiums if an employee retired after at least ten years of service with the town. As a result, the town found the plaintiff ineligible for a contribution to her health insurance premiums when she retired because she had worked for less than ten years. The highest court in Massachusetts found that the state statute governed both whether and in what amounts the town had to contribute to a retiree's health insurance premium, and that the policy requiring a minimum term of service was invalid since it contradicted the statute. Galenski v. Town of Erving, #SJC-11772, 471 Mass. 305, 2015 Mass. Lexis 170.
     A number of retired D.C. Metropolitan police officers were later rehired by the D. C. Protective Services Division, an agency charged with protecting D.C. owned property and government buildings. They received salaries for their new jobs and pension benefits from their former jobs. A provision of the D.C. statutes, however, aimed at preventing so-called "double dipping," required that their current salaries be reduced by the amount of their pensions. A federal appeals court upheld a ruling that the salary reductions did not violate the Public Salary Tax Act of 939, 4 U.S.C. 111(a), a statute that only permitted states or D.C. to "tax" compensation paid to federal employees if that tax did not discriminate against federal employees. The court ruled that the salary reduction provision was not a "tax" but instead reduced D.C.'s total expenditure on salaries. The amount of the reduction was not collected through normal taxation mechanisms and did not raise revenue, but only lower expenditures. Cannon v. Dist. of Columbia, #14-7014, 2015 U.S. App. Lexis 6320 (D.C. Cir.).
     The state of Illinois has five separate state-funded retirement systems for various public employees, all providing traditional defined benefit plans that were covered by a pension protection clause in the state constitution. The state legislature enacted amendments to the state pension code that lowered the amount of retirement annuity benefits for persons who first became members of four of those retirement systems before January 1, 2011. The Illinois Supreme Court upheld a ruling that the amendments violated the pension protection clause of the Illinois Constitution and therefore should be permanently enjoined. The court commented that it recognized the financial difficulties which state government had recently been facing but that those difficulties did not alter preexisting pension obligations. In re Pension Reform Litig., #118585, 2015 IL 118585, 2015 Ill. Lexis 499.
      Two county employees sought a mandamus order requiring the county employees' retirement association to allow them to buy retirement service credit for military service as midshipmen at the U.S. Navy Academy. The state intermediate appeals court ordered the order issued. It ruled that the terms "public service" and "military service" in the county's employee retirement law included such service at the Academy, and that the employees were entitled under state law to purchase such retirement service credits. Lanquist v. Ventura County Employees' Retirement Association, #B251179, 2015 Cal. App. Lexis 239.
     San Francisco city and county voters passed a ballot initiative under which the payment of supplemental cost of living allowance (COLA) to retired city and county employees on the retirement fund being fully funded based on the market value of the assets for the prior year. A political action committee representing the retired city employees' interests sought to invalidate that initiative as an illegal impairment of vested contractual rights in violation of the U.S. and California Constitution's contract clauses. An intermediate state appeals court ruled that the full funding requirement could not be enforced as to current city employees and those who retired after the supplemental cost of living allowance went into effect in November, 1996 pursuant to an earlier initiative. However, city employees who retired before that date had no vested contractual rights to the supplemental COLA payments, so the initiative could be applied to their pensions. Protect Our Benefits v. City and County of San Francisco, #A140095, 2015 Cal. App. Lexis 269.
    A Wisconsin county paid pensions to its retired employees that were calculated by multiplying their final salary by a percentage known as a multiplier and then multiplying the result by the employee's years of service. An ordinance passed in 2011 reduced the multiplier to 1.6 percent from 2 percent for all county service performed on or after its effective date. A county employee and her union claimed that this was a breach of contract because she had a vested right to have the higher multiplier applied to her post-2011 service, and that she did not consent to the reduction. The Wisconsin Supreme Court rejected these arguments, because the amended ordinance only applied to future service credits not yet earned, and any benefits already accrued were protected and not diminished. Suzanne Stoker v. Milwaukee County, #2012AP2466, 2014 WI 130, 2014 Wisc. Lexis 950.
     Statutory standards for the state of Illinois' contributions to health insurance premiums for members of three of the state's employee retirement systems were constitutionally protected by a pension protection clause of the state Constitution. The Illinois Supreme Court rejected the argument that this protection only applied to retirement annuities while not applying to health insurance.
Kanerva v. Weems, #115811, 2014 IL 115811, 2014 Ill. Lexis 847.
     Amendments to Maine statutes that had the effect of reducing cost-of-living adjustments (COLAs) to retired state employees' benefits did not violate either the Contract Clause or the Takings Clause of the U.S. Constitution. There was no unmistakable intent by the state of Maine to be contractually bound to the prior COLA scheme and an existing statutory commitment barring reduction of enumerated benefits did not apply to COLAs. ME. Ass’n of Retirees v. Bd. of Trustees, #13-1933, 2014 U.S. App. Lexis 12164 (1st Cir.).
     An emergency manager appointed by Michigan's governor because of a city's significant economic difficulties made modifications to the collective bargaining agreements of retired city workers and severance benefits, including pension benefits, for retirees not covered by the collective bargaining agreements. These modifications would, among other things, modify or eliminate some retiree health care benefits. Further proceedings were ordered to determine whether provisions of the bankruptcy code could bind the retirees without their consent and whether state sovereignty precluded the application of the federal bankruptcy law in this manner. Also to be considered on remand were whether the emergency manager's orders were legislative acts under the Contract Clause of the U.S. Constitution, and whether it was "necessary and reasonable" under the Contract Clause to reduce and/or eliminate the retiree health care benefits at issue, as well as whether the retirees stated a viable due process claim and whether the collective bargaining agreements created protected property rights. City of Pontiac Retired Emps. Ass'n v. Schimmel, #12-2087, 2014 U.S. App. Lexis 8392, 2014 Fed App. 0094P (6th Cor.).
     A California city put a cap on retired city workers' health benefits after it failed to reach an agreement with the employee union. An intermediate state court rejected a retiree's claim that the cap on her health benefits was unlawful. The retiree health benefits were an employment benefit not a benefit under the city's retirement system, and therefore restrictions in the city charter that required a majority vote by all members of the pension system before any reduction in retirement system benefits took place did not apply. Dailey v. City of San Diego, #D060049, 2013 Cal. App. Lexis 1082, ordered published 2014.
     Michigan's governor appointed an emergency manager for a city having economic difficulties. That manager, acting under a law known as Public Act 4, modified the collective bargaining agreements of the city's retired employees. He also modified severance benefits, including pension benefits, that the city had previously given to retirees who were not covered by a collective bargaining agreement. Retired employees challenged the emergency manager's power to reduce their retirement benefits, claiming that it violated their federal constitutional rights under the Contracts Clause, the Due Process Clause, and the Bankruptcy Clause. A federal appeals court noted that there was a question of Michigan state law as to whether the legislature violated the state constitution in passing Public Act 4, and, additionally, that Michigan's voters had subsequently rejected Public Act 4 in a ballot referendum, which may have rendered the emergency manager's actions void. The appeals court, therefore, declined to rule on the federal constitutional claims, remanding for further proceedings to determine whether the actions taken under the now rejected law still have any power. City of Pontiac Retired Emps. Ass'n v. Schimmel, #12-2087, 2013 U.S. App. Lexis 16519, 2013 Fed. App. 0215P (6th Cir.).
