A Trip Down the CalPERS Rabbit Hole
By Barry Pasternack, President CSU-ERFSA
As you may be aware, a new contact agreement between CSU and CFA was ratified on February 3, 2022 (see Contract 2022-2024 - California Faculty Association (calfac.org)). One of the provisions of this agreement dealt with a one-time payment of $3,500 to be paid on a prorated basis to faculty who taught during the 2020-21 academic year as compensation for the additional time and effort associated with teaching during the pandemic. As delineated in article 31.the conract stated:
“31.7 To compensate faculty unit employees who are in active pay status as of the date of ratification of this Agreement for the additional time and effort required to make significant changes to the delivery of instruction due to the coronavirus, a one-time payment of $3500 will be made to each faculty unit employee who worked an average of 1.0 timebase during Fall 2020 and Spring 2021 (or the equivalent academic year on a quarter campus). For those who worked less than an average of 1.0, this payment will be prorated by the faculty member’s average timebase worked for Fall 2020 and Spring 2021 (or the equivalent academic year on a quarter campus), but not to exceed a 1.0 timebase. A semester (or quarter) not worked shall be considered a zero timebase. This payment is based on the time and effort required to adapt curriculum, alter related services, modify course evaluation practices, and implement modified programs to accommodate student needs resulting from the coronavirus pandemic including students’ technological, illness, and dependent care requirements, among others.
This payment is considered taxable income subject to all normal payroll withholding and is to be paid through the state payroll system. This payment is not considered reportable compensation for purposes of calculating CalPERS retirement benefits. Payments to faculty unit employees participating in the Faculty Early Retirement Program will be made if allowed under CalPERS rules and regulations” (emphasis added).
When FERP faculty did not receive this compensation, the reason given was that CSU was advised by CalPERS that this was not permitted. I called CalPERS to enquire about this and, as reported in the May 2022 issue of the CSU-ERFSA Reporter, spoke with Andrew Harris of the division that deals with retired faculty compensation. Mr. Harris indicated that CalPERS had no issues with FERP faculty getting the additional compensation and one’s pension would not be affected. When I raised this with CalPERS again, the response I got was that Mr. Harris was in error, but he has refused to respond to my requests for further clarification. I was left with the thought that if CalPERS’s own employees who work in the relevant division do not know the rules, how are faculty expected to understand the implications of the contract?
Being somewhat suspicious about the actual reason why FERP faculty did not get the payment, I next contacted George Diehr, a CSU ERFSA member and former member of the CalPERS Board, about who I should speak with at CalPERS to get a further explanation. He suggested I contact Anthony Suine, CalPERS Deputy Executive Officer, Customer Services & Support, regarding the actual rules about retired annuitants RA;’s) working. Unfortunately, George did not provide me with contact information for Mr. Suine, which lead to another problem – how to reach him. I thought I could easily email him, but what I discovered was that CalPERS does not list contact information (phone numbers or email addresses) for their executives on their website. Now I can understand not listing phone numbers on the website (as I get at least five call every day from someone wanting me to switch to another internet provider with to a company that does not even serve my area), I did not understand the secrecy about providing an email address or why this is not public information. I had to first call his secretary to ask her to ask him to give her my email address to share with me.
Eventually I got his email address and Mr. Suine gave me the rules which limit the time retired annuitants can work. Unfortunately, using these rules seemed to me to be a “reach” as faculty were not specifically required to teach more hours or more students. Nor do they expressly deal with the additional time needed to move curriculum to an online platform. The CalPERS rules seem to be appropriate for employees producing widgets. But, we do not make widgets- we enhance students’ minds.
Feeling stymied with our attempts to straighten the situation with CalPERS, the CSU ERFSA Executive Committee decided our next step was to pass a resolution calling on the “CSU Chancellor’s Office and CFA to direct their relevant professional staff and legal counsel to work collaboratively to address CalPERS’ interpretation of regulations that negate the clear language and intent of the CBA to compensate FERP and other RA faculty”. This resolution, prepared with assistance of other faculty leaders, is printed below.
We have heard from Prof. Charles Toombs, CFA President, indicating support of the resolution. But are still waiting to hear back from CSU. We hope that they will step up and support faculty who devoted most, if not all, of their professional careers to the CSU.
RESOLUTION OF THE CALLIFORNIA STATE UNIVERSITY
EMERITUS AND RETIRED FACULTY AND STAFF ASSOCIATION (CSU-ERFSA)
September 23, 2022
Whereas the Chancellor’s Office of the California State University (“CSU”), in conjunction with the California Faculty Association, negotiated, and their constituents ratified, a new Collective Bargain Agreement (“CBA”) on March 22, 2022, which in part provides for faculty of the CSU to receive additional pay for having to spend time, transforming face-to-face classes into online courses during the 2020 pandemic period, and
Whereas that CBA specifically calls out in section 31.7 that faculty shall receive a one-time $3500 payment per fulltime faculty, and a proportionate share of that amount pro rata for part time faculty, based on the hours worked during the period in question, and
Whereas Faculty Early Retirement Program (FERP) faculty, per the CBA, were to be included in such payment, subject to CalPERS approval, which subsequently has ruled such payment is not allowed, based on a prohibition of “extra pay for extra work”, FERP faculty being constrained per CalPERS law to 960 hours per year, and
Whereas notwithstanding this CalPERS hour limit, Governor Newsom via Executive Order N-25-20, issued on March 4, 2020, waived that limit for the period in question, and continued such waiver beyond the ratification of the CBA (to April 1, 2022), and
Whereas CalPERS recognized this suspension in their March 22, Circular Letter, attesting to the term of the Governor’s waiver of the 960-hour limit for FERP (“Retired annuitants” or “RAs”), and
Whereas Public Employee Retirement Law (“PERL”), in several sections including, but not limited to 21229, states that the (RA) “compensation for hours worked during an emergency shall not exceed the maximum monthly base salary paid to other employees performing comparable duties as listed on a publicly available pay schedule divided by 173.333 to equal an hourly rate.
Whereas both the Academic Senate of the California State University (“ASCSU”) and the California State University Emeritus and Retired Faculty and Staff Association (“CSUERFSA”) have issued resolutions supporting this FERP payment under the CBA.
Now, Therefore Be It Resolved That:
- CSU ERFSA strongly urges both the CSU Chancellor and the President of CFA to direct their relevant professional staff and legal counsel to work collaboratively to address CalPERS’ interpretation of regulations that negate the clear language and intent of the CBA to compensate FERP and other RA faculty.
- CSU ERFSA urges that all Parties recognize this collaborative effort is a time sensitive issue with the goal of effectuating the intent of the bargaining Parties to compensate all faculty, including FERP and other RA faculty, for extraordinary preparatory work done to provide continued quality education for students during the COVID Pandemic.
- A copy of this resolution be forwarded to the CSU Chancellor, Executive Vice Chancellor for Academic Affairs, President of CFA, Faculty Trustee of the Board of Trustees, the CalPERS Board of Administration, the CalPERS Chief Executive Officer, and the CalPERS Deputy Executive Officer, Customer Services & Support.