July 11, 2012.
Travis Pillow, 06/29/2012 – 03:17 PM
(Received July 9, 2012)
The lawyer leading a lawsuit challenging a 2011 retirement law says in court papers that a budget shortfall does not necessarily justify reducing cost-of-living increases for public pensions or requiring employees to contribute a portion of their salaries to their retirement.
Responding to arguments the state and local governments are making with the Florida Supreme Court, attorney Ron Meyer argues for the workers and labor unions challenging the law that the state is misapplying an earlier case that holds state and local governments can alter future retirement benefits for government employees.
The state has argued that in a 1981 opinion, the high court held that lawmakers can change employees’ future benefits, but Meyer maintains that ruling applies to the narrow circumstances of Florida Sheriffs Association v. Department of Administration and not to the changes lawmakers approved last session in Senate Bill 2100.
The court could also overturn that precedent, he writes, because of a contract lawmakers enacted four decades ago with members of the Florida Retirement System.
Since the 1970s, when the Legislature switched to a system that did not require employee contributions, retirement benefits have been part of a contract with government workers that the Legislature cannot break without a “compelling state interest,” Meyer argues. Changing retirement benefits to reduce a nearly $3.6 billion budget shortfall by $861 million could only meet that test if lawmakers show “the funds are available from no other reasonable source.”
Attorneys for both the state and the Legislature have argued that laws cannot be used to tie the hands of future Legislatures, requiring them to spend a certain amount on retirement benefits. However, Meyer writes that principle is “inapplicable where there is a clear contract.”
Lower court Judge Jackie Fulford also held the employees should have been allowed to negotiate the changes through collective bargaining, and that the changes violated a constitutional ban on “takings” of private property by the government.
Meyer also defends her order that state and local governments refund the mandatory 3 percent employee contributions. The governments had argued the change would be costly and disruptive, but Meyer says they did not raise those objections with Fulford.
“A contract in which ‘one party retains to itself the option of fulfilling or declining to fulfill its obligations under the contract’ is illusory,” he writes. “This Court has rejected the notion that express contracts with the State of Florida are unenforceable.”
Attorneys representing police officers and firefighters have also weighed in against arguments made by groups representing local governments. The state’s legal team has a chance to respond to Meyer’s arguments before the case goes before the seven justices in September.
You can read the initial and answer briefs in the pension case at:http://www.meyerandbrooks.com/Litigation.htm