     A retired police officer and several retired firefighters challenged a city's decision to reduce the amount of retirement health benefits allegedly promised when they retired. Seeking to resolve the case on nonconstitutional grounds if possible, the appeals court ordered further proceedings to see whether any of the plaintiffs had a specific vested right to certain health benefits based on the terms of the contracts in effect when they retired. In doing so, the trial court should presume that there was vesting unless the contract proves that no such vesting was intended. Marconi v. The City of Joliet, #3-11-086, 2013 IL App (3d) 110865.2013 Ill. App. Lexis 271
     A county did not breach its contractual obligation to provide health insurance benefits to sheriff's office command officer retirees when the contract that provided for them required that payment be made from a specefic fund and made the benefits contingent on adequate funding. The benefits were cut when there were no longer adequate money in the funds to pay for the benefits. While a new fund with more adequate funding had been created, it was a product of a new separate contract, and could not be used to fulfill the obligations imposed by the former contract. James v. Clackamas County Court:, #S059680, 353 Ore. 431, 2013 Ore. Lexis 270.
     A union representing police officers believed that a retiree health insurance subsidy provision in a collective bargaining agreement locked the subsidy in place as it existed at the time of the officer's retirement. The union sought arbitration of a dispute over the county's attempt to reduce the subsidy. The county argued that it need not arbitrate as the collective bargaining agreement had expired and that the subsidy was subject to change from year to year. An arbitrator agreed, but an intermediate appeals court vacated the award. Reversing, the highest court in Maryland ruled that an arbitration clause can survive the expiration of a collective bargaining agreement as to vested rights obtained during the contract's term, and that the issue of arbitrability had been one for the arbitrator to initially determined rather than the courts. Baltimore County Fraternal Order of Police Lodge v. Baltimore County Court, #3/12, 2012 Md. Lexis 750.
     City employees hired between July 1, 2005 and February 16, 2007 appealed a summary judgment in favor of the city which upheld an ordinance that made them ineligible to receive certain ancillary retirement benefits known as the "Four Benefits." The Four Benefits are a "13th retirement check," payable when there are excess earnings in the retirement system at the end of the year; a Deferred Retirement Option Drop, an alternative method of benefit accrual; the right to purchase up to five years of additional service credits; and retiree medical health benefits.
     The appeals court upheld the ruling below. It found that the ordinance's retroactivity did not violate the U.S. or state Constitutions, did not violate the city charter or state law, and that the defendant employees had not obtained any vested rights to the benefits. Because of that, they were not classified as members of the city employees retirement system and no vote was required under the terms of the city charter. The court also found that the retroactive ordinance only altered the city's laws to conform to existing agreements with employees on benefits modification. City of San Diego v. Haas, #D058225, 2012 Cal. App. Lexis 763 (4th Dist.).
     An intermediate California appeals court rejected the claim of retired firefighters or their surviving spouses that two cities were required to make additional payments a year earlier than they did towards the cost of their health insurance under an amendment to a state statute designed to eliminate some of the disparities between municipal contributions to the health care costs of current employees and the contribution to the cost of health care for retirees. The court found that it should defer to the interpretation of the disputed language in the statute by the health care plan administrator that the increased contributions had to be made beginning on January 1, 2008, rather than on January 1, 2007, as the plaintiffs claimed. Bernard v. City of Oakland, #A127853, 2012 Cal. App. Lexis 81 (Cal App.).
     The California Supreme Court stated that a county and its employees can enter into a binding implied contract granting a vested right to health insurance benefits on retired county employees when there is no explicit statute or ordinance prohibiting such an arrangement. The court made its ruling in response to a certified question submitted to it by the U.S. Court of Appeals for the Ninth Circuit in a case in which an association of county employees challenged the validity of changes a county made to health benefits for retirees, which would have the effect of eliminating a subsidy for retirees' health insurance. Retired Employees Assn. v. Co. of Orange, #S184059,  2011 Cal. Lexis 12109, 52 Cal. 4th 1171.
     Unionized city employees who accepted early retirement under an incentive program while the city was negotiating with their unions for new contracts were not entitled to retroactive pay raises provided for city employees in the new contracts. The early retirement incentive program did not contain any provisions entitling them to such back pay, and the new contracts expressly excluded them from receiving such retroactive payments. This did not violate their due process rights. Marcatante v. City of Chicago, #10-2114, 2011 U.S. App. Lexis 17683 (7th Cir.).
     When a city realized that police and firefighters who had previously retired on disability pensions were receiving full reimbursement of their medical benefits without legal entitlement, the payments were stopped. In a lawsuit brought by the retirees, a federal appeals court ruled that, except for two retirees who received explicit promises of continued full medical benefits, the retirees had no right to such payments. The city had no obligation to continue payments not authorized by law, and to do so would be a misuse of public funds. Cahoon v. Shelton, #10-2134, 647 F.3d 18 (1st Cir. 2011).
     While a county employee's retirement fund need not disclose to a newspaper the ages of pension recipients at retirement, it did have to disclose, under California state law, the names of retirees, and the gross amount of the pension benefits that each retiree received. Sonoma County Employees Retirement Assn. v. Superior Court (The Press Democrat), #A130659, 2011 Cal. App. Lexis 1124 (1st Dist.).
     Under a collective bargaining agreement entered into by a prison system and a union, an early retirement incentive system had an "age 55 cliff." Under it, if employees retire at 55, the employer continues to make unreduced contributions towards their health and dental insurance costs. Employees who continue to work past 55, however, are denied such contributions. A federal appeals court upheld the EEOC's position that this arrangement constituted a violation of the Age Discrimination in Employment Act (ADEA). The court ruled that a so-called "safe harbor" exception to the law for voluntary early retirement programs "consistent with the purposes" of the ADEA did not apply, since the plan here was based solely on the age of the retiring employees. It was therefore at odds with the statute's purpose of avoiding age discrimination. EEOC v. Minnesota Department of Corrections, #10–2699, 2011 U.S. App. Lexis (8th Cir.).
     In cases where a retiree sues because his benefits are too small, the statute of limitations begins when pension payments begin. "In financial affairs, many citizens take a good deal on faith: not everyone zealously checks his bank statement every month, carefully updates insurance policies to account for new conditions, or scrutinizes the apartment lease to ascertain rights and obligations. But concern about stale claims lies on the other side of the balance, ... and the discovery rule only protects those who do exercise reasonable diligence." McNamara v. City of Nashua, #10-1322, 2011 U.S. App. Lexis 654 (1st Cir.).
