Category Archives: Public Sector

Brief of Law Professors as Amici Curiae in Support of Petitioner, Lane v. Franks, No. 13-483, United States Supreme Court, OT 2013

Source: Sheldon H. Nahmod, Paul M. Secunda, Joshua D. Branson, Scott R. Bauries, Marquette Law School Legal Studies Paper No. 14-09, March 10, 2014

From the abstract:
This brief, submitted on behalf of more than 65 law professors who teach and write in the areas of employment law and constitutional law, argues that the Court should reverse the 11th Circuit’s decision denying First Amendment protection to a public employee who was allegedly terminated in retaliation for his testimonial speech in a criminal trial.
Related:
Oral Argument Preview: Employee Speech at the Supreme Court and the Amicus Brief of Law Professors
Source: Ruthann Robson, Constitutional Law Prof Blog, April 25, 2014

The Times They Are a Changin’—Pension and Benefit Reforms

Source: Deidra Krys-Rusoff, Robert C. North, Jr., Steve Kreisberg, Steve Toole, Municipal Finance Journal, Volume 34, no. 4, Winter 2014
(subscription required)

From the abstract:
We all know what is on the horizon. Every stakeholder in the pension and benefit reform realm is facing enormous responsibilities and challenges. Municipal analysts are concerned about how pension and benefit changes will affect the costs of the liabilities and their impact on debt repayment. At this point, there seem to be more questions than answers, including: How will state and local municipalities address the escalating costs of pension and benefit obligations when the mere discussion of solutions seems to cause problems? How successful will negotiations be among government officials and labor representation as they navigate through promises made to employees and skyrocketing costs of the liabilities? Will the legality and enforceability of enacted pension reforms be defined by the courts? The experts on this panel share their current perspectives and their strategies for the future.

Reforming Public Pensions

Source: T. Leigh Anenson, Alex Slabaugh, Karen Eilers Lahey, Yale Law & Policy Review, Vol. 33 No. 1, 2014

From the abstract:
Pension reform has taken center stage in the public policy debate as states struggle to deal with the fallout from the Great Recession. The public pension debt crisis jeopardizes the fiscal solvency of states as well as the nation’s long-term financial health. Retirement benefits are also a critical component of income-maintenance for public retirees. In this article, we integrate and extend the pension reform movements in law, education and economics by studying teacher pensions across the United States. Our interdisciplinary approach concentrates on defined benefit plans in states that do not contribute to Social Security. Focusing on this vulnerable and important group of government workers, we aim to improve theory and practice by providing a valuable perspective as states reconsider their pension obligations.

We initially estimate the severity of the public pension problem through statistical analyses and comparisons among fifty state plans. We then evaluate the legality and desirability of existing and proposed reforms. Significantly, pension reform raises new constitutional questions that are challenging courts to arrive at an acceptable conceptual framework for consistent interpretation and application. With the foregoing financial, political, and legal considerations in mind, we suggest a comprehensive set of reform measures along with a managerial paradigm for political action. The policymaking methodology directs attention not only to the pension plans themselves, but also to the political reality of their creation and continued operation. We conclude that a comprehensive response to the public pension crisis is necessary to avert disaster and maintain plan solvency both now and in the future.

Altruism by Job Sector: Can Public Sector Employees Lead the Way in Rebuilding Social Capital?

Source: Jaclyn Schede Piatak, Journal of Public Administration Research and Theory, First published online: April 2, 2014
(subscription required)

From the abstract:
The face of public service continues to evolve as government copes with increasingly complex societal problems and changing means of service delivery. Public managers are now challenged to oversee programs that cut across sectors and organizational boundaries, and people carrying out the government’s work can be found across all sectors—government, nonprofit, and for-profit. Unlike those in previous generations, younger individuals see opportunities to engage in public service in nonprofit and for-profit organizations, which has undoubtedly affected the ability of government agencies to recruit and retain those with public service values. Have opportunities to engage in public service across sectors made differences between public, nonprofit, and for-profit organizations irrelevant? Are public and nonprofit employees any different from those in for-profit organizations, especially when it comes to public service values? Understanding why individuals engage in public service is arguably more important than ever as social capital and civic engagement decline. This article draws upon the “other-oriented” aspect of public service and builds upon the work of Brewer … and Houston … to examine the impact of sector on one area of prosocial behavior: volunteering. This article employs data from the September Volunteer Supplement of the 2011 Current Population Survey to examine how both formal and informal volunteering varies across sectors—public, nonprofit, and for-profit—as well as across levels of government—federal, state, and local. This study finds that government and nonprofit sector employees tend to volunteer more than their for-profit sector counterparts, but there are important nuances when taking work schedule, levels of government, and additional measures of volunteering into account.

