Molan Milner and Krupski PLLC

100 Hall Street Suite 101
Concord, NH 03301
ph: 603.410.6011
fax: 603.410.6031
alt: 866.298.4081
info@molanmilner.com

what's new

We'll post here recent developments and news events of interest to New Hampshire's public employees and their Unions. Stop by often to get the latest on labor's legal happenings. Be sure to check the legislative alert page for breaking news during the 2011 session!

LGC free to withhold minutes of pubic meetings, Court rules.

May 11, 2012

When a LGC attorney speaks in a LGC open public meeting, the minutes recorded of that conversation can be withheld, the New Hampshire Supreme Court ruled today -- but only because no member of the public was present. (Seems, though , that is exactly why the minutes should be released ??)

In the third 'right to know' case brought to the Court by the Professional Fire Fighters of New Hampshire, 14 sets of public meeting minutes were withheld by LGC. In previous rulings of the Court, LGC - as a quasi governmental agency - was found to come within the reach of RSA 91-A. This third case did, however, make a great difference for transparency in local government as hundreds of documents were released following the filing of this litigation. Press accounts here and here and here and here.

Past Practice can require step increases to be paid during status quo period, arbitrator rules.

May 1, 2012

Hudson Firefighters, IAFF Local 3154 wins an important arbitration case. Attorney Krupksi successfully argued that, even though NH case law may provide that step increases are not required to be paid in the status quo period absent a continuation clause, past practice may control. And in Hudson, where step increases were funded and paid for 4 years prior to the decision of the Town to stop making those payments, a past practice does control. The decision is here.

Judge's pension decision is out : pensions are contracts that vest upon permanent employment!

Mar. 30, 2012

The long awaited decision from the NH Supreme Court was released today. (Decision here). The Court upheld the trial court's ruling regarding vesting which should be of great value to us in our pension challenges. No longer, we think, can the Jeannont, Belknap and Furlough cases be viewed as mere dicta in the pension area. Stay tuned for further developments as to next steps and how this very important decision may help our cause!

Primex settles with State, agrees to return millions in surplus!

Mar. 26, 2012

The Secretrary of State announced today an agreement reached with Primex, a RSA 5-b risk pool specializing in workers' compensation coverage for political subdivisions. Under the terms of a "Risk Pool Practices Agreement", Primex has agreed to return through premium "holidays" over 16 million in surplus to members of its pools. Great news, but more work needs to be done with the other pools, right?

(Another) Court declares employee increase in retirement rates unconstitutional!

Mar. 6, 2012

The momentum builds across the country where Courts are holding State Legislatures to the command of their Constitutions : States cannot pass laws that break contracts and promises made to its publc employees. Today, Florida joins with New Hampshire and Arizona trial courts and the Supreme Courts in Massachustees, Pennsylvania and Kansas holding that an increase in employee rates without a commensurate increase in benefits is unconstitutional.

The opinion is here. Also, on our downloads page (scroll to 'retirement') are the cases from those other jurisdictions and other related resources.

Court declares employee increase in retirement rates unconstitutional!

Feb. 1, 2012

Merrimack County Superior Court Judge McNamara has sided with employees and has decalred the 2 to 2 1/2 percent increase in vested employee retirement rates effective July 1 2011 unconstitutional! Read the decision here. There does remain work to be done : vested means, we say, after probation and not after ten years, as the Court ruled. Stay tuned, much more to follow.

Time for an update :

Nov. 5, 2011

Lot's going on :

LGC : The hearings officer in the Secretary of State matter has denied the request for intervention filed by public sector Unions and retirees. The Order is based on the statutory language of RSA 5-B that requires the return of excess earnings and surplus to the members of LGC, not the individuals that have paid all or a portion of the health insurance premiums charged by LGC. Even though we will not be a named party in the case, be assured we will be at all of the hearings and will participate to the fullest extent possible to assure that the over charges for health insurance get returned to the rightful owners of that money (maybe upwards of 100 million!).

