The Ohio Patrolmen's Benevolent Association (O.P.B.A)
Traditional vs. Roth 457b Deferred Compensation Plans
A public employee’s deferred compensation plan has always been a very important part of their retirement planning. However, with the recent changes in the public pension plans, and likely more coming in the near to immediate future, planning for one’s retirement has never been more important. One of the best ways you can combat any negative changes to your pension is by paying yourself first; and a great way to do that is through your deferred compensation plan.
Hopefully, every Police Officer has at least started contributing to a deferred compensation plan available in their city. That is the first step. However, now most cities offer multiple plans to choose from, so it’s important to know what your options are and choose the plan that best matches your needs. Also, even more recently, some cities now offer both a “traditional” deferred compensation plan and a Roth option as well. Depending on your situation, one or the other may suit you best, or even a combination of the two.
The traditional deferred compensation plan is what most Police Officers have been contributing to for years. Your contributions go in pre-tax, which reduces your taxable income now and lowers the amount of taxes you pay today. Throughout your career, all the gains in the account grow tax deferred. You then pay taxes when you retire or when you separate from your employer and want to start withdrawing those funds to supplement your pension in retirement. So you reduce your taxes today, defer taxation on all gains in the account throughout your career, but eventually pay taxes on the whole account as you draw it out over time. The goal is that hopefully you take the money out at a manageable level so that you pay a lower tax rate than you otherwise would have in the past. However, it’s important to note if you decide to liquidate your account all at once, it would all get added to your taxable income for that year and you could jump up several tax brackets. This could cause you to end up losing a lot more of your account to taxes if you withdraw your funds frivolously and without proper planning.
The Roth deferred compensation plan works pretty much the exact opposite. Your contributions go in AFTER tax, so you don’t receive any tax break today, and your taxable income doesn’t get reduced either. However, all subsequent gains in the account grow tax deferred. When you retire or separate from employment, your ENTIRE deferred compensation account can be withdrawn TAX FREE as long as it is considered a qualified distribution. In order to be deemed a “qualified distribution,” the Roth account must have been established for at least five years, and you must be at least 59 ½. As long as these conditions are met, any and all of the Roth account can be withdrawn at any time tax free!
However, it’s important to note the traditional deferred compensation plan has no age requirement on distributions--you just need to be retired or separated from service. As you can see from the above, in order to take advantage of the full benefits of a Roth deferred-compensation plan, you would want to wait to take withdrawals after age 59 ½. This is an important thing to consider if you are planning on retiring prior to that.
So which plan is right for you? There is no short and easy answer. A lot of things come into play: your current and future tax brackets, the age you plan on retiring, how much you think you will need per year in retirement, and much more. For some, the best way to diversify their tax strategy could be by contributing to both of these plans. That way, in retirement, you will have some pre-tax assets to draw from and also after-tax Roth assets. Deferred compensation plans offer high-dollar limits that you can contribute to each year, so they are a great tool to use to try to effectively maximize your retirement. If you’d like more guidance on which plan makes the most sense for you, feel free to give us a call.
Lineweaver Financial Group
9035 Sweet Valley Drive
Valley View, OH 44125
Securities offered through Triad Advisors, member FINRA/SIPC. Advisory services offered through Lineweaver Wealth Advisors, LLC. Lineweaver Wealth Advisors is not affiliated with Triad Advisors.
Sherri Bevan Walsh
White picket fences. A yard with a big oak tree. A husband, wife, two kids, and possibly a dog. Sounds like the typical, idyllic, Norman Rockwell family setting. And many of us have that image in our heads when talking about the good old days – describing a family dynamic perhaps from six decades ago. The 1950’s gave us television classics like ‘Leave It To Beaver’ and ‘Father Knows Best’. The shows highlighted an ideal lifestyle where minor problems were solved in less than 30 minutes.
But we know better. Families back then argued and fought just like families of today. And many times those arguments escalated into violence. We can no longer think the husband feels he is misunderstood, or blame the wife for not doing enough to keep her husband happy. We cannot use the same mentality now as many did when dealing with domestic violence from 60 years ago.
