Author Topic: Perils of Church-Related Pensions  (Read 9953 times)

Charles_Austin

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Re: Perils of Church-Related Pensions
« Reply #90 on: November 01, 2010, 02:05:05 PM »
John Theiss writes:
Charles, if none of the posters here can be sure that we have "all the information" about the AF situation and therefore are not qualified to speak to the issue of pensions, how does the ELCA office of public policy (by whatever name) insure that it has "all the information" on every issue to which it speaks?
I comment:
Because we speak to issues, pending legislation and regulations, rather than to particular cases. Sometimes we file an amicus brief and when we do that, we do indeed have all the documents and file according to our interpretation of what is in the documents pertaining to a certain case.

John Theiss writes:
I noticed that such an office must continue to be funded in a previous post you made, as to not do so would somehow mean the ELCA was failing to address injustice in our world.
I comment:
That is an overstatement. Addressing the institutions and systems of government is not the only way we address injustice in our world. But it is one of the ways we do that, and I am glad we do address government. I suspect the "pro-life" people in the LCMS are also glad that their church addresses government with regard to legislation relating to abortion.

James Gustafson

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Re: Perils of Church-Related Pensions
« Reply #91 on: November 01, 2010, 02:10:00 PM »
Non sequitur of the day award. No financial remuneration involved.

I figured if the Constitution/Bylaws are quoted as authorities, why not scriptures. Why shouldn't we wonder if pension plans, life insurance, or even social security, indicate a lack of trust that God will provide what we need in the future?

Remember that during a very conservative time in my Christian life, I associated with people who said that buying life insurance indicated a lack of faith in God.


I understand.  However, there are more quotes about how the management is treating the employee, such as; I say this to your shame. Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers? To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded? But you yourselves wrong and defraud—even your own brothers. (1 Cor. 6)
« Last Edit: November 01, 2010, 02:28:27 PM by James Gustafson »

James_Gale

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Re: Perils of Church-Related Pensions
« Reply #92 on: November 01, 2010, 02:44:39 PM »
I am a lawyer but I don't know much about the laws regarding pension rights.  So I won't offer any substantive opinions regarding the AF lawsuit.

For those interested, here's the complaint from the case.  I didn't find the briefs related to the dismissal motions on any "free" site and don't want to pay to get them from the court's site.  Arguments on the dismissal motions likely will take place in December.

"Church plan" is a term of art.  The government in recent years has narrowed the scope of organizations that it will permit to form such plans.  Ultimately, though, the courts decide.  

The ELCA constitution standing alone doesn't resolve the question regarding the ELCA's legal responsibility for the AF pension plan.  You'd need to see all the relevant governing documents.  And I'll bet that at least some of those documents wall the ELCA off from legal responsibility for the AF pension plan.  But that's just a guess.

And as I said, the law in this area is complex.  So we'll wait and see.

Now, the question of moral obligation, well . . . .

edoughty

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Re: Perils of Church-Related Pensions
« Reply #93 on: November 01, 2010, 02:49:48 PM »
Full disclosure:  I am one of the AF pensioners.  I only worked there 5 years, but that was the plan I was on.  Others, who worked their entire careers at AF in what they understood to be a ministry of publishing, are losing much more; and I feel for them.

As I understand it, part of the problem is that the money simply is not there.  

I would like to see the ELCA say, "Even though we have no financial responsibility in this case and nothing forces us to do so, we choose to help as we are able," and then undertake a fund-raising campaign to assist the pensioners.  

Thus far, that is not the route they have chosen and I confess I am disappointed in the ELCA because of it.  I know time are hard for everyone but it seems to me we might be pleasantly surprised what can happen if we just asked.

As James says, we will have to wait and see what comes of the situation.

Jay

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Re: Perils of Church-Related Pensions
« Reply #94 on: November 01, 2010, 04:28:56 PM »
I have handled a few ERISA cases, but nothing of this magntitude.  I would note that Minnesota is in the 8th Circuit Court of Appeals, so this case from the 8th Circuit I found during a quick westlaw search might be instructive on the issue of whether the AF plan is an ERISA plan or a "church plan":

Employee benefit plan for employees of nonprofit hospital corporation was not “church plan” exempted from ERISA, even though corporation imposed denominational requirement on its upper-level management and board members and required its chaplains to be ordained ministers of that denomination; denomination's state governing body played no role in corporation's governance and did not appoint or approve any of corporation's board members, corporation received no financial support from governing body, lower-level management employees were not required to be denomination members, and hospital treated patients of all faiths. Chronister v. Baptist Health, 442 F.3d 648 (8th Cir. Ark. 2006).


Steven Tibbetts

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Re: Perils of Church-Related Pensions
« Reply #95 on: November 01, 2010, 06:00:52 PM »

So I am glad that our national and synodical offices of governmental affairs speak up for the poor, the immigrants, the abused and others in need, some of whom may need that voice more that I need a bigger pension.

