Judge rules Balto. County doesn’t have to re­im­burse em­ploy­ees who over­paid

Baltimore Sun - - FRONT PAGE - By Pamela Wood pwood@balt­sun.com twit­ter.com/pwoodreporter

A fed­eral judge has ruled that the Bal­ti­more County govern­ment will not have to pay mil­lions of dol­lars to em­ploy­ees who over­paid into the county pen­sion sys­tem for years.

A fed­eral judge has ruled that the Bal­ti­more County govern­ment will not have to pay mil­lions of dol­lars to em­ploy­ees who over­paid into the county pen­sion sys­tem for years.

Courts ruled in 2012 that the county’s pen­sion sys­tem was dis­crim­i­na­tory be­cause older work­ers were re­quired to pay more than younger work­ers. But U.S. Dis­trict Judge Richard D. Ben­nett ruled Wed­nes­day that the county doesn’t have to pay back the work­ers who over­paid.

Of­fi­cials said the de­ci­sion saves the county as much as $19 mil­lion in po­ten­tial pay­ments to the work­ers.

“We are greatly re­lieved to have it re­solved at this point,” said James Nolan, an as­sis­tant county at­tor­ney.

It’s not clear how many work­ers would have been due pay­ment if the rul­ing had gone the other way. The county said it would have taken years to fig­ure out how much work­ers would have been owed.

The mat­ter largely af­fected work­ers hired be­fore 2007, when the county ended its decades-long prac­tice of set­ting pen­sion con­tri­bu­tion rates based on age but only for new hires.

Al­le­ga­tions of dis­crim­i­na­tion in the pen­sion sys­tem emerged in 1999 and 2000, when two cor­rec­tional of­fi­cers lodged com­plaints through the U.S. Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion.

But the EEOC didn’t sue on the work­ers’ be­half un­til 2007, an “un­rea­son­able de­lay” that the fed­eral judge said was a fac­tor in not award­ing dam­ages.

When the com­plaints were first made, the county de­nied wrong­do­ing and sent in­for­ma­tion sup­port­ing its ar­gu­ment to the EEOC — but heard noth­ing for years, and con­tin­ued rack­ing up po­ten­tial dam­ages it might have had to pay to af­fected work­ers, Ben­nett noted.

“Bal­ti­more County had rea­son to be­lieve that its pen­sion plan con­tri­bu­tion scheme was en­tirely law­ful prior to the de­ter­mi­na­tion of li­a­bil­ity in the present case,” he wrote.

The judge also noted that mon­e­tary dam­ages haven’t been awarded in sim­i­lar pen­sion cases, and that dam­ages aren’t re­quired un­der the law that’s cen­tral to this case: the fed­eral Age Dis­crim­i­na­tion and Em­ploy­ment Act.

The pen­sion sys­tem in­cludes all county work­ers ex­cept Board of Ed­u­ca­tion em­ploy­ees, who par­tic­i­pate in a dif­fer­ent sys­tem. There are about 9,500 ac­tive em­ploy­ees and 6,000 re­tirees in the sys­tem.

County work­ers weren’t ex­pect­ing to re­cover any money from the case, said Nor­man An­der­son, pres­i­dent of AFSCME Lo­cal 921, which rep­re­sents about 700 trades work­ers in sev­eral county de­part­ments. Most of the em­ploy­ees in his union who were hired be­fore 2007 have since re­tired or moved on, he said.

Dave Rose, sec­ond vice pres­i­dent of FOP Lodge 4, which rep­re­sents county po­lice of­fi­cers, said some of­fi­cers were pay­ing 2 per­cent more to­ward pen­sions than younger col­leagues for years.

As part of set­tling the law­suit, the county and its unions agreed in April on new pen­sion con­tri­bu­tion rates for all work­ers — in­clud­ing those hired be­fore 2007 — elim­i­nat­ing age-based rates.

The case had bounced around the fed­eral court sys­tem for years be­tween rul­ings and ap­peals, and al­most made a trip to the U.S. Supreme Court, but the high court re­fused to hear it in 2014. The judge’s de­ci­sion this week closes the case, un­less the EEOC files an ap­peal. Of­fi­cials with the EEOC de­clined to com­ment Fri­day.

Mean­while, the county lost a de­ci­sion in an­other long-run­ning em­ployee law­suit this week. The Mary­land Court of Ap­peals ruled against the county Thurs­day in a case over how much po­lice re­tirees had to pay for their health in­sur­ance.

Courts pre­vi­ously ruled that the county had to pay back more than $1.6 mil­lion to re­tired po­lice of­fi­cers who were over­charged for their health in­sur­ance. The county fought the case for years and, at one point, the FOP asked a judge to hold County Ex­ec­u­tive Kevin Kamenetz in con­tempt of court for not pay­ing the money.

The county even­tu­ally paid but con­tin­ued to fight the rul­ing. The money has been held in an es­crow ac­count.

The case started in 2007 and at least 10 FOP mem­bers who were due money have died, Rose said.

County of­fi­cials de­clined to com­ment on the case Fri­day be­cause its lawyers hadn’t yet re­viewed the rul­ing.

Writ­ing for the Court of Ap­peals, Judge Robert N. McDon­ald said the county didn’t make any com­pelling new ar­gu­ments in its lat­est ap­peal. McDon­ald quoted “a noted philoso­pher in an­other line of work” — late base­ball great Yogi Berra — say­ing the lat­est re­view of the case was “like deja vu all over again.”

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