Just recently, a Summit County couple was found dead in their home. Investigators say it was a murder-suicide. The 55-year-old man strangled his 46-year-old wife, before killing himself. The couple was going through a divorce. And just days before their bodies were discovered, a judge ordered the man to move out of the house as part of the divorce proceedings. And, police were called to the home twice over a four month period for reports of the couple arguing.
Could something more have been done? What role can police officers and first responders play in preventing these situations from escalating?
The U.S. Department Of Justice defines domestic violence as “a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner."
Domestic Violence is a crime when a person:
The Summit County Prosecutor’s Office offers assistance and guidance in these types of situations. We regularly provide training for law enforcement agencies. In May, the Summit County Prosecutor’s Office held four days of training for the Akron Police Department. Throughout the training, prosecutors described different situations and scenarios involving domestic violence. Prosecutors provided insight into how to deal with the victim and the aggressor and how to tell the difference between the two.
For example, the victim may not have any obvious physical injuries. And the aggressor’s injuries can be more severe than the victim’s. But injuries alone do not tell the whole story. First responders need to try to get deeper into what happened. Consider the history of violence of each party involved. Were there any past convictions? How many times were officers called to the home? What do neighbors, co-workers, or family members say? Gather as much evidence as possible. And take pictures. A lot of pictures. People’s memories may fade, but the pictures remain, and can many times tell the story. Taking these steps will not only help the victim but assist prosecutors in proving their case.
Although anyone can be a victim, the majority of domestic violence victims are women. Bureau of Justice Statistics reports that 85 percent of victims of intimate partner violence are women, and women ages 16-24 are at the highest risk of being affected by intimate partner violence.
So what can a victim of domestic violence do? Breaking free requires a safety plan, in order to minimize risks when it's time to leave.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
The Downward Swing of the Pendulum of Public Scrutiny and Opinion
by S. Randall Weltman, Esq.
I have written before about the swinging of the “pendulum” in collective bargaining both in the public and private sectors.
During my many years of negotiating OPBA contracts there was a long period when the process clearly favored the workers in both the U.S. and Ohio. Unfortunately the pendulum swung down from such prosperity in 2008, the year marked by a financial crisis never witnessed by most Americans. The pendulum headed even lower in 2011 with the advent of Senate Bill 5 mentality and, ever since, this pendulum remains in a down position.
In the meantime the pendulum of another element of representing OPBA members has taken a drastic swing to the downside. Just within the last year the public’s scrutiny and the public’s opinion of police officer actions has swung from positive to negative.
The public’s heightened scrutiny of individual officers or their actions as a police force has never been worse during the past 25 years and I believe we will be stuck there for a long time to come. The excellence of U.S. technology ensures us that the ability to accurately review each and every detail of an officer’s on-duty performance will only improve. The same technological excellence suggests that the public’s ability to instantly communicate with each other via either print, voice, camera et. al. will also only be enhanced over time.
The combination of the ability to watch someone’s performance and to instantly communicate about that performance has been a characteristic of today’s sports scene and is now a constant part of police work. It is all made possible by a media that has not only rapidly and dramatically grown but changed.
The advent of cable television in the pre-2000’s created many more viewing options for T.V. viewers including news talk shows anchored by politically opinionated characters and reality shows directed to specific audiences. The channel expansion on television evolved into You Tube, and many, many social media outlets that I can not tell you much about, except that it is everywhere all day long.
The media in the U.S. is very competitive and the obvious way they compete is to appeal to their target audience, us Americans enjoying our heightened ability to learn and watch so many events from practically anywhere with so much detail. The combination of a competitive, provocative and essentially uncensored media that can reach so many people so quick and its ability to capture such detail puts practically every action taken by virtually every officer up for instant public review…and criticism.
Officers are, thus, no different than professional athletes or any other performer able to be so reported by the media and so scrutinized by the media’s audience. Oh, there is one difference and it’s huge – the pay!
At any rate, under the circumstances officers face today, it is more important than ever that each member fully utilize his right to legal representation whenever involved in a critical incident. After all, it is the critical incident that draws the media’s interest and the public’s scrutiny. So when involved in one, one must tread carefully.
All critical incidents that occur during the civilian Monday through Friday work week are easy for the OPBA’s Directors and representatives to deal with. A call to the OPBA’s office will result in immediate advice and counsel as there will either be an attorney in the office or one close by.
