PBA Fighting to Protect Alabama Retirement Benefits
Feb 28, 2013
When the retirement benefits of Alabama law enforcement officers came under attack last year, PBA was quick to respond to the requests for assistance we received from our members. We are currently involved in litigation which challenges efforts by the state to reduce retirement benefits for law enforcement officers.
Prior to August 2011, as a general rule, members of the Retirement System of Alabama (RSA) had their retirement benefit calculated on the highest three years of compensation of their last ten years of employment. For many years this compensation included overtime pay, and in the case of state law enforcement, subsistence pay. In August 2011, at the request of the State Comptroller and the Director of the State Personnel Department, the Alabama Attorney General issued opinion 2011-090. In this opinion, the Attorney General stated that neither overtime pay nor subsistence pay should any longer be included in computing a member’s earnable compensation, and no further retirement system contributions should be deducted from such pay. With many law enforcement employees accumulating significant amounts of overtime pay as part of their compensation, losing the ability to include overtime pay as part of the compensation on which retirement benefits were calculated could result in dramatic decreases in benefits for many law enforcement officers. Likewise, losing the ability to include subsistence pay as compensation could have a significant negative impact.
The Board of Control of RSA did not request the Attorney General’s opinion, nor did it take any action to accept or adopt it with RSA Control Board approval. Instead, a memorandum went out directing the participating employers in the RSA to implement the Attorney General’s opinion whether the employee was vested or not.
On February 6, 2012, the SSPBA filed suit in Montgomery County on this issue. Flynn Mozingo of the Melton, Espy and Williams law firm in Montgomery is lead counsel, with assistance from SSPBA attorney Grady K. Dukes. Initially, the suit was filed against members of the control board of RSA, its chief executive officer, and the comptroller of the state of Alabama. Individual named plaintiffs were three members of the Auburn Police Department and a member of the ABC Board. As a result of the defenses raised by the RSA in its answer, the City of Auburn was later added as a defendant.
In May 2012, while the PBA lawsuit was pending, the Alabama Legislature amended the law to redefine earnable compensation to include overtime payment, so long as the earnable compensation does not exceed 120 percent of the employee’s annual base compensation as certified by the employer. Subsistence pay was not included. PBA lobbied actively to keep the statute in its previous form which had not included any cap on the amount of overtime which could be considered earnable compensation.
Several civil actions of various types have been filed on this issue, with some wanting contributed funds returned to employees, and others requesting other types of relief. All these cases should eventually end up in Montgomery County. SSPBA’s civil action is the only lawsuit that initially asked the court to declare the attorney general’s opinion invalid; to declare that the actions of the RSA pursuant to the attorney general’s opinion and the revised statute are invalid; and for an injunction to be entered against the defendants preventing them from implementing on enforcing the attorney general’s opinion and the revised statute. PBA is working wholeheartedly to protect those retirement benefits that Alabama law enforcement officers have been promised and have been working toward.
UPDATE (11/16/12)
The various cases filed regarding the changes in the RSA have now been transferred to Montgomery County and consolidated in Circuit Court before Judge Hardwick.
As a stalling tactic, on November 7, 2012, the attorney for the State Defendants and the RSA filed a motion for protective order and other motions to prevent a deposition of a representative of the RSA that had been scheduled for November 13, 2012. This had been originally noticed on October 5 and renoticed on October 23. RSA had previously filed a Motion to Dismiss which had been denied by order dated August 3, 2012, and whose time to appeal had run. These new motions are yet to be decided.
The civil action filed by PBA was the only one that originally asked to maintain the status quo and thereby keep the retirement benefits as they were before overtime and subsistence pay were excluded from the calculation of salary, although at least one of the other civil actions has been amended to follow our lead.
We will keep you updated as we continue the fight to protect your retirement benefits.
UPDATE (2/28/13)
On February 20, 2013, local counsel Flynn Mozingo and PBA counsel Grady Dukes attended a Superior Court hearing on the PBA’s lawsuit against the Retirement System of Alabama. At issue was a motion for summary judgment filed by RSA against the PBA. The judge denied the state’s motion to disqualify the PBA as a representative plaintiff. He did allow some very limited discovery, but withheld final ruling on the rest of the summary judgment motion. Parties are to submit additional briefs on the issues involved in the lawsuit. We will continue to pursue legal remedies in this matter and continue to update you
Alabama Division