     A city may grant a retirement incentive, but it is not considered "salary" for pension calculation purposes. Smith v. Westchester Police Pension Bd., #1-09-0917, 2010 Ill App. Lexis 1251 (1st Dist.).
     Federal employee was entitled to reinstatement after taking a retirement, which was based on erroneous information about his benefits. Although the Army did not intentionally miscalculate his future benefits, it made no effort to verify them. Salazar v. Dept. of the Army, #DE-0752-09-0415-I-1, 2010 MSPB 235.
     Voluntary overtime compensation earned by a California deputy sheriff was not part of his regular wages and need not be included for purposes of computing retirement benefits. Sheldon v. Marin Co. Empl. Ret. Assn., #A124912, 2010 Cal. App. Lexis 1809.
    Massachusetts court reinstates the pension claim of a former police lieutenant who was convicted of 21 misdemeanor counts of unlawful access of computer records. Although accessing a computer system without authorization is certainly a serious offense ... the court does not find that it places at risk the integrity of the Peabody Police Department" and the fact that he was on duty at the time "was incidental to the conduct at issue." Public Employee Ret. Adm. Cmsn. v. Bettencourt, #09-3196-D, 2010 Mass. Super. Lexis 202.
     Pennsylvania appellate court overturns a holding that DROP plans for police officers are illegal because under an interpretation that a police officer cannot be simultaneously retired and receiving pension benefits and also be employed. "The employment status of a DROP participant after his retirement status is fixed ... is irrelevant." Bor. of Ellwood City v. Police Dept. Wage Policy Committee, #815 C.D. 2009, 2010 Pa. Commw. Lexis 320.
     Florida appellate court rejects a class action suit that a sheriff unlawfully impaired the obligations of a valid contract by unilaterally amending the terms of benefits for retired employees. The voluntary act of implementing an internal policy that is subject to a unilateral amendment or cancellation does not create contractual rights. Carlucci v. Demings, #5D08-3728, 2010 Fla. App. Lexis 3625 (5th App. Dist.).
     California appellate court holds that a public retirement system has the right to initiate collection proceedings to cure under-funding of pensions. City of San Diego v. Employee Retirement System, #D054688, 2010 Cal. App. Lexis 1000 (4th Dist.).
     Florida appellate panel affirms an administrative decision to deny retirement benefits to a former sheriff, who pled guilty to a federal mail fraud offense. Jenne v. State of Florida, #1D09-2959, 2010 Fla. App. Lexis 5234 (1st Dist.).
     An Oregon city's policy of denying health insurance coverage to its retirees does not violate their due process rights. The plaintiffs lacked a legally protected property interest to health benefits. Doyle v. City of Medford, #07-35753, 2010 U.S. App. Lexis 10722, 188 LRRM (BNA) 2799 (9th Cir.).
    Pennsylvania appellate court rejects the pension claim of a former public employee who was convicted of attempted obstruction and attempted tampering with records. Because the crimes of attempt and conspiracy are subject to the same criminal sentences as the underlying substantive crimes, it logically follows that they would also be subject to the same forfeiture consequences. Luzerne Co. Ret. Bd. v. Seacrist, #217 C.D. 2009, 2010 Pa. Commw. Lexis 23.
     Illinois Supreme Court rules that a convicted felon who earned pension credits from multiple public agencies or offices, forfeits all pension rights, even though he was not convicted for acts while serving in prior capacities. "As the victims of Ryan's crimes, the taxpayers of the State of Illinois are under no obligation to now fund his retirement." Ryan v. Board of Trustees, #108184, 2010 Ill. Lexis 273.
     An off-duty Maryland police officer’s criminal act can, as a matter of law, be enough to disqualify his application for retirement benefits. Whether off-duty criminality actually disqualifies an application is something that must be decided by the retirement board, as a matter of fact. Here, the retirement board found that an officer’s persistent abuse of cocaine for eight years was sufficient reason to deny him retirement benefits, even if he performed his duties in a competent manner. On appeal, the panel noted that "the issue was not whether [the retiree] had abused cocaine ... [but] how serious a breach of his duty that abuse represented." In upholding the denial of benefits, the appellate panel wrote that the officer engaged in long-term abuse, rather than an "isolated lapse of judgment under extreme emotional circumstances." Employees Ret. Sys. of Baltimore Co. v. Brown, #0954-2008, 2009 Md. App. Lexis 94. Note: The Maryland appellate panel cited two other states that have upheld a denial of retirement benefits for similar misconduct. DeSoto v. Hialeah Police Pension Fund, #3D03-63, 870 So.2d 844 (Fla. App. 2003) and Siwek v. Ret. Bd. of Policemen’s Fund, #1-00-4147, 756 N.E.2d 374 (Ill. App. 2001).
     As a matter of due process, an Illinois appellate court refuses to enforce a time limit to file a death benefit claim because a letter sent to the widow of a deceased firefighter did not "fairly and adequately inform" her of the retirement board’s decision. Coleman v. Retirement Bd. of the Firemen’s Annuity of Chicago, #1-07-2355, 2009 Ill. App. Lexis 440 (1st Dist.).
     Ninth Circuit holds that retired employees who receive healthcare benefits, while no longer members of a valid bargaining unit, have standing to challenge an end of benefits as "plan participant" under ERISA, 29 U.S. Code §1132. Poore v. Simpson Paper Co., #05-36060, 2009 U.S. App. Lexis 11174 (9th Cir.).
     Appellate court declines to find that a voluntary retirement constituted constructive discharge. The plaintiff, a police commander accused of sexual harassment, chose early retirement in order to retain lifetime health coverage, which he would have forfeited if he was terminated. His §1983 action fails, because he was not forced to make an on-the-spot decision. Knappenberger v. City of Phoenix, #07-15774, 2009 U.S. App. Lexis 11106 (9th Cir.).
     Current city employees lack standing to sue over a lack of health-care benefits for retirees. Bova v. City of Medford, #08-35091, 2009 U.S. App. Lexis 9606, 106 FEP Cases (BNA) 206 (9th Cir.). 
    "The receipt of a disability pension is a property right that cannot be diminished without procedural due process. Without notice and without a hearing, the Board unilaterally attempted to modify the disability pension that it had previously awarded to the plaintiff. As a matter of due process, the Board should have provided the plaintiff with notice and an opportunity to be heard before modifying his pension." Kosakowski v. Bd. of Tr. of Calumet City Police Pension Fund, #1-08-1898, 2009 Ill. App. Lexis (1st Dist.).
     Illinois Supreme Court affirms an appellate ruling that held that the benefits paid to the surviving spouse of a police officer are frozen, and are not subject to COLA increases given to retired officers. Village of Roselle v. Roselle Police Pension Bd., #106741, 2009 Ill. Lexis 323. (Unpub. 2009).
