Welcome to the Third World, Part 12: Your Pension is an 'Unsecured Obligation'
The main difference between well-run and badly-run countries is certainty. In well-run countries, money is worth pretty much the same from one year to the next, the police come when called and protect rather than prey on the caller, and contracts, including pensions and other retirement plans, behave as advertised. In badly-run countries, not so much.
With the contract part of this story, Americans have been living in two different countries, depending on whether they're in the private or public sectors. Private sector workers discovered years ago that things like pensions and employment contracts are just so much scrap paper. But until recently the public sector had been spared such nasty surprises. Baby boomer teachers, firefighters and college professors have spent lifetimes doing their jobs and watching their pensions accrue. They've known for decades that when they retire they'll get X amount per year for life and have X amount of their health care covered. This certainty makes them perhaps the last segment of US society to retain a belief that the system works.
But that changed earlier this month, when Detroit's bankruptcy judge declared that pensions can be cut along with everything else:
A federal judge's ruling clears the way for Detroit to proceed with the largest municipal bankruptcy in U.S. history.
For 90 minutes Tuesday, as snow fell on protesters outside, Judge Steven Rhodes laid out his rationale for allowing Detroit to seek the biggest municipal bankruptcy in American history.
"This is indeed a momentous day," Rhodes told the hushed courtroom. "We have a finding that this proud and once prosperous city cannot pay its debts."
By the time the soft-spoken federal judge had finished, it was clear that from worker pensions to the city's art treasures, nothing in Detroit is completely safe in Chapter 9 bankruptcy.
The effect of his ruling is likely to touch all corners of the city and could serve as a legal precedent for other municipalities reckoning with unsustainable debt. Here are three of the most important takeaways:
Pensions Aren't Sacred. Lawyers for the city's 48 organized-labor groups argued strenuously that Michigan law protected state employees' pensions. Rhodes disagreed, noting that the state's constitution classified pensions as a contractual obligation on cities' part, not something requiring special treatment.
That means the city can treat pensions like any other potentially voidable contract. Expect it to do so. On Tuesday afternoon Detroit's emergency manager, Kevyn Orr, said he couldn't fix the city's financial problems simply by restructuring the debt owed to banks. "It can't be done without impacting pensions," Orr said.
"For the image of labor, Detroit is a catastrophe," said Gary Chaison, a professor of industrial relations at Clark University in Worcester, Mass. "The aristocrats of labor have become the paupers of labor. What affected yesterday's manufacturing workers is now affecting policemen and firefighters. Nobody is safe."
Detroit is just the first of many. Pension plans across the country have failed to put away enough to cover their obligations while hiding that fact from beneficiaries and bondholders:
Pity the municipal bondholder. Between Detroit's bankruptcy and the rising concerns over unfunded pensions in Illinois and elsewhere, it has been a rough year for many muni bond investors. While the Standard & Poor's municipal bond index has recovered from its September lows, it is still off 2.7 percent for the year.
A big problem for investors in this $3.7 trillion municipal market -- mostly individuals -- is that financial disclosures by states, cities and other issuers of tax-exempt debt can be decidedly inadequate.
Securities laws require issuers of municipal debt to provide the information investors need to make informed decisions when buying or selling these instruments. But lax disclosure practices remain, making it hard to spot signs of problems like those hobbling some states and cities. Disclosures about the soundness of public pensions, for example, can be essential to weighing the health of municipal bond issuers that are responsible for funding them.
Investors aren't the only ones who need more information. This was on full display last week, when a judge in Detroit suggested in a groundbreaking ruling that the city's pensioners would not get priority in the city's bankruptcy, and their retirement pay could be considered an unsecured obligation.
John R. Mousseau, executive vice president and director of fixed income at Cumberland Advisers, a money management firm in Sarasota, Fla., said: "Detroit's pensioners may be as eligible to take a haircut as the city's bondholders or vendors. This development should demand more disclosure."
But better disclosure practices among tax-exempt issuers are slow in coming, investors say.
If issuers make material misstatements or omit information, they can face civil or criminal penalties. The Securities and Exchange Commission has brought eight cases contending disclosure failings by municipal issuers this year.
A large case last March involved accusations that the state of Illinois misled investors about its unfunded pension. From 2005 to 2009, a period when the state issued $2.2 billion in bonds, the S.E.C. said Illinois failed to warn investors about the pension system's woes and "the resulting risks to the state's financial condition."
Among the details missing from the state's offering statements and filings, the commission said, were those relating to the contributions made by the state to its various pension funds. The commission said investors were not told that the state was contributing far less to the pensions than was required each year. Last week, the Illinois Legislature voted to shore up the pensions by raising the retirement age for some workers and lowering cost-of-living adjustments. The state is facing a pension shortfall of $97 billion.
Illinois settled with the S.E.C., but the agency did not impose fines or penalties. The S.E.C. doesn't typically exact penalties in such cases, its officials said, because the money would come out of a state or city budget, making matters worse.
A crucial metric that should be found in issuers' offering statements and filings is one cited by the S.E.C. in the Illinois case: the shortfall in annual contributions that are needed to keep a pension fully funded. Known as annual required contributions, or ARC, many states fail to meet them.
This has the effect of masking an issuer's financial troubles, Mr. Tobe said. "There almost needs to be a bold statement saying the state is not paying 100 percent of its ARC payments," he said.
He cites a December 2011 offering statement for $72 million of bonds issued by the University of Illinois. Nowhere does it detail the shortfalls in state contributions to the university system's pension fund in recent years. Investors seeking this information must go to the Illinois State Universities Retirement System website.
It has been generally understood for a while that pension plans use unrealistic return assumptions to hide the fact that their governments aren't contributing enough each year. But it's interesting that even with a raging bull market in equities - which have of late returned a lot more than the typical pension target of 8% - many plans are becoming even more underfunded. Part of this is due to the fact that the bonds in pension fund portfolios have gone down in the past year, offsetting gains in equities. And part is due to governments failing to contribute as much as they've promised they would.
Stocks, based on most historical measures, are ripe for a correction, and bonds, even after a recent uptick in rates, yield next-to-nothing. So the average pension fund, instead of making its optimistic 8% return target, might actually lose money in the next couple of years. In that case, their underfunding would be too horrendous to hide.
With a growing number of cities (and some states) devoting unsustainable portions of their operating budgets to paying former rather than current workers, Detroit might become the template for dozens of other cities in 2014 and beyond. And millions of people who thought they'd nailed down a middle class retirement in a well-run country will find out they're not in that country any more.