Any critical incident happening outside of normal business hours will also result in immediate advice and counsel, albeit not so instantly. Outside normal business hours, a call to the OPBA office will be picked up by the answering service who upon being informed of the critical incident will contact the OPBA’s designated attorney/official.
If the affected OPBA member knows their OPBA attorney’s cell phone number or other contact information it is perfectly acceptable to call the attorney directly. However, if that call is not picked up and you leave a voice mail, it is absolutely imperative that you call the OPBA office also, so that the answering service will learn of the incident and be able to take action as it can not be known when that attorney will hear the voice-mail.
Between the time that the critical incident occurs and the time that the attorney responds I believe that the Director’s first endeavor is assist the officer(s) involved in the critical incident. They should be kept away from others as much as possible so that they are not bothered by anyone not first screened by the Director.
Secluding those involved in the critical incident is a good goal because from the moment the officer involved is questioned by anyone with authority; they have the right to counsel before answering. It can be the Director that is around who can articulate and invoke this right.
In the midst of this, it is likely that the OPBA attorney will be responding. At which time the attorney will speak to those involved, assess the matter and determine the proper representation course from that point forward. From this point the attorney can then speak for the affected officer(s) and the OPBA, relieving the Director from having to make or articulate any decisions.
Of course there will be critical incidents where even upon the most intense scrutiny the officers’ actions were obviously justified. These situations are quickly apparent to the involved and to the Director and when they are obvious there is no need to initially hold back in outlining the incident to those that ask.
Again though, because one of the OPBA’s unique services includes prompt, dependable and professional responses to all critical incidents and because each involved officer has the right to counsel whenever questioned by a supervisor, it does not hurt to be sure in every case. So take advantage of the OPBA’s services so as to best minimize the disadvantages we face by the ease of the public to scrutinize and criticize.
New Questions about Light Duty Work Policies
Supreme Court Decision in Young v. United Parcel Service Raises New Questions about Light Duty Work Policies
By: Michelle Sullivan, Esquire
Allotta, Farley Co, LPA
The availability of light duty is an important concern for employees at many law enforcement agencies. Officers face injuries and conditions resulting from on- and off-duty activities that can restrict their ability to work full-duty and rely on light-duty to avoid a loss of income or break in benefits. As more women enter the law enforcement profession, they are also competing for light-duty assignments when restricted from full-duty as the result of a pregnancy. In many cases, these employees have not worked long enough to accumulate sick leave that will cover their absences if denied light duty, and stand to take significant time without pay because of their pregnancy-related restrictions. In many cases, employees are denied light duty unless they have medical restrictions as the result of a workplace injury.
The Supreme Court recently issued a long-anticipated decision in Young v. United Parcel Service, 135 S.Ct. 1338 (2015) that poses more questions than answers as to how and when an employer must permit an employee to work light duty. The Young case arose under the Pregnancy Discrimination Act (“PDA”) as the result a UPS employee who was denied light duty during her pregnancy. In Young, the Supreme Court set forth a new standard to be applied to pregnancy discrimination cases, will likely push employers to reevaluate their light duty work programs for all employees.
The Plaintiff, Peggy Young, worked for UPS as a part-time driver. Her job required her to lift boxes weighing as much as 70 pounds without assistance. Young became pregnant and her doctor restricted her to lifting no more than 20 pounds during the first 20 weeks of her pregnancy and no more than 10 pounds for the remainder of her pregnancy. UPS had a formal light duty policy, allowing light duty work for employees with work restrictions as the result of on-the-job injuries and accommodation of employees suffering from a disability as defined by the Americans with Disabilities Act (“ADA”). Young requested a light duty assignment, but UPS denied her request because her condition did not fall within the parameters of the UPS light duty policy. As the result, UPS placed Young on unpaid leave for the duration of her pregnancy. Young filed suit against UPS alleging discrimination under the PDA.