     A federal employee for 20+ years, who cashed out $30,000 in retirement contributions following his termination, was not entitled to collect monthly retirement benefits. By electing to receive his contributions in cash, he waived any future retirement annuity. Martin v. OPM, #2008-3324, 2008 U.S. App. Lexis 24657 (Unpub. Fed. Cir.).
     “Although pension plans are subject to mandatory vesting under ERISA, welfare-benefit plans are not. Retiree healthcare-benefit plans ... are welfare benefit plans; vesting only occurs if the parties so intended when they executed the applicable labor agreements.” Cole v. ArvinMeritor, #06-2224, 2008 U.S. App. Lexis 25762, 185 LRRM (BNA) 2654, 2008 FED App. 0447P (6th Cir.).
     EEOC challenges a fire district policy that disallowed credit toward a pension for firefighters over 65. The district amended its program in late 2006 to allow firefighters to earn service credit without regard to age, but did not allow retroactive credits. EEOC v. Eaton’s Neck Fire Dist., #08-5089, complaint (E.D.N.Y. 12/18/08).
     Employees who were participating in a DROP program were bound by a new bargaining agreement that could reduce their retirement health benefits. Benefits were not frozen when they elected the DROP option. Millcreek Twp. Police Assn. v. Millcreek Twp., #433 C.D. 2008, 2008 Pa. Commw. Lexis 577.
     Pay calculations for Pennsylvania police officer, using the last month's earnings, resulted in an inequity because overtime hours earned during the last month increased their benefits -- but this method was not available for firefighters or other city employees who worked overtime during their last month. Such a calculation process created uncertainty in predicting pension fund needs, whereas averaging the last 12 months is a reasonable and appropriate construction of pension laws. Gontarchick v. City of Pottsville, #176 C.D. 2008, 2008 Pa. Commw. Lexis 623.
     Appellate court rejects an appeal where permanent disability benefits were denied. The Retirement System's medical expert provided testimony that sufficiently contradicted the claimant's medical evidence. "The Comptroller is vested with the exclusive authority to weigh the testimony offered by medical experts and to credit the opinion of one expert over that of another." Collins v. DiNapoli, #504927, 2008 N.Y. App. Div. Lexis 9529 (3rd Dept.).
     Florida appellate court grants limited relief to a retired city employee who was mistakenly informed that he would receive $175,000 if he enrolled in a Deferred Retirement Option Plan (DROP) but the actual amount was around $75,000. Retirement Board, City of Coral Gables v. Pinon, #3D08-1114, 2008 Fla. App. Lexis 15120.
     Federal Merit Board declines to excuse or abate a $45,341 claim against a former federal worker who collected disability pay in excess of the income limitations provided by law [5 C.F.R. §831.1209(a) and §8337(d)]. Zelenka v. O.P.M., #PH-831M-07-0316-B-1, OPM Claim #328-9-643, 2008 MSPB 228.
     Because a statute was silent about cost-of-living increases for the widows of disabled police officers, an Illinois appellate court concludes that the legislature did not intend for surviving spouses to receive such COLA increases. Therefore a pension board has no authority to grant COLA increases. Village of Roselle v. Police Pension Bd., #2-07-0354, 889 N.E.2d 665, 2008 Ill. App. Lexis 470 (2nd Dist.).
    Florida appellate court affirms forfeiture of an ex officer's pension benefits following his conviction for providing an escort service for a drug courier. Simcox v. City of Hollywood Police Retir. Sys., #4D07-4638, 2008 Fla. App. Lexis 12687.
     Municipal retirement benefits carry with them an inference that they will continue, and under settled principles of collective bargaining, retirees' health insurance benefits in prior bargaining agreements survive the expiration and cannot be diminished without the consent of the retired workers. DiBattista v. Co. of Westchester, #19762/04, 2008 N.Y. Misc. Lexis 5212.
     The courts and M.S.P.B. lacked the authority to review an agency decision to recover $53,766 in erroneously paid retirement benefits due to a management error. The employee failed to ask the O.P.M. to waive collection of the overpayments. Alexander v. O.P.M., #2008-3131, 2008 U.S. App. Lexis 14765 (Unpub. Fed. Cir.).
     Federal appeals court rejects a claim brought by the widow of a federal retiree that had elected to receive a reduced annuity with a partial survivor annuity. Although the widow claimed that her late husband made a mistake in filling out the form because he was mentally incompetent at the time and that he intended for her to receive the maximum annuity. The spousal consent form bore the widow's notarized signature. Scalese v. O.P.M., #2008-3168, 2008 U.S. App. Lexis 14711 (Unpub. Fed. Cir.).
     Appellate court overrules a regulation that allowed retiring peace officers who never had been injured on duty to collect higher benefits than an officer who was injured on duty, even if the two have the same rank, years of service. L.A. Co. Prof. POA v. Co. of L.A., #B200582, 2008 Cal. App. Lexis 1136 (2nd Dist.).
     Illinois appellate court upholds a line of duty pension for a police officer who suffered a lower back injury in a scuffle with a homeless man, which caused her lower back pain that prevented her from performing the full range of duties as a police officer. The city cannot avoid liability by claiming that she can return to work with accommodations, because she was never offered a position within her limitations. Kouzoukas v. Retirement Board of Chicago, #1-07-2623, 2008 Ill. App. Lexis 617 (1st Dist.). .
     In a case where a retired firefighter was erroneously overpaid $14,768 in benefits, the Pension Board had jurisdiction to correct the mistake. Although there is no statute that expressly authorizes a pension board to reduce the amount of payments it has awarded to a pensioner, the erroneous overpayments were not "an award of pension benefits." Fields v. Schaumburg Firefighters' Pension Fund, #1-07-2721, 2008 Ill. App. Lexis 497 (1st Dist.).
     The term "regular compensation" provided in Calif. Govt. Code 31724 includes sick leave and vacation periods, when taken as time off. Katosh v. Sonoma Co. Employees' Ret. Assn., #A115094, 2008 Cal. App. Lexis 758 (2nd Dist.).
     Eighth Circuit overturns a city's unilateral discontinuance of health insurance premium payments for retired public employees as required by a bargaining agreement; Art. I §10 of the U.S. Constitution prohibits the impairment of contracts. AFGE L-2957 v. City of Benton, Ark, #07-1589, 2008 U.S. App. Lexis 1416 (8th Cir.).
     Retiree benefits are not arbitrable if they don't vest prior to expiration of the collective bargaining agreement. Crown Cork & Seal v. Intl. Assn. of Machinists, #06-3639, 2007 U.S. App. Lexis 22207 (8th Cir.).
     White House police officer was not a federal law enforcement officer within the meaning of 5 U.S. Code 8331(20), §8401(17) and 5 C.F.R. § 831.902 because his primary function was not the "investigation, apprehension, or detention" criminals. Duties involving maintaining order and protecting life and property do not qualify for premium retirement benefits. Lowder v. Dept. of Homeland Security, #2006-3181, 2007 U.S. App. Lexis 24191 (Fed. Cir.).