The House select committee looking into the practices of LGC continues its work with hearings held last week and more scheduled. The committee heard from the three risk pools (LGC / Primex / School Care) and requested more information from them. Notably, the committe chair commented last week that holding millions dollars of surplus on top of millions of dolllars in reserves is just wrong. Follow the committee's work on the cases to follow page.

Pension Lawsuits:

There are two ongoing cases where we are challenging the Constitutionality of certain "pension reform" legislation passed by the New Hampshire Legislature.

Case #1

Filed in August 2009, this lawsuit challenges certain sections of HB1645 that: 1) changed the definition of "earnable compensation" which lowered pensions already earned; 2) reduced the amount of COLA increases previously allowed; and 3) reduced and permanently lowered increases to the medical subsidy benefit. This case was amended in May 2010 to add claims involving other legislation that reduced the funding mechanism for the "Special Account" (used to pay COLA's) and removing 250 million dollars of the Special Account to lower employer rates.

This case was filed as a class action seeking to bring these claims on behalf of all effected NHRS members and retirees. The central argument centers on the "Contract's Clause" of the New Hampshire and Federal Constitutions which forbids the government from passing laws that substantially impair vested rights, such as the right to vested pensions that have been earned prior to the passage of these laws.

Status: The case remains at the trial court level (Merrimack County) where discovery on the issue of class certification has just been completed. A formal motion to certify the class will follow in December/January and, following a ruling on the class certification, the Judge will rule on the substantive arguments which have been fully briefed and argued to the court. We expect a decision in the Spring 2012.

Case #2

This case was filed in June 2011 and seeks an injunction against the "pension reform" legislation passed this year in HB2 that: 1) increased employee retirement rates (Group 1 to 7% / Group 2 Police to 11.55% / Group 2 Fire to 11.8 %) and 2) required that employer rates be set at artificially lower rates in a manner not based on sound actuarial advice. These claims are based on, again, the "Contracts' Clause" and another section on the New Hampshire Constitution (Part 1, art. 36-a) which requires the NHRS Board (not the Legislature) to set employer rates based on "sound actuarial valuation and practice".

Status : the case was heard before the Court (Merrimack County , Judge McNamara) on July 14th at which time the Judge ordered further briefing of certain leal issues. The matter is now scheduled for further hearing on November 17th.

A third case is under serious consideration in order to challenge further sections of HB2 that will take effect January 1, 2012 - including changes in the age / years of work / and further earnable compensation reductions. Stay tuned and watch the cases to follow page for updates.

Legislation:

Two study committees are looking at changes to public sector bargaining laws and the possibility of changing to a defined contribution (DC) retirement plan for public employees. The DC committee finished its "work" and (surprise) has recommended a DC plan for future hires - which also dramaticlly effects current members and will drive up rates for employers as the current system runs out of members. Kudos to Senator Larsen for drafting a comprehensive minority report outlining all that is wrong the committee's proposal.

The bargaining committee continues its work and will meet again next week. Tough to read what will result out of this committee (if anything) as proposals range from making the bargaining process public to notions that public sector Unions have outlived their usefuleness. We'll see! Stay tuned to the downloads and legislative alert pages as we continue to track these committees.

Lastly, the NH Supreme Court issued its ruling in the 'right to know' case filed by the Union Leader against the NHRS. As expected, the Court ruled that the names and pension amounts of NHRS retirees are public records. Expect a flurry of news reports on pensions soon and watch the NHRS website for more on how and when they will release this information.

LGC , Legislative action , and more ...

Sept. 17, 2011

LGC : There is a hearing scheduled for Oct. 4th in the Secretary of State's investigation of the LGC. Because the interests of active public employees and retirees are implicated (they paid health premiums to LGC which they used for purposes unrelated to health insurance), we have filed a motion to intervene to represent these folks - Firefighters, State Employees, Municipal workers, Teachers, and Law Enforcement. Stay tuned and check out the decisions of interest page for more details on the 'LGC Under Investigation' matter.

