LITIGATION 2011“Let’s Get to Work!”

Florida Retirement System ChangesSB 2100

Pension “Reform” Challenge

Senate Bill 2100 made many changes to the Florida Retirement System (FRS) some of which only apply to new employees first hired after July 1, 2011: Average compensation changed from 5 to 8 years Vesting increased from 6 to 8 years Retirement age increased from 62 to 65 Years of service requirement increased from 30 to

33 Special risk retirement age increased from 55 to

60 and required years of service from 25 to 30 years

Pension “Reform” Challenge

Two significant changes apply to all current FRS participants: Mandatory 3% pay deduction for contribution

to retirement Reduction in earned cost-of-living adjustment

(COLA) for service performed after July 1, 2011, but which affects calculation for prior service

These changes are challenged by the lawsuit in Leon Circuit Court

Pension “Reform” Challenge

Section 121.011(3)(d), Florida Statutes, provides:

“As of July 1, 1974, the rights of members of the retirement system established by this chapter are declared to be of a contractual nature, entered into between the member and the state, and such rights shall be legally enforceable as valid contract rights and shall not be abridged in any way.” (underlining added)

Pension “Reform” Challenge

Many employees (such as educators) have individual contracts which establish salary

Collectively bargained contracts establish salary

Statutes and personnel policies establish salary

These different ways of ensuring a day’s pay for a day’s work create a protected interest in salary, i.e., a “property right”

Pension “Reform” Challenge

Article I, Section 10, Florida Constitution, states:

“Prohibited laws. – No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.” (underlining added)

Pension “Reform” Challenge

The Legislature may only impair a contractual right if a “compelling state interest” exists:

“[T]he legislature must demonstrate no other reasonable alternative means of preserving its contract with public workers, either in whole or in part. The mere fact that it is politically more expedient to eliminate all or part of the contracted funds is not in itself a compelling reason. Rather, the legislature must demonstrate that the funds are available from no other reasonable source.” (Florida Supreme Court)

Pension “Reform” Challenge

Deducting 3% of the earned salary from public workers is also a “taking” prohibited by Article X, Section 6 of the Constitution (“[n]o private property shall be taken except for a public purpose and with full compensation therefor…”)

Further, the unilateral changes violate Article I, Section 6 of the Constitution (guaranteeing that the right of employees to bargain collectively “shall not be denied or abridged.”)

Pension “Reform” Challenge

The status of the case is: On June 30, 2011, the Judge denied the

request to “sequester” funds being collected The Judge determined that she has the

authority to require the State to return contributions if she finds the law to be unconstitutional

The Court has scheduled final trial level disposition of the case for October 26, 2011, either through motions for summary judgment or a non-jury trial

Taxpayer Money to Support ReligionCS/HJR 1471

Church/State Separation CS/HJR 1471, which has been given

status as “Amendment 7” to appear on the 2012 general election ballot, if enacted, removes major protections against taxpayers being required to fund religion and religious institutions

Entitled “Religious Freedom” on the ballot, the amendment, if enacted, will erode the long-standing separation of church and state provisions in the Florida Constitution

Church/State Separation The measure, if enacted, will:

Remove the language in Article I, Section 3 of the Florida Constitution which prohibits revenue of the State (i.e., taxpayers’ money) from being taken from the treasury “directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution”

Add new language which will create the right for religious organizations to participate in “any program, funding, or other support” offered by the State, beyond that which is required by the U.S. Constitution, at taxpayer expense

Church/State Separation The ballot summary and title are

misleading: The summary misleadingly states that the

initiative will amend the Florida Constitution “consistent with the United States Constitution,” which is a false statement

The title is misleading in that it suggests that passage of the amendment will create “religious freedom” when, in fact, it will permit tax dollars to be taken and used for religious purposes with which the taxpayer may not agree

Church/State Separation Section 101.161, Florida Statutes,

requires that the “substance of such amendment” must be printed in “clear and unambiguous language on the ballot”

Court decisions require the summary to explain “the legal effect of the amendment”

The voter must be clearly apprised of what changes the passage of the amendment will create

Church/State Separation The U.S. Constitution permits a

governmental entity to refrain from funding religious activities

Amendment 7, if enacted, would require governmental entities to fund religious activities

The ballot summary, stating that Amendment 7 will make the Florida Constitution “consistent with the United States Constitution” is materially misleading

Church/State SeparationThe Suit Within the Suit

The Legislature in 2011 enacted changes to the laws governing ballot initiatives

One such change gives to the Attorney General the right to rewrite a ballot amendment found to be misleading by the Court and thereafter the rewritten amendment will be placed on the ballot

Such change grants legislative functions to a member of the executive branch in violation of the doctrine of separation of powers

Other Possible Litigation

Other Possible Litigation Class size penalties, definition of

“extracurricular classes” and charter school non-compliance with class size requirements

“Student Success Act” impairment of right of employees to collectively bargain over wages, hours and terms and conditions of employment

Charter school expansion depriving school boards of right to “operate, control and supervise” schools in the district

Other Possible Litigation Voucher expansion, including growth of

corporate tax-credit vouchers and making any child with the need for a Section 504 accommodation eligible for a McKay voucher

Adequacy of state funding of public schools in contravention of Article IX, Section 1 of the Constitution making providing a high quality system of free public schools the “paramount duty” of the State.

Other Possible LitigationThe lawyers of Florida say:

“Thank you Governor Scott and the Florida Legislature for providing us with the opportunity to get to work!”

Ronald G. Meyer, EsquireMeyer, Brooks, Demma and Blohm P.A.131 North Gadsden StreetPost Office Box 1547 (32302)Tallahassee, Florida 32301850-878-5212www.meyerbrookslaw.com