     Retired Rhode Island police officers and firefighters had vested rights to receive cost-of-living adjustments "that cannot be decreased by future ordinance." Arena v. City of Providence, #2005-207, 919 A.2d 379 2007 R.I. Lexis 39, 181 LRRM (BNA) 3307 (R.I. 2007).
     EEOC revises ADEA regulations to conform to General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004); the 6-to-3 holding had rejected the claims of employees in their 40s who would not receive the same retirement health benefits as the employer's older employees. Coverage Under the Age Discrimination in Employment Act, EEOC Amendment to 29 C.F.R. Part 1625, 72 (129) Fed. Reg. 36873 (7/6/07).
     Federal court upholds a First and Eighth Amendment pension forfeiture challenge by a former police officer that was convicted of criminal civil rights violations. The ex-officer fatally shot a robbery suspect and coworker killed another. Other officers placed throw down weapons on the two deceased men and reported that the men were armed, in an effort to justify the shootings. Hames v. City of Miami, #06-22360-CIV, 2007 U.S. Dist. Lexis 25104 (S.D. Fla.). Note: The decision follows similar rulings in Kerner v. State Employees Retir. Sys., 72 Ill. 2d 507, 382 N.E.2d 243, 246 (1978) and Horsley v. Phila. Bd. of Pens. & Retir., 519 Pa. 264, 546 A.2d 1115 (1988).
     Although a public employee, as part of the divorce decree, was supposed to designate his ex-wife as beneficiary, he failed to do so. Upon his death the pension properly was distributed to his children; his signing of the dissolution agreement was not a substitute for the strict requirements for designating a beneficiary. Hansford v. Public Empl. Retir. Sys., #06AP-880, 2007-Ohio-1242, 2007 Ohio App. Lexis 1156.
     A police officer who was a member of the bargaining unit is bound by the pension terms of a bargaining agreement (CBA), even if he did not agree to the contents. Norcini v. City of Coatesville, #660 C.D. 2006, 2007 Pa. Commw. Lexis 21 (2007). [N/R]
     Because a sheriff's benefits plan resulted in younger workers who were disabled to receive higher benefits than older workers would receive, the EEOC established a prima facie violation of the ADEA, because the plan was facially discriminatory. EEOC v. Jefferson Co. Sheriff's Dept., #03-6437, 467 F.3d 571, 2006 U.S. App. Lexis 26981, 99 FEP Cases (BNA) 180, 2006 FED App. 0405P (6th Cir.). {N/R}
     Merit Board holds that a claimant was not entitled to enhanced retirement benefits; although the maintenance of firefighting equipment may be indirectly connected to firefighting, it does not meet the definition of "firefighter" under 5 U.S. Code §8401(14). Weatherby v. Dept. of the Interior, #06-3121, MSPB #SF-0842-05-0195-I-2, 2006 U.S. App. Lexis 26641 (Fed. Cir. 2006). {N/R}
     New York Court rejects a claim for duty-related retirement benefits to an officer that worked at the WTC site. There was evidence of preexisting cardiac disease and anxiety from a family death. Jefferson v. Kelly, #103125/06, 2006 NY Slip Op 26417, 2006 N.Y. Misc. Lexis 2954 (2006). [2006 FP Dec]
     Merit Systems Board rejects as "untimely" a retirement appeal; the federal employee waited more than 15 years before filing the appeal. Valdez v. Office of Personnel Mgmt., #SE-0831-90-0192-I-1, OPM #CSA-2-615-472, 2006 MSPB Lexis 4393, 2006 MSPB 238 (MSPB 2006). {N/R}
     Illinois appellate court denies retirement benefits to a former Inspector General of the Secretary of State's office because of his guilty plea for obstruction of justice, even though he was already retired at the time that he attempted to persuade a former secretary to withhold sensitive" documents from a grand jury subpoena. Bauer v. State Employees' Retir. Sys., #1-03-1589, 2006 Ill. App. Lexis 564 (2006). {N/R}
     Merit Systems Protections Board sustains an agency's determination that a former nuclear materials courier, who later became a law enforcement specialist/instructor, was not entitled to secondary law enforcement officer retirement benefits because his position was not a primary LEO position; although Congress specifically granted enhanced retirement benefits to nuclear materials couriers, it did not designate them as law enforcement officers. Fritts v. Dept. of Homeland Security, #AT-0842-05-0529-I-1, 2006 MSPB 160 (MSPB 2006). {N/R}
     City of San Diego agrees to settle a lawsuit alleging underfunding of its municipal pension plan. City to add $173 million into the system over the next five years. McGuigan v. San Diego, #GIC 849883, 44 (2162) G.E.R.R. (BNA) 657 (Cal. Super. 2006). {N/R}
     Indiana holds that a mandatory retirement age still applies to employees who were enrolled in a five-year DROP program. City of Gary v. Mitchell, #45A03-0504-CV-192, 843 N.E.2d 929, 2006 Ind. App. Lexis 409 (2006). [2006 FP Jun]
     Second Circuit rules that former New York City Transit employees are not entitled to lifetime health benefits under a plan sponsored by their union; the retirees lacked a vested right to such benefits. Silence in a health plan cannot be read as a promise that retiree benefits have vested. Bouboulis v. TWUA, #04-4241, 2006 U.S. App. Lexis 6120 (2d Cir. 2006). {N/R}
     Pennsylvania appellate court holds that a municipality cannot pass an ordinance that lessens the benefits of retired police officers, which benefits were earned in conformity with a valid collective bargaining agreement. Wilkes-Barre Twp. v. Penn. Lab. Rel. Bd., # 2648 C.D. 2004, 878 A.2d 977, 2005 Pa. Commw. Lexis 358, 178 LRRM (BNA) 2859 (2005). {N/R}