Legislation : Speaking of LGC, House Republican leadership has filed a bill to investigate the LGC as well. HB655 will have its first public hearing this Tuesday. Check out the legislative alert page to follow this bill as well as HB654 , a bill aimed at lowering NHRS employer rates even further.

We are also following the study committee formed to look at changing, for new hires, the current defined benefit (NHRS) plan to a 401(k) type defined contribution plan. Looks like this study committee is well on its way to making this unfortunate move. As well, the study committee on public sector bargaining met last week and seems intent on only 'fixing what is broke' instead of getting rid of public sector bargaining altogether. We'll see.

Finally, the two pension legal challenges filed by New Hampshire's labor coalition churn on. The HB1645 challenge is moving through a discovery phase (for class certification purposes) and the more recent challenge to HB2 (NHRS employee rate increase while artificially lowering employer rates) has been briefed and awaits a hearing in Merrimack County. Look for an amended petition to be filed soon attacking the other portions of HB2 that, we say, violate the contracts' clause. Follow these cases on the 'decisions of interest' page. Stay tuned!

LGC , Senate action , and more ...

Sept. 7, 2011

The Secretary of State has ordered the LGC to pay back millions of dollars skimmed off health insurance premiums - sound familiar? This has been the position of the PFFNH for many years and the subject of previous class action litigation (see downloads page for more details). The enforcement petition is a scathing indictment of LGC practices regarding misuse of taxpayer money, illegal corporate structuring of 'shell' companies, and securities violations. The petition seeks restitution, a cease and desist order, fines and penalties. Named defendants include the current and former executive directors of the LGC. A hearing on these charges is scheduled for Oct. 4 - stay tuned here for more details and check out the sidebar for the extensive press coverage of these events.

The Senate was in session today and voted to override many bills vetoed by Gov. Lynch. The veto of SB3 was overturned , even though identical provisions have been passed into law by HB2 - the momentum on attacking public sector retirement benefits continues. The Senate did sustain, however, the Governor's appropriate veto of the voter ID bill (SB129) by a 7 - 17 margin.

Legislative activity will heat up shortly as Study Committees on retirement (defined contribution plan) and public sector bargaining will meet next week - our legislative alert page will spring to life next Friday for updates. As well, there are nearly 800 new legislative requests (LSR's) out,, many of which focusing on public sector bargaining , retirement, the right to know law, and law enforcement matters. Stay tuned for a busy next session!

Finally, congratulation to 21 year Seabrook Firefighter and PFFNH member Kevin Janvrin for winning a House seat in a Special election yesterday!

Final Report Issued by Secretary of State on LGC abuse!

August 2, 2011

The long awaited report is out detailing the shenanigans of the LGC involving the skimming of health insurance money for other purposes. See details on the downloads page. Much more to follow! Here are a few notables from the report:

** The LGC is illegally formed and misused Delaware law to set up an illegal umbrella organization.

** LGC failed to return surplus (millions) to cities, towns, employees and retirees.

** LGC spent millions not authorized.

** LGC cannot force municipalities to "join the club"; that is requiring those that are in the pool to join NHMA.

** All retiree money spent on health insurance used for other purposes was improperly taken.

** LGC must return all the money used to establish and fund their own defined benefit pension plan.

Hearings and litigation sure to follow, stay tuned!

Court considers Union request to halt pension "reform" changes.

July 19, 2011

Last Thursday Merrimack County Superior Court Judge McNamara heard oral argument from the New Hampshire Retirement Security Coalition, the NHRS and the State on the issue of whether two sections of HB2 pass Constitutional muster. The questions from the Judge seemed to indicate his agreement that RSA 100-A does in fact constitute a contract that the Legislature cannot impair for vested members. The Judge soundly rejected the notion offered by the State attorney that the NHRS could be abolished by the Legislature and promised pension benefits not paid!. There is an expedited schedule in place for more pleadings to be filed by the parties over the next few weeks, so watch the downloads page for future developments and filings. At stake is the 2- 2 1/2 % increase in the employee rates and the turf war between the State and NHRS regarding employer rate setting. Stay tuned!

