Collectively bargained plans and governmental immunity

[Carol V. Calhoun]

A federal District Court case just issued in December, Walker v. Board of Trustees, will be of interest to any members involved with collectively bargained plans. It held that governmental immunity would NOT apply to a board of trustees of a collectively bargained governmental plan, or to the board members in their individual capacities. This was true even though the court held that the board's actions would constitute "state action" for purposes of applying federal Constitutional provisions to the board.

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Employee benefits legal resource site

[Guest PeterGulia]

As a student of sovereign, governmental, and public officer immunity as applied to retirement plan fiduciaries, I'd be interested in your views about whether the summary judgment motion was correctly decided.

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[Carol V. Calhoun]

Well, if you are a student of all of those things, you're probably in a better position to have an opinion on this than I am! I've always had mixed feelings on governmental immunity at all, and certainly as applied to governmental plans. On the one hand, it can be hard to get governmental employees to serve as fiduciaries at all at the rates of pay that governmental entities usually provide if the employees believe that they are potentially subject to billions in personal liability. On the other, if fiduciaries believe that they have no liability whatever, they may have little motivation to act in a manner to preserve and increase retirement fund assets.

I would love to know what you think, since you've obviously spent far more time considering these issues than I have.

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Employee benefits legal resource site