     Federal court upholds a proposed EEOC Regulation [68 (134) Fed. Reg. 41542-49] that will allow employers to provide retirees 65 and older with health benefits that are inferior to the benefits given to younger retirees. AARP v. EEOC, #05-CV-509, 390 F.Supp.2d 437, 96 FEPCases (BNA) 994, 2005 U.S. Dist. Lexis 21495 (E.D.Pa. 2005), relying on language in National Cable v. Brand X, 125 S.Ct. 2688 (2005). The EEOC notes that rising health care costs and a larger numbers of workers nearing retirement age created an incentive for employers to eliminate all health benefits for retirees. {N/R} New Jersey Benefits Review Task Force Report recommends increasing the retirement age for public employees, switching from a defined benefit to a defined contribution plan and requiring participants to pay a larger share of their health costs. {N/R}
     Illinois appellate court holds that a retired police officer who was convicted for misconduct in office was entitled to a full refund of his contributions to the police pension fund, without deduction of the substantial amounts he received prior to the termination of benefits. Bassett v. Pekin Police Pension Board, 2005 Ill. App. Lexis 1127 (3rd Dist. 2005). {N/R}
     ERISA prevents pension plans from denying credit for pre-ERISA service time accrued prior to a break-in-service; all years of service must be used when calculating an employee's accrued benefit. DiGiacomo v. Teamsters Pension Trust Fund, #04-3510, 420 F.3d 220, 2005 U.S. App. Lexis 18154 (3rd Cir. 2005). {N/R}
     Federal Court upholds a revised EEOC regulation allowing employers to reduce or terminate benefits for retired workers. AARP v. EEOC, #05-CV-509, 2005 U.S. Dist. Lexis 21495 (E.D.Pa. 2005), repling on National Cable and Telecommunications Association v. Brand X Internet Services, 125 S.Ct. 2688 (2005). [2005 FP Dec]
     Arbitrator concludes that a new management requirement, which was not based on an actuarial study, that police officers contribute 5% of their wages to the pension plan violates the bargaining agreement. Bor. of State College, Pa. and State College Police Assn., 121 LA (BNA) 188, FMCS Case No. 05/51261 (Felice, 2005). {N/R}
     New Illinois law penalizes any pension enhancements caused by balloon salary increases given during a worker's last year before retirement. S.B. 27, Illinois Pension Code Amendments (2005). [2005 FP Sep]
     Armed park ranger was not entitled to a federal law enforcement officer pension; duties such as maintaining order, protecting life and property are not the type of law enforcement duties that qualify an employee for LEO service credits under 5 C.F.R. §831.902. Fagergren v. Dept. of the Interior, #DE-0831-03-0469-I-1, 2005 MSPB Lexis 3240 (MSPB 2005). {N/R}
     NYC police sergeants union settles pension mismanagement lawsuit for $4.75 million. The fund, which benefits 10,000 active and retired members, fell from a high of $141 million in Mar. 2000 to $96 million in Sep. 2002. Another $29 million is claimed against a codefendant firm. N.Y.C. Sergeants Benevolent Assn. Annuity Fund v. Trainer Wortham & Co., N.Y. Law J. 5/31/2005 (Sup. Ct. Manhattan Co. NY 2005). {N/R}
     Seventh Circuit holds that the due process rights of retired officers were not violated when the county required retired sheriff's deputies to pay higher health care premiums than required by currently employed deputies. Germano v. Winnebago County, #04-3319, 2005 U.S. App. Lexis 6075 (7th Cir. 2005). {N/R}
     Eighth Circuit concludes that a state's decision to fund health insurance programs for some state employees at a different level than it funds program for others had a rational basis and did not violate the equal protection or due process clauses. Carter v. State of Arkansas, #04-1017, 2004 U.S. App. Lexis 26265 (8th Cir. 2004). {N/R}
     A public employee benefit plan using public funds is not subject to the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829. Gualandi v. Adams, #02-7809, 385 F.3d 236, 2004 U.S. App. Lexis 20620 (2d Cir. 2004). {N/R}
     Supreme Court holds that employers cannot reduce pensions for workers who retire early and then go to work somewhere else. In a unanimous ruling the justices held that ERISA [29 U.S. Code §1053(a)(3)(B)] protects against lowered benefits that take effect after a worker has retired -- in this case, the plaintiffs "retired" at age 39. Central Laborers' Pension Fund v. Heinz, #02-891, 2004 U.S. Lexis 4028 (2004). {N/R}
     Employers will be able to reduce or eliminate retired workers' health benefits after they qualify for Medicare, under a revised Rule of the Equal Employment Opportunity Commission. U.S. Equal Employment Opportunity Commission Notice of Proposed Rulemaking: Age Discrimination in Employment Act -- Retiree Health Benefits, 68 (134) Fed. Reg. 41542 (July 14, 2003). [2004 FP Jun]
     California appellate court concludes that a payment for accumulated sick leave is not part of a public employee's "final compensation" under Government Code 31461 and 31461.2 and should not be included when calculating retirement benefits. Salus v. San Diego Co. Emplees. Assn., #D041608, 2004 Cal. App. Lexis 478 (4th Dist. 2004). {N/R}
     Pension fund was not obligated to reinstate the retirement benefits of a police officer who was convicted of lying to a grand jury, and later was pardoned by President Clinton. The claimant forfeited all rights and property interest when he elected to receive a refund of his pension contributions. Yasak v. Ret. Bd. of Policemen's Benefit, #03-1733, 2004 U.S. App. Lexis 1661 (7th Cir. 2004). {N/R}
     Effective in June 2003, federal agencies now have the option of offering voluntary early retirement to employees for the purposes of restructuring or downsizing under guidance issued by the U.S. Office of Personnel Management. "Voluntary Early Retirement Under the Homeland Security Act of 2002," 68 (114) Fed. Reg. 35270 (6/13/03).
