The House of Representatives Passes H.R. 82 – Social Security Fairness Act of 2023

    On November 12, 2024, the United States House of Representatives passed H.R. 82, the “Social Security Fairness Act of 2023” by overwhelming bipartisan margins. This bill has been top priority for public safety labor nationwide, including the IAFF and PORAC, because it eliminates the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO), provisions that unfairly punish retired police officers, fire fighters, and other public employees. Although this Bill was was co-sponsored by 303 of 435 members of the House of Representatives, it had stalled in the powerful House Ways and Means Committee for nearly two years.

    "This discharge petition marks a critical victory in our long fight for fair retirement benefits for peace officers and public servants,” said Brian R. Marvel, President of PORAC. 

    This bill was introduced in January of 2023 with the purpose of repealing provisions from the Social Security Act (42 U.S.C. 401, et seq.)  that reduce Social Security benefits for individuals who receive other government benefits, such as state or local pensions. Specifically, this bill eliminates the government pension offset which reduces Social Security for spouses, widows, and widowers who also receive their own government pensions. 

    Additionally, the bill eliminates the windfall elimination provision which could have reduces Social Security benefits for individuals who also receive a pension or disability benefit from an employer that does not withhold Social Security taxes from the individuals’ paychecks. The Bill strikes 42 U.S.C. 402(k)(5) which outlined how an individual’s Social Security benefits would be reduced if they received additional periodic benefits from federal, state, local, or any other government service within the last five years. 

As such, the provisions outlining spousal benefits are only contingent on the restrictions put forth in Section 202(q) and no longer are limited by Section 202(k)(5) should the spouse (and widow/widower) receive benefits of their own. Subsection (q) reduces a spouse’s insurance benefits should the employed individual begin receiving retirement benefits before reaching the statutory retirement age. Elsewise, Section 202 subsections (b)(2) and (c)(2) dictate that spousal benefits for each month are to be one-half the primary insurance amount of the primary insurance amount of his or her spouse (or, in the case of a divorcee, former spouse.) Under subsections (e)(2)(A) and (f)(2)(A), a widow’s or widower’s benefits for each month are to be equal to the primary insurance amount of his or her spouse. 

The bill also struck provisions altering the computation of benefits under the Social Security Act. Section 415 subsections (a)(7), (d)(3), and (f)(9) were all struck which covered delayed retirement, continued work after retirement, and the windfall elimination provision. Subsections (a)(7) and (f)(9) increased benefits for an individual who delayed claiming benefits beyond their full retirement age, thus incentivizing individuals to remain actively working, capping at age 70. Subsections (a)(7) and (d)(3) comprise the Social Security Windfall Elimination Provisions which reduce an individual’s Social Security benefits to reflect the person’s entitled to other benefits (such as old-age insurance or retirement benefits).  

    This bill repeals the Windfall Elimination provision and Government Pension Offset for individuals as well as their spouses or widow(er)s who receive benefits of their own from the government. These eliminated provisions have unfairly reduced retirement benefits for peace officers, firefighters, and their families as well as other public employees merely because they and their spouses can also claim alternative benefits. Additionally, by incentivizing increased service beyond the retirement age and penalizing early retirement, individuals are compelled to make decisions to keep working when doing so may not benefit them or their families. 

    By eliminating these provisions, firefighters or officers who are forced to retire early due to the demanding aspects of their careers can finally receive the full financial security in retirement benefits that they spent their entire career paying into. With the passing of this bill, the House of Representatives has made a critical step in ensuring financial stability for public employees in their post-retirement years. 

Now that H.R. 82 has passed the House, the bill moves to the Senate. The Senate version of this Bill has 62 co-sponsors, so the filibuster should not prevent enactment of this important Bill. 

IAFF General President Edward Kelly aptly stated, “[w]hile we’re proud of the work our team did to get this bill through the House, this is only half the battle. Now it’s time for Senators to step up and send this bill to the President’s desk.”

California Appellate Court of Appeal Upholds City Manager’s Decision to Terminate Officer and Reject Advisory Arbitration Award

    

    On September 13, 2024, the Fourth District Court of Appeal of California ruled in Ramirez v. City of Indio, finding that the Memorandum of Understanding ("MOU") between the City of Indio and the Indio Police Officers' Association ("POA") did not constrain the City Manager's authority to revoke an arbitrator's advisory findings and recommendation supporting an officer's reinstatement. 