NHRS Joins the Legal Battle Against HB2

July 12, 2011

Joining the effort first launched by the New Hampshire Retirement Security Coalition, the NHRS today filed suit against the State over section 188 of HB2 which directs the NHRS Board to recertify employer rates using outdated data and the old, higher, since abandoned assumed rate of return. The filing and related materials are here. NHRS has asked for an expedited hearing, the Court already scheduled a July 14 hearing on the Coalition's request for an injunction. Stay tuned!

Lawsuit Filed Challenging Pension Legislation

June 29, 2011

Launching the first phase of litigation efforts against the so called 'pension reform' measures instituted by the Legislature, today, members of the New Hampshire Retirement Security Coalition filed suit in Merrimack County Superior Court challenging the constitutionality of two sections of HB2. The lawsuit (available here and here) attacks as a violation of art. 36-a, section 188 of HB2 which orders the NHRS Trustees to set employer rates using old data and against the advise of the NHRS actuaries, all in an attempt to , once again, artificially lower employer rates. This is precisely why art. 36-a was enacted - to keep the Legislature from tinkering with what are fiduciary responsibilities of the NHRS Board of Trustees. The Board, bravely enough, also voted yesterday to launch a similar legal challenge - see you in court!

The lawsuit, filed by Molan Milner & Krupski and Stember Feinstein Doyle and Payne, also challenges as an unconstitutional tax on public employees (and a contract clause violation) the increase in employee rates, designed by the Legislature to replace those millions of dollars in State aid to employers for retirement costs removed from the State's budget. The lawsuit seeks a preliminary injunction and a hearing should be scheduled in matter of weeks. Stay tuned!

AAUP-NH wins Arbitration case

Arbitrator finds UNH acted arbitrarily and capriciously!

June 29, 2011

An arbitrator today ruled that UNH breached its CBA with the AAUP (professor Union) by treating one of its renowned Professors capriciously by refusing her access to her department's graduate students for research projects. Read decision here. Attorney Molan, who prosecuted the case, summed up the mater this way : "Academic jealously run amok"!

LGC loses 28-a lawsuit

May 18, 2011

Not a good stretch for the leadership at the Local Government Center. The recent decision of the Merrimack County Superior Court in the matter of the City of Concord, et al v. The State of NH only continues the theme that LGC cannot be trusted or believed. The LGC lobbied hard for the adoption of a phony accounting scheme that artificially lowered employer rates for a decade and built the NHRS's current unfunded accrued liability, only to lobby now that employees should pay that debt; their lawyers advise ,and the LGC believes, that they are not subject to RSA 91-A, only to be told otherwise by the NH Supreme Court (twice); the LGC and their lawyers argue that RSA 5-B allows for the retention of huge surplus, when NH Secretary of State confirmed otherwise; the LGC lawyers say that RBC (the "bloat") is a measure of reserves, but LGC's own experts say RBC is known "by the world" as a measure of surplus (which must be returned to members under current law); and now the LGC says 28-a somehow prevents the state from reducing its financial aid for local employer retirement obligations, only to be told otherwise by the courts! Wrong, wrong, wrong, wrong and wrong again. The sin is that the taxpayers and employees are funding these misguided strategies. Stay tuned, there's a bad moon on the rise for the LGC (even they know it!)

LGC Should Return Millions to Cities & Towns

May 11, 2011

Today the secretary of state has confirmed what PFFNH and our litigation efforts over the years have always known: the LGC hordes taxpayer, employee and retiree money all to fund efforts that often time hurt public employees. We applaud the secretary of state and his staff for taking the reins and demanding the return of 100 million dollars. LGC issued this press release in response to the Secretary of State's release. Stay tuned for more soon! Maura Carrol's letter to LGC members here.

