PioneerLegal Gains Access to MBTA Pension Arbitration Award After Seven-Month Process

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Award increases age at which T employees can collect full pension, gives retirees 3 percent cost of living adjustment

Read the Award

BOSTON – After a more than seven-month struggle, PioneerLegal, a public interest law firm, has gained access to an important August 2022 arbitrator’s decision about a dispute between the MBTA and its largest union, the Carmen, over the severely underfunded MBTA Retirement Fund (MBTARF).

“I’m proud that our work allowed this important decision to become public,” said PioneerLegal attorney John La Liberte. “But it’s troubling that it would take more than seven months for a document that affects so many people to see the light of day.”

Unlike in the state retirement system, basic tenets of the MBTARF, such as employer and employee contributions and retirement age, are negotiated by the parties.

The MBTARF has been in free fall in recent years. In 2007, pension costs accounted for 9 percent of payroll, but by 2021 they had risen to 24 percent. Despite this dramatic funding increase, the funded ratio fell from 75 percent in 2009 to 54 percent in 2021, with a $1.4 billion unfunded liability.

The arbitrator ruled that for MBTA employees under 60 years old with five or more years of service, the age for receiving a full pension will be raised to 65. Pensions would be reduced by 6 percent per year for each year before 65, which will save over $12 million annually.

Previously, MBTA employees hired before December 6, 2012, could receive a full pension after 23 years of service, regardless of age. The policy is one of the main reasons why the system has more retirees collecting pensions than employees paying in.

Retirees were granted a 3 percent cost of living adjustment affective July 1, 2018, and arbitrator Elizabeth Neumeier maintained the status quo on a number of other issues of disagreement between the MBTA and the Carmen.

Release of the award came only after a long and tortuous process. On September 3, 2022, PioneerLegal submitted a public records request to the MBTA for the decision, which is dated August 26. The T failed to respond by September 23, as required under Massachusetts public records law.

On that date, the Carmen’s Union filed a lawsuit challenging the arbitrator’s award.

On October 6, Pioneer submitted an appeal to the Massachusetts supervisor of records.  This time, the MBTA responded, claiming the award was exempt from disclosure.

PioneerLegal filed a second appeal on October 25, but the supervisor of records declined to opine on the substance of the matter.

On December 15, 2022, PioneerLegal filed suit in Superior Court to compel release of the award. The court denied the motion on March 30, 2023.

Just last week, after PioneerLegal—now known as Pioneer Public Interest Law Center— petitioned a single justice of the Appeals Court to reverse the Superior Court decision, the MBTA produced the award.

“Sadly, this is a case where Massachusetts earned its reputation for government opacity,” said Pioneer Institute Executive Director Jim Stergios. At a time when the MBTA faces declining ridership and growing deficits, taxpayers deserve to know about the additional threat the pension fund poses to the T’s fiscal stability.”

 

Pioneer Public Interest Law Center (PPILC) is a nonpartisan, public interest law firm that defends and promotes educational options, accountable government, and economic opportunity across the Northeast. PPILC achieves its mission through legal research, amicus briefs, and litigation.

Massachusetts SJC Reverses Commissioner of Revenue in Redevelopment Tax Case

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Read the slip opinion, Reagan vs. Commissioner of Revenue

BOSTON, March 10, 2023 — The Massachusetts Supreme Judicial Court on Friday reversed a decision of the state’s Appellate Tax Board, finding that a tax concession granted to the developers of urban redevelopment projects extends to the capital gains realized from the sale of those projects.

The SJC had transferred the case on its own initiative from the Appeals Court. PioneerLegal submitted an amicus brief in the case.

James J. Reagan, Jr. was the owner of three limited partnership interests—St. James Company, Blackstone Company, and Kenmore Abbey Limited Partnership—that invested more than $45 million over the last 40-plus years to transform abandoned or vacant properties in Boston into housing for the elderly and individuals with disabilities.

The three projects, approved by the city of Boston between 1975 and 1982, were developed under Chapter 121A of the state laws, a 1940s-era law that sought to promote the rehabilitation of “blighted, decadent, and substandard areas” by providing an incentive for private investment.

When Reagan and his wife, Irene M. Reagan, filed their 2012 state tax return, they took the position that the capital gains they had realized from the sales of the projects were exempt from tax because they were “on account of” those projects—in keeping with the language of Chapter 121A.

The Commissioner of Revenue issued a notice of assessment to the Reagans in 2016, and their application for an abatement was denied in 2017. The state Appellate Tax Board upheld that assessment in July 2020, and the Reagans appealed.

In its ruling Friday, the SJC found that the increased value of the properties was causally related to the project, and that extending the tax exemption to a capital gain from the sale of a Chapter 121A project is “buttressed by the statute as a whole.”

The tax board’s conclusion, the SJC wrote “seems to rest on a misapprehension—namely, that capital gain is realized after the project is sold. To the contrary, capital gain is realized coincident with the sales transaction.”

Massachusetts High Court Strikes Down Town’s Civility Code as Unconstitutional

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Read slip opinion Barron vs. Kolenda Read PioneerLegal’s amicus brief

BOSTON, March 7, 2023 — In an opinion that reinforces political speech rights at public meetings throughout the Commonwealth, the Supreme Judicial Court of Massachusetts has declared that Southborough’s civility code governing participation at public meetings violates Article 19 of the Massachusetts Constitution.

