New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans

131 So. 3d 412, 2013 La.App. 4 Cir. 0873, 2013 WL 6923719, 2013 La. App. LEXIS 2661
CourtLouisiana Court of Appeal
DecidedDecember 18, 2013
DocketNo. 2013-CA-0873
StatusPublished
Cited by6 cases

This text of 131 So. 3d 412 (New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Orleans Fire Fighters Pension & Relief Fund v. City of New Orleans, 131 So. 3d 412, 2013 La.App. 4 Cir. 0873, 2013 WL 6923719, 2013 La. App. LEXIS 2661 (La. Ct. App. 2013).

Opinion

DANIEL L. DYSART, Judge.

_|jThe City of New Orleans (the “City”) and its co-defendants seek review of the district court’s grant of a writ of mandamus directing the City to “immediately budget, appropriate for and pay to the New Orleans Fire Fighters [sic] Pension & Relief Fund ... the sum of $17,524,329 as the Actuarially Required Contribution to [414]*414the ‘New System’ administered by the Fund.”1

The City raises several issues on appeal, the most significant of which is whether mandamus is the proper procedure for the enforcement of a statutory provision regarding the funding of the New Orleans Firefighters Pension and Relief Fund (the “Fund”). The City contends that the statute upon which appellees rely, and upon which the trial court’s judgment is based (La. R.S. 11:3384), is [ 2vague and ambiguous. It further maintains that, because of the statute’s ambiguity, it cannot be used in the context of a mandamus proceeding, as that applies strictly to “ministerial” acts which are, by their very nature, definitive and not subject to interpretation. The City also contends that the statute is discretionary and creates no affirmative obligation on its part to contribute to the Fund.

We have reviewed all of the issues raised by the City in this appeal. For the

Amount allegedly owed

$13,913,495

$23,782,819 (or $1,981,901.58 monthly)

2012 $29,424,359

The Petition thus maintained that, by December 31, 2012, the cumulative projected amount of the underfunding would be reasons set forth below, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On July 19, 2012, the Trustees of the Fund filed a Petition for Writ of Mandamus (“Petition”), requesting that the court order defendants to pay sums allegedly owed to the Fund by the City pursuant to La. R.S. 11:3384. More particularly, the Petition alleged that an actuary, retained by the Fund as required by La. R.S. 11:3363(D),2 determined certain amounts to be paid into the fund for the years 2010 forward. The City contributed those funds through July, 2010. However, according to the Petition, beginning in August, 2010, the City unilaterally reduced the amount it contributed to the Fund and has continually failed to make contributions based on the figures determined by the actuary.

The Petition alleged that the amounts owed by the City and the City’s contributions have been as follows:

Amount contributed
$10,635,430
$750,000 per month (resulting in a shortage of $12,546,131)
$11,900,0003

$34,163,319. The Petition sought the immediate appropriation and payment of [415]*415$17,524,359 by the City to the Fund.4

In response to the Petition, defendants filed an Answer, along with Exceptions of No Cause of Action, No Right of Action and Unauthorized Use of Summary Proceedings. The Exceptions were denied after a hearing held on December 19, 2012. Defendants applied for a supervisory writ with this Court, which was denied on December 28, 2012. The Louisiana Supreme Court also denied defendants’ writ application. New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans, 13-0009 (La.1/4/13), 106 So.3d 540.

In the interim, on September 11, 2012, defendants filed a Reconventional Demand against the Trustees, alleging that they mismanaged the “investments of the assets of the Fund.”5 The Reconventional Demand sought injunctive relief, precluding the Trustees from using certain financial consultants and damages in the form of “any amounts that [the City] has been or will be called to pay into the Fund due to any deficit pursuant to La. R.S. 11:3361 and 11:3375.” Defendants also sought the right to take over management of the Fund.

14Trial on the mandamus was held on January 7-8, 2013. During the course of the trial, counsel for defendants attempted to cross-examine a witness regarding investment choices made by the Trustees. The trial court sustained the Trustees’ objection to this line of questioning and refused to allow any evidence of the Trustees’ fiscal mismanagement as alleged in the City’s reconventional demand. A supervisory writ to this Court on this issue was denied on January 8, 2013.6

On March 28, 2013, the District Court issued its Judgment, ordering that a writ of mandamus issue directing the City to immediately budget, appropriate and to pay to the Fund the amount of $17,524,329 together with judicial interest from date of demand. A Motion for New Trial filed by the City was denied and this timely sus-pensive appeal followed.7

DISCUSSION

The City’s required contributions to the Fund

The Firefighters’ Pension and Relief Fund is made up of two distinct retirement plans: the “old system,” covering firefighters employed prior to January 1, 1968 and the “new system,” covering all firefighters employed after December 31, 1967, as well as those employed before 1968 who have elected to come under the new system. The distinction between the two systems was detailed by this Court in Rapp v. City of New Orleans, 98-1714, pp. [416]*41631-32 (La.App. 4 Cir. 12/29/99), 750 So.2d 1130, 1149:

... New Orleans firemen contributed retirement income into one of two retirement plans. Employees, who were hired prior to January 1, 1968, invested into a benefits package, which is commonly referred to as the “old” Isplan. The old plan was not actuarially funded in advance. In other words, the calculations of firemen’s benefits in this plan did not consider the extent of retirement payments to an individual employee based on life-expectancy figures. Also, the contributions made by the current employees under the old plan are not invested to cover future benefits. Therefore, the old plan was referred to as the pay-as-you-go plan. Additionally, the employer did not make any contributions in the old plan ...
Conversely, employees who were hired after January 1, 1968, invested in an actuarially determined defined benefit plan, which is known as the “new” plan. Under the new plan, both the employee and the employer contribute to the plan, and interest accumulates on these contributions from various outside sources. In the new plan, benefits paid to the employee are funded on an overall basis, meaning the benefits due to each individual employee was funded by the pool, not by funds accumulated, set aside, segregated or accounted for separately for that individual.

There is no question that the City is to contribute to the Fund; however, the parties dispute what funding is statutorily required of the City. The City argues that the only mandatory funding requirement for the entire Fund, old and new alike, is found in La. R.S. 11:3361, which provides, in pertinent part, that:

[T]he city shall pay into the fund annually one percent of the revenues derived from all licenses issued by the city, except the drivers and chauffeurs licenses, and an annual appropriation in the budget of the city of a sum equal to not less than five percent of the money annually appropriated by the city for the operation and maintenance of the fire department of the city.

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131 So. 3d 412, 2013 La.App. 4 Cir. 0873, 2013 WL 6923719, 2013 La. App. LEXIS 2661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-orleans-fire-fighters-pension-relief-fund-v-city-of-new-orleans-lactapp-2013.