Thursday, December 9, 2010

AND NOW come the Plaintiffs...

It's been reported that Firefighters Local 1 are suing the city on the grounds that a mandatory state takeover would violate only their collective bargaining agreement, but it turns out it's a little more sophisticated than just that:

5. At all times relevant hereto, the Second Class City Code has provided that a pension fund be established in the City of Pittsburgh specifically for retired and disabled city firefighters...

6. At all times relevant hereto, the Second Class City Code has also provided that the care, management, and control of the "Fireman's Relief and Pension Fund of the City of Pittsburgh" be exclusively performed by a local board of managers ("Pension Board") which include City officials as well as members who are directly elected by the city firefighters and beneficiaries of the fund... (Firefighters v. Pittsburgh)

So they're not arguing a takeover conflicts with their contract so much as it conflicts with the Second Class City Code, a prior established state law:

23603 Board of managers

There is hereby created for the care, management, and control of such fund a board of managers, consisting of twelve members, to be known as the "Firemen's Relief and Pension Fund Board of the City of ..........." The personnel thereof shall be as follows: The mayor or chief executive, the president of council, the city solicitor, the city controller, the director of the department of public safety, and the chief of the bureau of fire, who shall be ex officio members, and six elective members from among the following classes of the members and beneficiaries of such fund: One member to be elected from among the deputy chiefs, battalion chiefs, captains, and lieutenants; three members to be elected from among the other members of the fund; and two members to be elected by the beneficiaries of the fund. (PA code)

The lawsuit goes on to establish the various tasks locals have been empowered to perform, frame this mandated empowerment as "rights", and posit that under a state takeover their contractual, statutory and constitutional rights would be eliminated.

Now, this is where it gets interesting: the Firefighters are not suing to invalidate the new pension funding laws in order to uphold the older pensions board laws. They are suing to force the City to act in concert with both -- that is, to cough up the money.

16. The City of Pittsburgh is mandated to appropriate sufficient funds, via tax increases if necessary, to comply with its collective bargaining agreements with its firefighters as a matter of law. Harney v. Russo 255 A.2d 560 (Pa. 1969) ... Tate v. Antosh 281 A.2d 192, 201 (Pa. Cmwlth. 1971)...

17. Additionally, the May 20th, 2009 Act 47 Recovery Plan stated that a preferred option to pay for increased pension obligations would be, among other things, to adopt the Mayor's plan to lease the parking assets...

18. The May 20th, 2009 Act 47 Recovery Plan stated that in the event that the City was unable to obtain sufficient funding for the pension plans, as a failsafe option, the City was mandated to pass as part of its annual budget sufficient tax increases to fund the required additional pension contribution for the budget year... (Firefighters v. Pittsburgh)

And therefore, they assert, since any "unilateral system modification" to the Pension Fund ultimately violates the PA Constitution, and any "dimishment" (not a real word) to the fund would ultimately violate the Home Rule Charter -- the City should be ordered via injunction to get its 50% funding together by January 1, prohibited from allowing a state takeover to occur, and made to accept "one of the stated options to sufficiently fund the pensions": that is, a lease, or taxes now so as to preserve the makeup of the fund, not comfortably in the future.

IMPRESSION: It's hard for me to imagine a judge enacting a parking lease for us, or ordering a tax anticipation bond be issued (and taxes be raised) in this rapid a time frame, but I certainly see the potential for this to get chaotic as all get-out. The Firefighters have a credible enough complaint, and how a judge decides to resolve it, starting on Dec. 20, could ultimately surprise everybody.


  1. I'm no lawyer, but this is all state law in one way or another. The Home Rule Charter didn't come from Mt. Sinai, but another state law. “Pittsburgh” is a creation of state law. The new law supersedes the old, just like always.

  2. Interesting to know that Joey King is paid by the Fireman's Pension Fund and decides who to invest taxpayer dollars with - the big banks of NY and in return for doing it gets favors. Of course he is not wanting to give up that perk. But, Act 44 mandates the city go under state control no matter what previous acts say. So he goes to court to try to protect his wallet and take it away from the other city unions that dont get what he gets. All to protect his money he takes from the pensions and his firefighter pension isn't even funded as good as the rest of city workers. Please get the state in here and look at what these guys have been doing. Someone should be going to jail for stealing this money all this years.

  3. MH - If the state had amended the old law, that'd be one thing, but it's still very much on the books in another section. Is my understanding also not being a lawyer.

  4. You read the two laws "in para materia" whenever possible, i.e. read them to be consistent whenever possible. If that is not possible, i.e. a conflict exists, you must determine which "trumps" - typically, the superior authority will trump (e.g. fed over state in most cases, state of city in most cases). Also, you don't necessarily need to amend a law to change it's interpretation. Adoption of a new, more specific law may control on the items addressed in the new law while all other aspects of the "old" law remain intact.

  5. If there was a conflict, the new law would be deemed to have amended the old law by implication. But their point is that there isn't a conflict, as long as the City meets its funding obligation.

    I don't think the two laws have to be read that way (implying a duty by the City to avoid the consequences of the second law), but it seems close enough to me that a judge could disagree. I doubt a judge would order any particular resolution, but it could order the City to submit a plan for the court's approval.

  6. On December 20th. Let the state take over then fill the fund with a lease.

  7. That would read better as "On December 20th?"