Nonfatal Injuries And Illnesses Among State And Local Government Workers

Source: Shannon M. Maloney, U.S. Bureau of Labor Statistics, Spotlight on Statistics, March 2014

The scope of the Survey of Occupational Injuries and Illnesses was expanded with the 2008 survey to cover a more complete section of the U.S. economy: state and local government workers. Prior to the publication of the 2008 survey results, data users commonly requested information about industries in the public sector. Estimates covering nearly 18.5 million state and local government workers show that these public sector employees experienced a higher incidence rate of work-related injuries and illnesses than their private industry counterparts.This Spotlight on Statistics compares characteristics of injury and illness cases in state and local government with those in private industry, highlighting incidence rate trends in selected state and local government industries and examining injury and illness rates and cases that occurred in state and local government workplaces in 2011….

The Use and Abuse of Labor’s Capital

Source: David H. Webber, Boston University School of Law, Public Law Research Paper No. 14-7, February 17, 2014

From the abstract:
The recent financial crisis has jeopardized the retirement savings of 23 million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds harm their own participants and beneficiaries by investing against their economic interests, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant — and flawed — interpretation of the fiduciary duty of loyalty, public pension trustees owe their allegiance to the fund itself, rather than to the fund’s participants and beneficiaries, notwithstanding the fact that the duty of loyalty commands trustees to invest “solely in the interest of the participants and beneficiaries” according to ERISA and similar state pension codes. I argue that this “fund first” view distorts the duty of loyalty and turns the role of trustee on its head, leading to investments that undermine, rather than enhance, the economic interests of public employees. I turn to ERISA, trust law, agency law, and corporate law to argue that public pension trustees should consider the impact of the funds’ investments on the jobs and job security of the funds’ participants and beneficiaries, where relevant. I also adduce evidence that these controversial investments are widespread. I propose that public pension funds be governed by a “member first” view of fiduciary duty focused on the economic interests of public employees in their retirement funds, which go beyond maximizing return to the funds. I argue that this view is more faithful to the original purpose of the duty of loyalty than is the “fund first” view. I suggest ways to implement the “member first” view, discuss potential extensions beyond the jobs impact of investments, and assess the proposed reform’s practical effects.

Walking a Tightrope: Are U.S. State and Local Governments on a Fiscally Sustainable Path?

Source: Bo Zhao and David Coyne, Federal Reserve Bank of Boston, Working Paper No. 13-18, December 2013

From the abstract:
This paper develops a new measure of state and local fiscal sustainability called the “trend gap,” which is based on socioeconomic and other fundamental factors and removes the short-term influence of the business cycle. The paper estimates the trend gap and finds that the nationwide per capita trend gap has been on a growing path over the past three decades, a different conclusion than found in previous studies. Social insurance and income maintenance programs have played a major role in the growth of the trend gap, while pension and other post-employment benefits (OPEB) plans have become increasingly important in driving it up. In addition, there are large and growing disparities in the trend gap across states.

Rebuilding and Re-Engaging a Battered Public Sector Workforce

Source: John M. Palguta Public Manager, Vol. 43 no 1, Spring 2014
(subscription required)

Public sector workers in many jurisdictions have been battered during the past few years by growing workloads, shrinking resources, anti-government rhetoric, and – not surprisingly – declines in employee satisfaction and commitment accompanied by increased turnover of key talent. … Why does it matter? because of the large body of research that consistently shows a strong and positive correlation between employee engagement and organizational performance…..

Supplemental Retirement Plans Offered by City and County Governments

Source: Robert L. Clark, Melinda Sandler Morrill, Matthew Anderson, and Aditi Pathak, Center for State and Local Government Excellence, Issue Brief, February 2014

From the summary:
– Fifteen of the local government employers offer only one type of plan; all 20 local government employers in the study offer at least one 457 savings plan.
– Most plans allow loans.
– Employers match employee contributions in just four plans.
– Employees need more financial literacy and good information about plans to make optimal decisions when they have more choices to make.
– More choices for employees may not be better if the quality of the plans, in terms of fees and investment options, is inferior to the quality of a more restricted access model.