Pension Fight Heads to Supreme Court

As you know, SEA/SEIU Local 1984 is one of four public employees’ unions that are suing the state for the 2011 increases to the amounts employees pay toward their pensions; and we are seeking refunds for the increased pension payments workers made during the last three years.

This case has been slowly making its way through the state’s court system and oral arguments from both sides are scheduled to be presented to the NH Supreme Court on May 15.  This is significant as legal counsel feels there will be some sort of ruling as a result.

Oral arguments are presented to five justices by a lawyer who provides the legal reasons why they should prevail. Each side’s attorney is allowed to talk directly to the justices with an equal amount of time allotted to each. However, the justice may grant additional time if he or she believes it is necessary.  The lawyer who presents the opening argument may reserve part of their time to be used for a closing argument after the other side has presented.

The coalition of unions who are united in restoring the retirement dollars that have been promised to public employees has recently commissioned attorney Andru Volinsky as lead counsel. He will present the oral arguments on May 15. Volinsky successfully secured cash refunds for municipalities that overpaid for health and liability insurance through the municipal insurer formerly known as the Local Government Center.

Associate Attorney General Richard Head will be representing the state at the oral arguments.

Volinsky was recently quoted in an article in the Portsmouth Herald as saying that the 2011 increases to employees’ pension contributions, mandated by the Legislature, are unconstitutional under “contract clause,” because they were imposed upon employees “already in the system.” Those employees made contractual agreements with their public employers to pay a specific portion of their earnings toward their pensions and those agreements cannot be changed during their careers, he said.

Changing employment terms, after both sides agreed to them, said Volinsky, is like telling a plow driver he’ll be paid $50 an hour to clear roads, then telling him in the middle of a snowstorm he’ll be paid less.

It is expected that the question of “vesting” will be carefully considered during oral arguments.  The state argues employees are vested when they retire, and the Merrimack Superior Court has ruled employees are vested after 10 years, while our coalition argues that employees are vested at the point of hire, or after completion of a probationary period, which is usually one year.

Volinsky said public employees took their jobs knowing they’re paid less than their private counterparts and the lower pay was offset with “richer” pensions.

“Part of the deal is a dependable pension,” he said. “Then, all of a sudden, the 2011 Legislature says, ‘You know that pension we promised you? You can’t rely on that.'” Changing the terms, Volinsky said, is unconstitutional.

We will provide an update after the oral arguments are presented.

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