He escuchado algunos abogados argumentar que el caso de In Re City of Stockton, 526 B.R. 35 (Bank. E.D. Cal. 2015) , es una situación similar a la de PR y por lo que aquí se dice es que no se tiene que reducir pensiones. Creo que la Legislatura logró un gran triunfo al evitar los cortes de pensiones pero quiero hacer claro que la situación en Stockton, San Bernardino y Detroit son muy diferentes a las de PR. En ese caso el Tribunal indicó lo siguiente, a las páginas 60-61:

Second, the assertion that pensions are not affected by the City’s plan of adjustment incorrectly suggests that employees and retirees are not sharing the pain with capital markets creditors. To the contrary, the reality is that the value of what employees and retirees lose under the plan is greater than what capital markets creditors lose.

One result of this case is that the City terminated its program for lifetime retiree health benefits valued on the schedules at nearly $550 million for existing retirees. Although Franklin says that sum is too high, it concedes that the value is at least $300 million. Prospective retirees also lose that expectation and receive nothing in return. In contrast, Franklin loses about $30 million.

Likewise, pension liabilities are also indirectly reduced as a result of curtailed pay and curtailed future pay increases in the renegotiated collective bargaining agreements. . . .

When evaluating the financial situation of the City, it is misleading to focus on comparing the situation on the day the chapter 9 case was filed with the situation at the time of confirmation. Any useful before-and-after view requires that one take into account the effect of the effort to reduce municipal costs during the several years before the case was filed. By the time the case was filed, the City had been pared down to core functions and been reduced to a situation in which such essential services as police and fire were being operated below sustainable standards. The murder rate had soared. Police responded only to crimes in progress. A wrecker had to accompany fire engines on emergency calls.

During the pre-filing mediation required by California law, agreements were achieved modifying all unexpired collective bargaining agreements. And there had been substantial progress on a new contract to replace the expired police contract, which was completed several months after the case was filed.

The quid pro quo for the concessions made by labor in the new and modified collective bargaining agreements was the City’s promise not to modify pensions subject to the servicing contract with CalPERS. Pensions would be neither increased nor decreased. This is neither irrational nor inappropriate. Pension underfunding is not a burning issue for the City, which is current on its pension contribution obligations. As noted above, on an actuarial basis the City’s two plans are funded at 82.6 percent and 88.5 percent, which is below the goal of 100 percent. This shortfall is primarily attributable to CalPERS’ recent reduction in its expected rate of investment return. Future required payments to return to a better funded status are built into the budget on which the plan is based; they are for a finite number of years and do not support the argument that the required contributions to CalPERS are on an endless upward spiral. The evidence suggests that funding ratios are improving, rather than deteriorating. To mandate that pensions be modified would so fundamentally change the balance in the labor negotiations as to unravel all of the concessions achieved.

En el caso de PR, no existe ese quid-pro-quo con las uniones ya que en el Gobierno (excluyendo las corporaciones públicas) no existe el derecho a huelga que hay en California.

En el caso de San Bernardino, la razón de que no se afectaron las pensiones fue una práctica

The San Bernardino disclosure gave the same basic reason as Stockton for not attempting to cut pensions in bankruptcy: Pensions are needed to be competitive in the job market, particularly for police.

“The city concluded that rejection of the CalPERS contract would lead to an exodus of City employees and impair the City’s future recruitment of new employees due to the noncompetitive compensation package it would offer new hires,” said the San Bernardino disclosure.

“This would be a particularly acute problem in law enforcement where retention and recruitment of police officers is already a serious issue in California, and where a defined benefit pension program is virtually a universal benefit.”

En Detroit, como se explica en este artículo, si se cortaron beneficios a las pensiones

General workers endured a 4.5 percent base cut in pensions and the elimination of an annual cost-of-living increase. The pensions of police and firefighters weren’t cut but an annual 2.25 percent cost-of-living adjustment was reduced to about 1 percent.

The city also sought to recoup $239 million from the optional annuity savings fund accounts of some general retirees who were credited with interest earnings that exceeded the retirement system’s actual investment returns.

The bankruptcy also helped Detroit slash its promised retiree health insurance benefits from $4.3 billion to $450 million.

Además de estas ciudades donde las pensiones han sido afectadas, Prichard, Alabama que radicó en el 2009 (esta ciudad dejó de pagarle a sus pensionados antes de radicar Capítulo 9) y Central Falls, Rhode Island en el 2012.

Como vimos, había razones claras para no cortar las pensiones en esas ciudades que no existen aquí. Bajo el 1003 aprobado por la Cámara no se cortan pensiones, sin que concurran las circumstancias que ocurrieron en San Bernardino ni los acuerdos en Stockton. Como siempre digo, hay que leer los casos, no dejarnos llevar por lo que otros dicen.


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