Meeting of the Committee of Conference on SB3

May 9, 2011

The Committee of Conference convened today for their first meeting on SB3. Senator Bradley had a long agenda covering all the major issues the House and Senate differ (see side-by-side comparison). As expected, agreement was reached on several issues, including effective date of 7/1/11 (rate increase) and 12/1/11(everything else), continuing the freeze on medical subsidy and eliminating gain sharing. The next meetings are scheduled for Thursday, May 12^th at 10:30 in room 201-203 of the LOB and Friday, May 13^th at 11:00 in room 306-308 of the LOB. Stay tuned for further developments!

Molan Milner Krupski now on Facebook!
April 12, 2011
We just wanted to let you know that Molan Milner and Krupski now has a Facebook page! Be sure to check it out here. We just posted the Committee vote on the right to work bill. Please like us to receive our posts on breaking State House and other Labor news.
State Employees’ Association will be Adjuncts’ Collective Bargaining Representative
Feb 11, 2011
Adjunct faculty members in the Community College System of New Hampshire have formed a union.The Public Employee Labor Relations Board has ruled that a majority of the System’s adjuncts had signed authorization cards selecting the State Employees’ Association as the new collective bargaining representative for the 557 eligible adjunct faculty members. The SEA already represents full-time professors as well as clerical, maintenance and other employees of the College System. MMK's John Krupski will be heading up talks for their initial CBA!
Groundbreaking ruling for Sanford Firefighters...
Feb 3, 2011
The Maine Labor Relations Board has ruled , for the very first time, that grievance procedures do indeed survive the expiration of contracts, thus allowing the Sanford Firefighters to arbitrate the claim that the Town improperly changed overtime eligibility rules. Congratulations to IAFF Local 1624 and MMK Attorney John Krupski! Decision here.
Exeter Firefighters win at NH Supreme Court!
Jan. 10, 2011.