Article 19 protects core political speech rights—the right to assemble “in an orderly and peaceable manner. . . to consult upon the common good; give instructions to [the people’s] representatives,” and to request of the government “by way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer.”

Exercising her Article 19 rights is just what appellant Louise Barron was attempting to do during the public comment portion of a Southborough town meeting when she was abruptly silenced and threatened with expulsion by town officials who claimed that her criticism of their repeated violations of the Open Meeting Law violated Southborough’s civility code.

“We are delighted that the court has made it absolutely clear that our democratic form of government was founded upon, and still depends upon, our right to freely and peaceably criticize our leaders, and to seek redress of our grievances, without fear of retribution or governmental restraints,” said PioneerLegal staff attorney Selena Fitanides.

The town’s code requires that “[a]ll remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks,” and it warns that [i]nappropriate language . . . will not be tolerated.”

PioneerLegal filed a non-party amicus brief in the case last fall urging the court to rule that civility codes like Southborough’s constitute viewpoint discrimination and, therefore, violate the sacrosanct right to free political expression enshrined in the Massachusetts Constitution.

In a 29-page scholarly opinion, Justice Kafker agreed, writing that “[a]lthough civility can and should be encouraged in political discourse, it cannot be required.” According to our Constitution, “political speech must remain ‘uninhibited, robust, and wide-open.”

PioneerLegal President Frank J. Bailey reacted to the opinion as follows:

“We are convinced that the Barron decision, which marks a high-water mark in free speech rights in the Commonwealth, will have a nationwide impact on the rights of citizens to be heard by their elected officials. We also hope the United States Supreme Court will recognize those same rights in the federal Constitution when given an opportunity.”

“Reasonable Minds Can Differ”: Major Cases Now Before the U.S. Supreme Court

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Several recent polls have shown that confidence in the U.S. Supreme Court is at historic lows, but interest in the cases that come before the nation’s highest court remains strong.

The implications of several cases currently before the Court were explored at a March 1 forum, “Reasonable Minds Can Differ,” sponsored by PioneerLegal, the Federal Bar Association, and the Social Law Library.

More than 100 people gathered to hear Boston University School of Law Professors Gary Lawson and Jessica Silbey lay out the facts of five cases currently before the Court. Use the timestamps below to navigate to the portion of the program that deals in detail with each of the five cases discussed.

 09:22-25:15 — Tyler v. Hennepin County

“In twenty-first-century United States all private land is held of the state — if you don’t pay the property tax assessment mean people are going to come, they’re going to grab the land, put it up for a judicial auction, and use the proceeds to pay off your debt.”

25:20-39:38 — National Pork Producers Council v. Ross

“The question is whether that extraterritorial effect is so burdensome that it violates the dormant Commerce Clause principles, and that California cannot export its morals legislation, its policing legislation, to the rest of the United States.”

39:40-55:08 — 303 Creative LLC v. Elenis

“The question … is whether applying a public accommodation law like this compels a web designer (or an “artist”) to sell web designing services (or to “speak”) — whether it violates the free speech clause … Is this a services case … or a speech case.”

 55:30-1:06:34 — Gonzalez v. Google and Twitter, Inc. v. Taamneh

“The Court will consider whether Section 230 of the Communications Decency Act of 1996 should shield tech platforms from liability when they direct third-party content to individuals who are radicalized by that content and then participate in terrorist attacks.”

 1:06:40-1:19:25 — Moore v. Harper

This case may decide whether state legislatures alone get the last word on how federal elections are conducted. “Here’s the bottom-line question—and this is a law professor’s dream: When the Constitution talks about those state bodies, is it talking about them as institutions or as functions?”

PioneerLegal is a nonprofit, nonpartisan public-interest law firm that defends and promotes educational options, accountable government, and economic opportunity. Through legal action and public education, PioneerLegal works to preserve and enhance liberties grounded in the constitutions and civil rights laws of the United States.

PioneerLegal: Important Strides in Year One

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In less than a year since our launch on June 1, 2022, PioneerLegal has made important strides to advance educational opportunities, free markets, and government accountability. Most recently, the Massachusetts Supreme Judicial Court ruled in our favor in a major free speech case, Barron vs. Kolenda.

I am pleased to share our inaugural newsletter, In Brief. Read, share with friends and colleagues, and share feedback with us.

Launching a new law firm is complicated, and we have many people to thank for their generosity. Sincere thanks to the team of lawyers at WilmerHale who prepared our launch, and firms like Sullivan, Morgan Lewis, and Hemenway & Barnes for their critical, pro bono case-related legal expertise.

On behalf of our Board of Directors and staff — Selena Fitanides, John LaLiberte, and myself — I hope you will continue to reaffirm your support  for PioneerLegal as we continue our work on educational choice, free markets, and government accountability.

With appreciation,
Frank J. Bailey
President, PioneerLegal

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PioneerLegal is a non-partisan, public interest law firm that defends and promotes educational options, accountable government and economic opportunity across the Northeast. PioneerLegal achieves its mission through legal research, amicus briefs, and litigation.

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