    Former police officer Sergio Ramirez filed for writ of mandate challenging the determination by the Indio City Manager, upholding the decision to terminate Ramirez's employment, contrary to the arbitrator's recommendation. 

    Ramirez had been employed by the City of Indio Police Department since 2005. In August of 2016, he was charged with rape and two additional counts of sexual assault. Subsequently, the City placed him on administrative leave, asked him to turn in his work cell phone, and initiated an internal affairs investigation. Ramirez was acquitted of all criminal charges. However, in 2019, Ramirez was terminated by the Chief of Police. 

    Ramirez administratively appealed the decision under the "Appeals Procedure" outlined in the MOU between the City and the POA by requesting an evidentiary appeal to arbitration. The mutually agreed upon arbitrator conducted a three-day evidentiary hearing after which it was recommended that Ramirez was reinstated with full back pay and benefits. 

    In reviewing the arbitrator's findings and recommendations, the MOU, the Chief's Notice of Intent to Terminate, the City policies, the internal affairs investigation, transcripts from the criminal trial, and associated transcripts, motions, responses, briefs, and exhibits, the City Manager issued a final written decision rejecting the arbitrator's findings and affirming Ramirez's termination. Ramirez petitioned the Superior Court for a writ of mandate challenging the City Manager's administrative decision. On May 30, 2022, the Superior Court denied the writ petition. Ramirez then appealed to the Fourth District Court of Appeals, contending that the Superior Court incorrectly interpreted the arbitrator's role in the administrative appeal procedure and the City Manager's refusal to defer to the arbitrator's recommendation violated his due process rights. 

    Under the Public Safety Officers Procedural Bill of Rights (POBRA; Gov. Code § 3300 et seq.), police officers have a statutory right to an administrative appeal of punitive action that shall be conducted in conformance with the rules and procedures adopted by the local public agency. (Gov. Code § 3304.5) Such rules and procedures were outlined in the MOU which guided the court's interpretation of Ramirez's appeal. The rules and procedures must afford constitutional due process for an officer before depriving him or her of any significant property interest in employment. The court views the MOU as a whole, rather than disjointed sections in order to effectuate the mutual intent of the parties as it existed at the time of contracting. 

    The MOU Appeals Procedure in this case was "designed to provide an appeal system for the fair and just resolution of any dispute..." Specifically, the MOU did not grant binding arbitration to the parties in the case that an appeal hearing was held. Rather, the arbitrator was permitted to render a written statement of advisory findings and recommendations. Therefrom, the City Manager was required to review the arbitrator's findings and recommendations but had authority as the final decision maker to affirm, revoke, or modify the findings as appearing warranted. 

    In his appeal, Ramirez acknowledged the City Manager's final decision-making authority. However, he argued that the MOU must be interpreted to constrain the City Manager's discretion by requiring him to defer to the arbitrator's determinations of the relevancy, weight, and credibility of testimony and evidence presented during the hearing or at least afford them great weight. The Court found that this suggested interpretation ignores the rules of contractual interpretation by disregarding the MOU's express language and framework. Nothing in the MOU indicated intent by the parties to extend the arbitrator's authority beyond the hearing itself or require deference by the City Manager. Suggesting such would circumvent POBRA by requiring that an administrative appeal not be held in conformance with the rules and procedures adopted by the public agency. Ramirez's interpretation would effectuate binding arbitration on an MOU that explicitly designated advisory arbitration. 

    Lastly, the Court found that the Appeals Procedure in the MOU more than satisfied due process requirements as Ramirez was given the opportunity to respond to the Notice of Termination in writing. Additionally, the City maintained the burden of proof at the appeal hearing while Ramirez was permitted to present evidence and cross-examine witnesses. 

    The Court ultimately affirmed the Superior Court's denial of the writ based upon interpretation of the MOU as it complies with POBRA. 

    It is important to understand that the local rules and procedures, so long as they adequately retain an officer's constitutional due process rights, govern administrative appeals. If an MOU does not order binding arbitration or grants authority to a city official rather than an arbitrator, the results of an appeal hearing through arbitration may not be binding and a city may still choose to uphold an administrative decision.