Congratulations to IAFF Local 3491 and MMK Attorney John Krupski convincing the Court to reverse the PELRB dismissal of their Unfair Labor Practice (ULP) Charge. The ULP involved important issues of minimum manning and the assignment of bargaining unit work outside the Local's unit -- matters the contract says are 'non grievable'. But the Local pressed on to the PELRB as by statute, a contract violation is a ULP. The PELRB dismissed the case as a matter of contract. The Supreme Court reversed ruling that statutory rights to file Charges at the PELRB are rights that exist in addition to any contract remedies and agreeing not to arbitrate a matter is not an agreement to waive the right to file with the PELRB.
An important decision as the law has been a bit unclear as to the interplay between PELRB rights when exisitng contracts cover the same subject matter. Great win for labor!. Decision is here.
SEIU 560 to fight Dartmouth's subcontracting efforts!
Oct 15, 2010. SEIU Local 560 will fight the College's attempt to outsource bargaining unit work. Read about it here.
Wolfeboro Fire Local wins injunction!
September 28, 2010 Today the Carroll County Superior Court granted a Local 3708 request for a temporary injunction and won a big battle against their Town who - in the middle of bargaining - decided to not recognize the Local or their contract. Th Town claims the vote authorizing the Selectboard to bargain with the Fire Fighters could be rescinded by the Board. The Court ruled that claim was not likely to prevail. Nice work Local 3708 and Attorney John Krupski! Read the decision here.
MMK Attorneys present at National Troopers Coalition / new RTK decision is out!
Sept. 15 2010 Attorneys John Krupski and Glenn Milner were honored to present an FLSA seminar to State Troopers and Highway Patrol Officers from across the country at the National Troopers Coalition convention that took place in Portsmouth NH hosted by the New Hampshire Troopers Association. View the presentation here.
Also, a recent decision from the NH Superior Court has granted access to the Union Leader, under the right-to-know law, to the names and pension amounts of the top 500 pensions paid out by the NHRS. Read it here.
Lawsuits Update
July 23, 2010
Here's a quick update on some pending cases affecting NH public sector unions and employees/retirees:
SEA retiree under 65 case : This is a case challenging the Constitutionality of portions of HB2 that require a 65$ or 130$ dollar monthly deduction from NHRS pension checks for retired State employees, under the age of 65. We filed the brief today at the NH Supreme Court, read it at our downloads page. Opposing briefs are due Aug 24 and oral argument will be scheduled several weeks after that. Stay tuned!
SEA Community College Case : In this case, the SEA successfully sued the State to require the Community College System to obey the rehire preferences contained in HB2. The State has appealed the case to the Supreme Court : State's brief is due Aug. 12 and the SEA brief is due Sept. 7.
PFFNH V LGC : In a series of cases filed against the LGC (see the downloads page for details), PFFNH is challenging the redaction efforts made by LGC in documents PFFNH successfully sued to get under 91-A. A further hearing is scheduled in Superior Court on Aug. 2. As well, PFFNH is challenging the legality of the LGC in its use of health insurance money it receives (more the 340 million dollars annually!) . That case is scheduled for hearing Nov. 1.
Coalition case : This is another Constitutional challenge involving the legislative changes effected by hb1645 to the definition of 'earnable compensation' in the NHRS statute. This case is winding its way through the Superior court with hearings expected to be scheduled this fall. Documents are available on the downloads page.
Trooper decision : Unfortunately, today the NH Supreme Court overturned a PELRB victory earned by NHTA on behalf of two Troopers unfairly criticized over the use of benefits guaranteed under contract. The ruling is here. While this case does confirm management's right to comment upon performance issues, importantly, this narrow decision does not mean in any way that when adverse action is taken based upon adverse references in evaluations (discipline etc), the employee cannot grieve that action : they certainly can!
Lawsuits update.
May 24, 2010 Here's a quick update on some of the cases pending that affect New Hampshire's public sector labor community:
Coalition case : This is the challenge to the changes made by HB1645 to the retirement law (RSA 100-A) and mainly focuses on the change in the definition of "earnable compensation", the change in the COLA guarantee, and the change to the medical subsidy escalator. Recently, the Coalition amended its lawsuit to include related claims regarding the 250 million dollar diversion from the Special Account to the fund's corpus and the HB653 drastic change to the funding mechanism for the Special Account. Read the Amended Petition as well as the Coalition's motion for summary judgment on the downloads page. Scroll down to the "Retirement Coalition (NHRSC) Lawsuit" section.
PFFNH / LGC : Today the PFFNH filed yet another 91-A lawsuit against the LGC based on the refusal of LGC to provide documents and minutes (sound familiar) that relate to the LGC's finances and our claim that they unlawfully divert health insurance payments to other, unrelated purposes. Also, the lawsuit raises the legal question as to whether the LGC may reorganize in a manner not expressly authorized by state law. Read the lawsuit filing on the downloads page.
Also, the committee of conference meeting on HB1393, the amendment on which provides the Secretary of State the needed and expanded oversight of the LGC, is scheduled for this Wednesday (LOB 302 1PM).
SEA/ Under 65 case : this is the case challenging the legislative attempt (HB2) to deduct from current State employee retirees' pension checks up to 130$ per month to extract a health insurance copayment. The Supreme Court has recently accepted the case for hearing before the full court to review the decision of the trial court that , although HB2 impaired vested rights, the deductions do not amount to a "substantial" impairment. Stay tuned for the briefing schedule to be issued soon. There's more on this case on the downloads page.
PFFNH files class action lawsuit .......
Friday March 12, 2010 Yesterday PFFNH sued the Local Government Center and HealthTrust in an effort to secure the return of millions of dollars of health insurance payments the LGC has diverted since 2003 for the purpose of funding a workers' compensation program and other endeavors unrelated to the cost of providing health insurance to public employees - both active and retired. As a result of winning two previous right-to-know lawsuits against the LGC in the NH Supreme Court, PFFNH now knows that the LGC has skimmed 1% of health insurance contributions (which in 2008 totaled over $340 million dollars) beginning in 2003.
In addition, the class action lawsuit seeks the return of over $68 million dollars in excess earnings and surplus the LGC has amassed over the last 7 years. This money - which is above and beyond the money needed to pay for claims, administration, catastrophic insurance, and reserves - by law (RSA 5-B:5, I(c))must be returned to member cities and towns and not retained by LGC to fund other programs, as well as high salaries and benefits. Oh yes, a big chunk of that money also belongs to active employees who contribute large sums for health insurance and retirees who have to pay 100% of their health insurance tab.
Did the LGC ever tell retirees that they were funding a workers' compensation plan ?
Did the LGC ever tell an active employee (or their city or town) that the health insurance payment they make is used by LGC to fund a new workers' compensation program - even though they do not participate in that program ?
Did the LGC tell anyone they were keeping $68 million dollars in a 'rainy day' or 'pandemic' fund because that is what the LGC Board believes to be best - even though the LGC Board is not accountable to the employees or taxpayers who foot the bill?
The LGC responds by saying the firefighters don't understand and that the $68 million dollar rainy day fund is necessary to stabilize the cost of health insurance. The LGC is right in this respect : we do not understand how it is that the LGC can decide to ignore the law and refuse to turn back excess earnings and surplus; we don't understand why the LGC needs to over charge for health insurance in order to keep premiums stable; we don't get how the $600,000.00 in NHMA dues pays for the $7 million dollar payroll of LGC ; and we don't understand why the LGC is suing the State for the return of $27 million dollars in their 'unfunded mandate' lawsuit while they have accumulated over $130 million dollars of public money in net assets which they themselves refuse to return.
It gets better : the Secretary of State is expected to issue its report in the next two weeks. You can follow the case filings and coverage on the downloads page. Stay tuned!