While Young and UPS litigated her pregnancy discrimination case, the EEOC issued a controversial Pregnancy Discrimination Enforcement Guidance in the summer of 2014. For many years, the EEOC has remained silent on the issue of employer obligations to provide light duty for pregnant employees. In its Guidance, the EEOC explained that because Title VII and its Pregnancy Discrimination require employers to treat pregnant employees the same as any employee with medical restrictions unrelated to pregnancy, employers must accommodate the limitations of pregnant employees in the same manner it would accommodate other employees with “similar limitations.” The EEOC specifically rejected the position that the PDA does not require an employer to provide light duty to pregnant employees when it has a policy specifically limiting light duty to employees with work-related injuries.
In the Young decision, the Supreme Court crafted a new standard to be applied in pregnancy discrimination cases. In doing so, the Court declined to apply the EEOC Guidance issued in 2014 because the Guidance was issued after the Court accepted review of the case and was inconsistent with the position the EEOC adopted in past cases. However, the Court also rejected UPS’ argument that light duty policy was lawful because it treated all employees with non-work related conditions and injuries the same, stating that this position contradicted the clear intent behind the PDA that pregnant employees be treated the same as employees with “similar” medical restrictions.
Instead, the Court held that an employee alleging pregnancy discrimination can make a threshold case for discrimination by showing that the employer failed to accommodate her restrictions, but accommodated similar restrictions for other employees with non-pregnancy related conditions. The employer is then given an opportunity to demonstrate a legitimate non-discriminatory reason for treating pregnant employees differently from employees with other medical conditions. However, the Court cautioned that the reason “cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates.” The employee can then rebut the employer’s reason by showing how the articulated reason is not true, or that the employer’s program imposes a significant burden on pregnant employees or that the employer’s reasons are not sufficient to justify the burden placed on pregnant workers.
Light duty assignments can be few and far between, if permitted at all, particularly at small law enforcement agencies. Historically, many employers either restrict light duty assignments or give preference to employees who have medical restrictions as the result of work-related injuries and conditions. Such policies help to control the number of people who would compete for a limited number of light duty assignments and help the employer save money on workers’ compensation costs. However, the Court’s holding in Young will now call this type of justification into question. Additionally, the EEOC Guidance remains in effect and employers must take this Guidance into consideration when drafting and applying light duty policies. While some may view the Young decision as a victory for expectant mothers, the decision raises many questions as to measures employers must take to offer pregnant employees light duty work, particularly in light of the EEOC Guidance on this topic and obligations Employers face where the conditions associated with pregnancy qualify for accommodation under the ADA. As the result of these questions that remain, employers are likely to review and revise their light duty policies or eliminate such policies altogether as the result of the Young decision.
Union representatives must be vigilant of employer efforts to modify or eliminate light duty policies and be mindful of the effect those changes will have on bargaining unit members. If you have questions regarding application of or possible changes to a light duty policy, please do not hesitate to contact your OPBA attorney.
State of Ohio v. Brown and Rudlaff v. Gillispie
I recently reviewed two cases decided this summer by Federal and State Courts with jurisdiction in Ohio that I found to be informative and somewhat interesting.
The first case was decided by the Ohio Supreme Court on June 23, 2015, and is likely only relevant to a very specific segment of our membership.
This case, State of Ohio v. Brown, 2015-Ohio-2438 (2015), concerned a Motion to Suppress evidence that was granted by the Sixth District Court of Appeals after having been denied previously by the trial court.
Specifically, the facts of the case detailed that a township police officer made a traffic stop on an interstate highway for a marked lane violation.
After the officer walked her canine around the stopped vehicle, she discovered 120 oxycodone tablets and a bag of marijuana.
The driver was indicted for aggravated possession of drugs. The trial court denied the driver’s Motion to Suppress finding that the police officer had probable cause to stop the driver for the marked lane violation. The driver subsequently pled no contest and was sentenced to a mandatory three years in prison.
On appeal, the driver asserted that because the township police officer lacked statutory authority to stop him on an interstate highway, pursuant to Ohio Revised Code (“R.C.”), Section 4513.39(A), the stop and the subsequent arrest and search were illegal under the federal and state constitutions.
The Appeals Court held that the stop did not violate the Fourth Amendment to the U.S. Constitution, but, the court found that the stop was unreasonable and violated the Ohio Constitution because the marked lane violation occurred outside the officer’s jurisdiction and there were no extenuating circumstances that would have permitted the officer to engage in the stop. As a result, the Appeals Court suppressed the drug evidence and reversed the conviction.