If only they would speak out for those abused by their own church.

The Rev. Steven Paul Tibbetts, STS
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Steven Tibbetts

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Re: Perils of Church-Related Pensions
« Reply #96 on: November 01, 2010, 06:59:24 PM »

So long as churches invest in the same world as for-profit organizations, there is no excuse for the continuation of a "church plan" exception from ERISA and PBGC coverage.


Other than the constitutional issues of the federal gov't regulating religion, which is why a church plan is exempt from ERISA and PBGC inthe first place.

The legal question will center largely around whether the AF defined benefit plan was legitimately a "church plan." The ELCA's documents make a very strong case for that.

OTOH, the Presiding Bishop and the Secretary have pointed to the very conscious decision at the ELCA's formation to spearately incorporate AFP as they deny any legal or moral responsibility for the failure of the AFP pension plan.  Which undercuts to some degree the AFP plan's regulatory status as a "church plan."


As for the moral responsibility of the ELCA, as I wrote on the day after this topic began:

The ELCA's response should be to establish something like the ELCA Special Needs Retirement Fund for the employees and retirees of the church's publishing ministry, and have a churchwide offering specifically for that purpose.


Until this is done, the Presiding Bishop and the ELCA have very little capital to be making moral pronouncements to the rest of our society.  "I was naked, and you said it was a matter of litigation and couldn't do anything."  Each day this continues, the ELCA spends more of its moral capital and, frankly, no one benefits from this with the possible exception of the lawyers recording billable hours.


Oh, and since it apparently needs to be said again: the underfunded nature of AFP's defined benefit plan is a very, very different matter than those ELCA pensioners who annuitized (portions of) their defined contributions pension plans.  Had they not done that, they would not be subject to the 9% reductions.  OTOH, they would have been subject greater losses in the market value of the how they were investing their contributions.  

Of course, there should be a churchwide offering for the ELCA Special Needs Retirement Fund for those retired ELCA pastors who, regardless of whether they annuitized or lost directly, are suffering.

Christe eleison, Steven+
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Steven Tibbetts

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Re: Perils of Church-Related Pensions
« Reply #97 on: November 01, 2010, 07:10:50 PM »
Hmmm.  Wondering if this is one of the reasons why this memo came out a couple of weeks ago:

          Augsburg Fortress stopped taking orders for churchwide-developed
          resources effective October 20, at 5:00 p.m. CDT. (Staff who are
          responsible for resource development within each unit have been
          working with us for a few months to make this possible.)

          Callers or visitors looking for churchwide products on the Augsburg
          Web site immediately will be directed to contact the new distribution
          center at 800-638-3522, ext. 2580. As of October 25, 2010, orders can
          also be placed online www.elca.org/resources.

          Northern Printing Network will manage the distribution center for us.
          You may see their name and logo (or the acronym "NPN") on invoices and
          correspondence related to orders.

          ELCA resources previously carried by Augsburg Fortress are being
          transferred to the new warehouse this week and next. Backorders will
          be filled by November 8.
The Rev. Steven Paul Tibbetts, STS
Pastor Zip's Blog

Michael Slusser

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Re: Perils of Church-Related Pensions
« Reply #98 on: November 01, 2010, 07:49:50 PM »
There is probably a back story on the AF pensions going back to the separate publishers A and F and how they were integrated at the time that they were. I have seen no data (nor am I seeking any) about how the resulting pension plan compares in promised benefits with its predecessors in the separate entities. Was the amount hiked to motivate the smooth transition? Nor have I seen anything about how the promised pension formula compares to pensions in the ELCA central organization generally. Is the ELCA being asked to subsidize a level of AF pensions that they can't afford to give (and haven't promised) to the rest of their own employees? These are all questions that can change the picture in significant ways.

Peace,
Michael
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Mike Bennett

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Re: Perils of Church-Related Pensions
« Reply #99 on: November 02, 2010, 12:58:46 PM »

So long as churches invest in the same world as for-profit organizations, there is no excuse for the continuation of a "church plan" exception from ERISA and PBGC coverage.


Other than the constitutional issues of the federal gov't regulating religion, which is why a church plan is exempt from ERISA and PBGC inthe first place.


Here's a non-lawyer, businessman argument that would probably make the lawyers here itch, and might prompt a judge to dope-slap me.

Our churches are subject to our civil laws in areas involving their Non Religious activities (those not involving religious beliefs, practice, teaching, ceremonies, etc.).  The distinctions between a church's "Religious" and "Non-Religious" activities are drawn in a way that defines Religious activities quite broadly (e.g. the ability to opt out of Social Security on grounds of religious belief, lack of sanction of giving alcohol to minors in Holy Communion, etc.).  But there are limits, beyond which a church is subject to civil laws just like anybody else, evidently without running afoul of the First Amendment.  Examples include fire and building codes, jurisdictions of civil courts to enforce contracts where a church is a party, including a mortgage lender filing its security interest at the county court house just like they do on my personal home, and, perhaps closest to the current issue, the requirment to cover church employees by workers compensation insurance.  I'm sure there are 221 years of of case law dealing with where these lines are drawn, but I don't claim to know any of those cases.