In other news, Manchester's tax cap case has reached the NH Supreme Court - "Keep Manchester Moving" , a coalition arguing that taxing authority cannot be wrestled from Manchester elected officials filed its brief last week. Read it here. Good luck , labor is closely watching this and the other tax cap initiatives around the State.
SEA wins 'rehire' lawsuit ... LGC to sue the State...
March 5, 2010. The State Employees' Association won a significant victory in Merrimack County Superior Court establishing that the Community College System of New Hampshire must comply with the rehire preferences granted to laid off State employees in House Bill 2. Read the decision here. Monitor coverage here.
Also today, speaking of HB2, it was reported that the Local Government Center will in fact file a lawsuit against the State challenging the reduction in the amount the State pays on behalf of municipalities. Hmmm... the LGC wants the State to return some 27 million dollars to New Hampshire's cities and towns.... what about the hundreds of millions of dollars of public money they hold in their bank account? Stay tuned!
Finally, the PELRB ruled that Governor Lynch did in fact commit an unfair labor practice by publicly commenting on the status of contract talks while the State and SEA were negotiating under ground rules that forbade such conduct. Read the decision here. The PELRB also curiously ruled that the Governor did not commit a similar violation when he sent State employees an email at work urging them to vote for a tentative agreement that was ultimately rejected by the Union. The SEA is considering an appeal.Monitor coverage here.
Lawsuits update !
February 12, 2010.
Here's a snapshot of where the pending lawsuits are involving New Hampshire's Labor Community :
PFFNH v. LGC
Following the decisive victory at the New Hampshire Supreme Court, the LGC did provide some, not all, of the information the Firefighters have requested.Taking the LGC up on their new promise to be more open and cooperative, PFFNH has issued renewed requests and await a response. The press reports have been impressive , and the Union Leader (yes, the Union Leader) even thanked PFFNH President David Lang in today's editorials! See more on the downloads page, including today's filing requesting that the Superior Court take up the remanded issue of attorney fees.
SEA v. State (Retiree health insurance case)
This important Contract Clause, Constitutional challenge to the State's ability to pass laws that take away vested rights of retired public employees will be heard next Thursday. The SEA today filed a responsive pleading with the Court that summarizes our position and it , and other documents, are posted on the downloads page. A decision in this case will have an impact on other cases filed by Labor, such as......
NH Labor Coalition v. State
This case was filed by both Union (SEA, PFFNH, AFT, NEA, NEBPA) and non Union Association groups (NHPA, School Administrators, Fire Chiefs, Police Chiefs, Retired Teachers) challenging the changes made by HB1645 to existing pension benefits : including the definition of earnabe compensation as well as the COLA and medical subsidy benefit. A pre-hearing conference was held in Court on January 15 and deadlines for case submission on summary judgment were determined. As well, today we filed the objection to the Retirement System's Motion for Partial Dismissal. The pre-hearing order, our filing today, and other public documents are available here.
SEA v. State (bumping rights)
This is another Contract Clause challenge to the State's attempt to suspend bumping rights for laid off State workers with 10 or more years of experience. We say, as did the Legislative Committee (JLCAR) that took up the measure in 1992, suspending these vested rights without just compensation violates the Constitution. This case is scheduled for a pre-hearing conference March 22. You can track the progress of this case on our downloads page.
JUA case (Tuttle & a. v. NHMMJUA & a.)
Labor has been closely watching this case which involves the State's attempt , via HB2, to 'grab' up to 110 million dollars out of a medical malpractice trust fund established by the NH Insurance Department. This fund is made up wholly of private funds paid by medical malpractice policyholders (Doctors, e.g.) but the Governor, on advice of then Attorney General Kelly Ayotte, believed that the money could be transferred to the State's General Fund because the JUA was created by state law. Not so, said a majority of the NH Supreme Court, ruling that the Contract's Clause of the Constitution prevents the State from enacting laws that impair vested rights. Sound familiar? The State decision was handed down January 28th but the State battles on and has filed a motion to reconsider (available on our downloads page). So, while this case is being used by the Governor to threaten more layoffs , it is welcome news from the Court that the Contract's Clause is, in fact, a powerful and legitimate constraint on Legislative power. This holding will help our other pending cases !
PEW Center issues pension report.
February 21, 2010 The Pew Center issued its report on the status of public pensions across the country with the headline that , collectively, the unfunded liability number has reached the trillion dollar level. The report is here. The report does underscore what NH Labor leaders have been repeating to lawmakers : the unfunded liability problem was caused by the downturn in the market and legislative tactics that have for years allowed employers to pay much less than they actually owe. Yet, increasingly it is the employees that are looked at to solve the problem. In fact, the PEW report lists factors that make a fix more difficult, in their view; all of which have been the subject of legislative action in New Hampshire : age of retirement (HB590), COLA's (HB1645), sharing excess returns (HB653), 'double dipping' (HB1576), and 'spiking' (SB108).
This report has received a great deal of press (See Union Leader article here) and it will , no doubt , only feed those lawmakers eager to blame the employees and seek further reductions in benefits. Stay tuned!
Also last week, the SEA's Constitutional challenge to HB2 and its requirement that current retired State employees will have their vested pension benefits reduced by up to 130$ per month was argued before Merrimack County Superior Court Judge Richard McNamara. The two hour hearing was spirited, to say the least : the SEA arguing that pension checks, once earned and vested, are protected by the contract's clause and NH constitutional provision pt. 1, Art. 36-a. The State counters that the pension checks are not being reduced but merely garnished. The Retirement System claimed that they 'have no dog in the race' but spent a considerable amount of time arguing against the retirees. Look for a decision in the case in a month or two.