     Governor of New York (George Pataki, Rep.) has approved Assembly Bill 8352 which will reduce state and local government pension costs by $1.6 billion in the current fiscal year; it restructures the way public employers make contributions to the state's retirement fund. {N/R}
     A Norfolk naval base police officer was not a law enforcement officer under 5 U.S. Code §8336(c)(1), and was not entitled to enhanced retirement benefits. Koenig v. Dept. of the Navy, #02-3126, 315 F.3d 1378, 2003 U.S. App. Lexis 629 (Fed Cir. 2003). Also see Watson v. Dept. of the Navy, 262 F.3d 1292 (Fed. Cir. 2001). {N/R}
     Pennsylvania appellate court holds that detectives employed by district attorneys are not members of a police force for early retirement purposes. Allegheny Co. Detectives Assn. v. Allegheny Co. Retirement Bd., #188 C.D. 2002, 804 A.2d 1285, 2002 Pa. Commw. Lexis 666 (Pa. Cmwlth. 2002). {N/R}
     California reserve police officer, who received minimum wage rate and served 1 or 2 days per month for 27 years, was not "honorably retired" to qualify for the right to carry a concealed firearm on retirement. Haas v. Meisner, 2002 Cal. App. Lexis 4933 (4th Dist. 2002). {N/R}
     Although a 1989 divorce decree provided that a public employee's first wife would receive 60 percent of his retirement benefits, his surviving second spouse was the statutory beneficiary of all of his survivor benefits, and the courts were powerless to apportion those benefits. Cosby v. Cosby, #2001-0659, 96 Ohio St.3d 228, 2002 Ohio 4170, 773 N.E.2d 516, 2002 Ohio Lexis 1997 (2002). {N/R}
     Merit Systems Protection Board holds that U.S. Navy police officers at the Norfolk Naval Shipyard were not entitled to law enforcement officer retirements. Street v. Dept. of the Navy, #DC-0842-00-0210-I-1, 2002 MSPB Lexis 41 (MSPB 2002). [N/R]
     Federal appeals court upholds a one-year limitation of the Navy's law enforcement retirement credit, 5 C.F.R. §831.906(e-f). Stearn v. Dept. of the Navy, #01-3013, 280 F.3d 1376 (Fed. Cir. 2002). [N/R]
     The Supreme Court has declined to review a Court of Appeals holding that U.S. Navy base police officers were entitled to the early retirement privileges as other federal LEOs. Watson v. Dept. of Navy, #01-725, 122 S.Ct. 817, 2002 U.S. Lexis 279 (cert. denied 2002); appellate decision at 262 F.3d 1292 (Fed. Cir. 2001). [N/R]
     The fact that an employer grants waivers or treats employees differently does not prove a claim that the employer administered its plan arbitrarily and capriciously under the ERISA. Mauser v. Raytheon, #99-1895, 239 F.3d 51, 2001 U.S. App. Lexis 1562 (1st Cir.). {N/R}
     Illinois appellate court upholds the decision of a police retirement board to deny a pension because of an officer's felony conviction for mail fraud. Devoney v. Retirement Bd. of Chicago, #1-99-1383, 321 Ill. App.3d 1, 746 N.E.2d 836, 2001 Ill. App. Lexis 166 (2001). {N/R}
     N.J. Supreme Court reinstates medical benefits for a retired police officer. Although he was not legally entitled to the benefits, his superiors misunderstood the law at the time he retired and assured him that he was entitled to medical benefits. Middletown Twp. PBA v. Twp. of Middletown, #A-116-98, 162 N.J. 361, 744 A.2d 649, 2000 N.J. Lexis 23. [2000 FP 91]
     A city need not provide its retirees the same dental benefits obtained by active employees, gained by collective bargaining. L- 21, Int. Fed. v. San Francisco, 76 Cal. App.4th 213, 90 Cal.Rptr.2d 186, 1999 Cal. App. Lexis 987. {N/R}
     Appeals court rejects claim that retired public employees must receive the same health benefits as active employees. Intl. Fed. Prof. L-21 v. San Francisco, 76 Cal.App.4th 213, 1999 Cal. App. Lexis 987, 90 Cal.Rptr.2d 186 (1999). [2000 FP 27-8]
     U.S. Supreme Court rejects appeal of public official who lost his pension following a conviction for bribe-taking. Forfeiture of retirement benefits does not violate the Constitution. Ret. Bd. v. Azar, 721 A.2d 872, 1998 R.I. Lexis 330; cert. den. #98-1623, 1999 U.S. Lexis 3298. [1999 FP 108]
     Illinois Attorney General rules that a pension forfeiture law applies to either state or federal crimes. IL A.G. Opin. # 99- 006. [1999 FP 108]
     Massachusetts Supreme Court upholds the forfeiture of the pension contributions made by a former police officer who stole an entrance exam for his son. He had conspired to defraud the city of amounts exceeding the refund due. Doherty v. Retirement Bd. of Medford, 425 Mass. 130, 680 N.E.2d 45 (1997). [1998 FP 106-7]
     En banc panel in San Francisco upholds suit to give pension and other benefits to workers that were hired as "independent contractors." Status and duties, not labels, determines eligibility for benefits. Vizcaino v. Microsoft Corp., 1997 U.S. App. Lexis 18869 (9th Cir, en banc), citing Daughtrey v. Honeywell, Inc., 3 F.3d 1488 (11th Cir. 1993). A contrary decision is reached by a federal appeals panel in Virginia. Clark v. E. I. DuPont, 1997 U.S. App. Lexis 321, 20 E.B.C. 2309 (4th Cir.). [1997 FP 136-7]
     Federal court invalidates a police pension fund that treated women different than men because they, as a class, live longer. Kuhn v. Mun. Police Retir. Sys., 1996 U.S.Dist. Lexis 15362 (E.D.La.). [1997 FP 13-14]
     Federal appeals court strikes down a state statute that denied retirement benefits to public employees hired after they reached their 65th birthday. EEOC v. Mass., 77 F.3d 572 (1st Cir. 1996). [1996 FP 108]
     Appellate court allows terminated employee to collect accumulated sick leave time because employment handbook did not distinguish retirement separations as honorable/dishonorable or as voluntary/involuntary. Dow v. Columbus-Cabrini Medical Ctr., 274 Ill.App.3d 653, 655 N.E.2d 1, 10 IER Cases (BNA) 1221, 1995 Ill.App. Lexis 425. [1995 FP 155]
     Fed. ct. dismisses a disabilities discrimination suit of a police officer who was denied admission into pension fund and who brought a suit under the ADA. Rodriguez v. City of Aurora, 887 F.Supp. 162 (N.D.Ill. 1995). {N/R}
     Police officer with diabetes was allowed to proceed with a claim the refusal of a police pension fund to enroll him violated the ADA. Holmes v. City of Aurora, 1995 WL 21606 (N.D.Ill. 1/18/95). See also: U.S. v. St. of Illinois, 3 AD Cases 1157 (N.D.Ill. 1994). To settle all claims, the city council agreed to pay the officers $2,000 to drop his federal court lawsuit, make a $31,413 payment to the pension plan for the 10 years no money was paid in his behalf, and pay his attorneys $70,000; 8/17/95 Chi. Trib. 2-4. {N/R}
     For pension purposes, an employee's age is that age stated on the employment application; proof of a different age cannot be later raised to increase one's benefits. Glynn v. Retir. Bd., 635 N.E.2d 823 (Ill.App. 1994). {N/R}
     Illinois allows a police officer, under a 25 year sentence for murder, to collect his retirement pension. Crime was not committed while on duty. Cullen v. Retirement Bd. of Chicago, 1995 Ill.App. Lexis 173. [1995 FP 75-6]
     Congress amends Social Security Act to allow full participation by firefighters and police officers. Social Security Independence Act of 1994, 42 U.S. Code Sec. 418. [1995 FP 28]
     Changes in retirement laws designed to encourage present and future employees to remain in service longer may have prospective application; retroactivity would not promote the purpose of such amendments. Arkansas Fire & Police Pension Bd. v. Stephens, 832 S.W.2d 239 (Ark. 1992). [1993 FP 28]
     Florida rules that unused vacation and sick leave are not “salary and wages” for purposes of calculating retirement benefits. Miami Beach Police & Firemen v. Bd. of Trustees, 581 So.2d 229 (Fla.App. 1991). [1992 FP 108]
     Employer's pension plan is not legally required to increase benefits of employees who voluntarily work past their normal retirement age. Atkins v. Northwest Airlines, 59 FEP Cases (BNA) 227 (8th Cir. 1992). [1992 FP 141-2]
     Pension funds could decline to cover a diabetic police officer. Holmes v. Ill. Munic. Retir. Fund, 540 N.E.2d 1122 (Ill.App. 1989).