I believe that the justification for requiring workers compensation insurance is just as persuasive for requiring pension protection Neither of these has to do with a church's religious activities.  The civil authorities have an interest in protecting pensioners from a religious employer ignoring its pension promise, just as strong as protection against a non-religious employer doing the same, in the same way that an employee's injury sustained falling from a ladder at work is no less severe if "work" was a church instead of a factory or store.  I was an admirer of Milton Friedman, but I believed his notion that a tort action was the right way to deal with every damage suffered from the negligence or wickedness of another was naive and doctrinaire.  Some actions need to be forbidden, mandatorily  insured against , or both, and I think regeging on a pension promise needs to be both forbidden (ERISA) and insured against (PBGC).

Whether a publishing house's pension plan should have qualified as a "church" plan would then be a non-issue.

The lawyers can now apply their anti-itching lotion, and any judges present can dope-slap me.

Mike Bennett
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G.Edward

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Re: Perils of Church-Related Pensions
« Reply #100 on: November 16, 2010, 12:17:59 PM »
Look for "Publishing House of the ELCA" at the bottom of the page http://www.elca.org/ and consider again the degree of interconnection.  There is no direct link to Thrivent on the main page of the ELCA's website, but "Publishing House of the ELCA" suggests by it's phrasing and prominent location a close connection that ought to carry with it a level of responsibility for the burden of our neighbor as the ELCA.

Charles_Austin

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Re: Perils of Church-Related Pensions
« Reply #101 on: November 16, 2010, 12:22:39 PM »
Gregory Davidson writes (re the website):
but "Publishing House of the ELCA" suggests by it's phrasing and prominent location a close connection that ought to carry with it a level of responsibility for the burden of our neighbor as the ELCA.

I comment:
It has been said before that contracts and responsibilities, both legal and moral, are not determined by phrasing on a web page.

Steven Tibbetts

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Re: Perils of Church-Related Pensions
« Reply #102 on: November 16, 2010, 01:23:13 PM »

I comment:
It has been said before that contracts and responsibilities, both legal and moral, are not determined by phrasing on a web page.

Anything can be said, Charles.  Time will tell how judge and jury rule.

Pax, Steven+
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Bergs

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Re: Perils of Church-Related Pensions
« Reply #103 on: November 16, 2010, 01:54:30 PM »
This may also be of note here. 

ELCA Board of Pensions Trustees Announce Annuity Adjustment for 2011

http://www.elca.org/Who-We-Are/Our-Three-Expressions/Churchwide-Organization/Communication-Services/News/Releases.aspx?a=4672

This quote is interesting for a number of discussions on this board.

Quote
+ Trustees approved amendments to the ELCA retirement, medical and dental, survivor benefits and disability benefits plans to allow congregations or qualified church-controlled organizations with "common religious bonds with the ELCA" -- such as the new North American Lutheran Church -- to sponsor members in the benefit plans. The amendments were sent for approval to the ELCA Church Council. David D. Swartling, ELCA secretary, told the trustees that the topic had been discussed by leaders of the churchwide organization and the Board of Pensions. He said it had been determined to open the plans to qualified non-ELCA congregations or churches. The benefit plans that are offered will be exactly the same as plans offered to ELCA plan members.

Brian J. Bergs
Minneapolis, MN
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Maryland Brian

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Re: Perils of Church-Related Pensions
« Reply #104 on: November 16, 2010, 04:06:22 PM »
This may also be of note here. 

ELCA Board of Pensions Trustees Announce Annuity Adjustment for 2011

http://www.elca.org/Who-We-Are/Our-Three-Expressions/Churchwide-Organization/Communication-Services/News/Releases.aspx?a=4672

This quote is interesting for a number of discussions on this board.

Quote
+ Trustees approved amendments to the ELCA retirement, medical and dental, survivor benefits and disability benefits plans to allow congregations or qualified church-controlled organizations with "common religious bonds with the ELCA" -- such as the new North American Lutheran Church -- to sponsor members in the benefit plans. The amendments were sent for approval to the ELCA Church Council. David D. Swartling, ELCA secretary, told the trustees that the topic had been discussed by leaders of the churchwide organization and the Board of Pensions. He said it had been determined to open the plans to qualified non-ELCA congregations or churches. The benefit plans that are offered will be exactly the same as plans offered to ELCA plan members.

Brian J. Bergs
Minneapolis, MN

  Thanks for posting this. Fascinating.