     City could amend fire dept. pension plan, increase benefits, and require firefighters to make retroactive contributions. Burlington F.F.A. v. City of Burlington, 543 A.2d 686 (Vt. 1988).
     Erroneously retired lieutenant entitled to reinstatement and seniority preference for promotion to captain. Snell v. City of Shreveport, 514 So.2d 698 (La. App. 1987).
     Federal Court upholds state law equalizing retirement ages of men and women public employees; fact one sex now must work an extra five years is not unconstitutional. Pineman v. Fallon, 662 F.Supp. 1311 (D. Conn. 1987).
     “Equal or better” benefits does not require a mathematical formula as to which pension plan should prevail. Salem Firefighters v. Public Employment Retirement Board, 717 P.2d 126 (Ore. 1986).
     Retirement bonus pay law repealed; retirees win suit to reinstate benefits. City of Athens v. McGahee, 341 S.E.2d 855 (Ga. App. 1986).
     City could not terminate ex-vice squad commander's pension because of subsequent conviction. Board of Trustees of Police Pension v. Weed, 719 P.2d 1276 (Okla. 1986).
     City can still collect pension contributions from those who have reached the maximum benefit level of participation. Caruso v. City of Omaha, 222 Neb. 257, 383 N.W.2d 41 (1986).
     State could change pension laws and reduce benefits for those who had not yet reached eligibility status, but could not adversely affect those who retired or could have retired. Baker v. Okla. Firefighters Pension system, 718 P.2d 348 (Okla. 1986).
     Deputy fire chief's pension should be calculated on the pay rate of his highest civil service rank, not his exempt bank. Braun v. Retirement Bd. of Firemen's Fund of Chicago, 483 N.E.2d 8 (Ill. 1985).
     Michigan retirement pay includes longevity, holidays, vacations, overtime, shift-differential and cost-of-living; excludes recall pay, sick leave, life and hospital insurance. Gentile v. City of Detroit, 362 N.W.2d 848 (Mich. App. 1984).
     City could lower retirement benefits for newly hired fire and police personnel; no equal protection problems. Jackson Firefighters Assn. Local 87 v. City of Jackson, Miss., 736 F.2d 209 (5th Cir. 1984).
     Deputy fire chief, convicted of pay-offs for his promotion, not entitled to retirement pay based on promotional ranks. Hackett v. City of New Britain, 2 Conn. App. 225, 477 A.2d 148 (1984).
     City can amend pension laws for new employees; no right to transfer benefits when employees switch departments. San Francisco Fire Fighters L-798 v. City of San Francisco, 201 Cal.Rptr. 176 (App. 1984).
     City can unilaterally require firefighters and police to increase their pension contributions. Intern. Assn. of Fire Fighters v. City of San Diego, 667 P.2d 675 (Cal. 1983).
     “Salary” for retirement purposes does not include overtime pay regularly earned. Beaver v. Liston, 464 A.2d 679 (Pa. Cmwlth. 1983).
     Employee entitled to higher pension than legally due if city mistakenly informed him of the amount due if he retired. Kern v. City of Flint, 335 N.W.2d 708 (Mich. App. 1983).
     Disabled employee could switch to ordinary retirement pension when he reached eligible age. Redding v. Board of Trustees of Oak Park, 450 N.E.2d 763 (Ill.App. 1983).
     Court action in setting aside a felony conviction does not restore former employee's right to a pension. Ballard v. Board of Trustees of Police Pension Fund of the City of Evansville, 452 N.E.2d 1023 (Ind.App. 1983).
     Local option retirement plans that are “equal” or better than state plans need no be identical or equal in every provision. Oregon Fire/Police Retirement Committee v. Oregon Public Employees" Retirement Board, 671 P.2d 729 (Ore. App. 1983).
     "Salary" means base pay, not overtime and credits, when used for pension deductions and pension benefits. Hill v. City of Lincoln, 330 N.W.2d 471 (Neb. 1983).
     City could not deny firearms permit to disabled police officer without a hearing and a showing of cause. Monzingo v. City of Garden Grove, 190 Cal.Rptr. 750 (App. 1983).
     Does a police or fire chief or his subordinate forfeit a pension because of misconduct? New Jersey Supreme Court sets a precise standard of review. Uricoli v. Bd. of Trustees, Police & Firemen's Retirement System, 91 N.J. 62, 449 A.2d 1267 (1982).
     Ex-wife can require pension board to make payments directly to her, due under divorce decree. Spadaro v. New York City Police Pension Service, 454 N.Y.Supp. 374 (Misc. 1982).
     Once, again, appellate court upholds rule of no refunds for personnel that quit before retirement. Holmes v. City of Los Angeles, 172 Cal.Rptr. 589 (App. 1981).
     State retirement system can treat highway patrol officers and narcotics agents differently; not a denial of equal protection clause of constitution. Anderson v. Winter, 631 F.2d 1238 (5th Cir. 1980).
     State cannot increase pension contributions without adding to benefits; vested rights impaired. Singer v. City of Topeka, 607 P.2d 467 (Kan. 1980). Retirement pension must include longevity benefits in determining final salary if increments were included in employee's contributions. York Paid Firemens Pension Fund Board v. Orendorff, 419 A.2d 232 (Pa. Cmwlth. 1980).
     Resigning employees not entitled to refund of mandatory contributions. Stevens v. Bd. of Trustees of Shreveport, 370 So.2d 528 (La. 1979).
     Different retirement benefits for chief not a violation of equal protection doctrine. City of Winona v. Policeman's Relief Assn., 281 N.W. 2d 145 (Minn. 1979).
     Can the legislature reduce pension benefits? Alabama Supreme Court sets guidelines. Bd. of Trustees v. Cary, 373 So.2d 841 (Ala. 1979).
     Resigning employees not entitled to refund of withheld pension contributions. Musquiz v. City of San Antonio, 586 F.2d 530 (5th Cir. en banc 1978); 528 F.2d 499 affirmed.
     Indiana rules that eligible disabled retirees can switch to ordinary retirement to receive increased benefits. Bobson v. City of Mishawaka, 383 N.E.2d 484 (Ind.App. 1978).
     State law may treat fire and police personnel differently from other employees. Bryson v. Utah State Retirement Office, 573 P.2d 1280 (Utah 1978).
     Involuntary Retirement discussed. Gardner v. Nation, 522 P.2d 1281.
     Equal Protection discussed. Roth v. Public Employees Retir. Bd. of Ohio, 336 N.E.2d 448 (Ohio App. 1975).
     Statute of Limitations; Collateral Estoppel. Montagna v. O'Hagan, 402 F.Supp. 178 (E.D. N.Y. 1975).
     Separate pension fund sought in suit by Rhode Island firemen. Montanero et al v. Taft et al, Providence Super. Ct. (R.I. 1974).
     See also: Disability Rights and Pensions; Divorce Proceedings; Sex Discrimination; Sexual Harassment.

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