The Ohio Supreme Court accepted jurisdiction of the case to decide the issue of “whether a traffic stop made without statutory jurisdiction or authority violates the protection against unreasonable searches and seizures afforded by Article I, Section 14 of the Ohio Constitution.”
The Ohio Supreme Court then affirmed the Court of Appeals by concluding:
A traffic stop for a minor misdemeanor made outside a police officer’s statutory jurisdiction or authority violates the guarantee against unreasonable searches and seizures established by Article I, Section 14 of the Ohio Constitution. Here, the appellate court correctly determined that the township police officer lacked authority to enforce a marked lane violation on an interstate highway and that the traffic stop and ensuing search of the vehicle were unreasonable, and it properly ordered suppression of the evidence obtained from that search.
The second case of interest was decided by the federal Sixth Circuit Court of Appeals on July 1, 2015.
This case, Rudlaff v. Gillispie, No. 14-1712 (recommended for full-text publication) (6th Cir. 2015), concerns a lawsuit alleging excessive use of force by two police officers during an arrest that was completely captured by the dash-cam videos of both officers.
Before getting to the facts of the case, it is important to note that the Court changed its standard for reviewing the facts in this type of case, due to the reality that the entire incident was captured on video.
Specifically, in summary judgment appeals involving qualified immunity, the Court typically views the facts in the light most favorable to the Plaintiff. In this case, however, the Court asserted that “where the police dash-cam video[s]. . . depict all of the genuinely disputed facts,” [citation omitted], we “view the facts in the light depicted by the videotape[s].” [Citation omitted].
The facts, as recorded on video, demonstrate that the Plaintiff was stopped by an officer on routine patrol who recognized him and knew from three previous encounters that the Plaintiff was driving with a suspended license. Moreover, the Plaintiff had fled from the same officer during their last encounter and had a history of driving while intoxicated, as well as resisting arrest.
The officer initiated a traffic stop and called for back-up. Upon arrival of his back-up, the officer approached the Plaintiff who appeared “highly agitated” and cussed at the officer upon exiting his vehicle. The Plaintiff was non-compliant, refused to be handcuffed and was eventually tased after a knee strike was ineffective in gaining Plaintiff’s cooperation.
The Plaintiff sued the officers claiming that they used excessive force during the arrest.
The officers raised the defense of qualified immunity in the trial court, but, their Motion for Summary Judgment was denied by the district court for the reason that “disputed issues of material fact” were in existence.
The Appeals Court reversed the Court below and found in favor of the officers, concerning the issue of qualified immunity, indicating both that the “officers did not violate” Plaintiff’s “constitutional rights when they used force to subdue him” and that there was no clearly established constitutional violation committed by the officers, by stating as follows:
Carpenter conceded that he resisted arrest. The videos show the same. And the law says that when someone resists arrest, the police may constitutionally use force to ensure their compliance. A jury has nothing left to decide. Because the officers acted constitutionally – and because even if they didn’t, by all accounts they didn’t clearly act unconstitutionally – they are protected by qualified immunity. We reverse.
While the result of this case is obviously significant, especially to the two officers involved, it is further compelling that the Sixth Circuit has slightly altered its standard for reviewing the facts, in this type of case, in light of the evolving and prevalent utilization of technology such as the dash-cam videos employed by the officers here.
 This is obviously significant as so many of your encounters with suspects are either recorded now or likely will be at some point in the future.
The Americans with Disabilities Act (ADA)
By: Jeff Perry, Business Agent
A quick review and why it’s important to you.
The ADA was signed into law on July 26, 1990 by President George Bush. It was meant to allow those with a disability to have an equal opportunity to work and support them with the help of a reasonable accommodation(s). However, the courts didn’t read the law as it was intended.
Several Supreme Court cases put huge limitations on the ADA goals. In Sutton v. United Airlines, 527 U.S. 471 (1999), they ruled that an employee wasn’t disabled if their treatment limited or controlled their medical condition. Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) changed the requirement from a limitation on one portion of the job to a number of functions normally required to live a normal life. This changed the requirement from proving a disability was present to proving your disability couldn’t be adequately treated so that you couldn’t perform normal tasks of regular living.
Hopefully nobody you know has a disability and this law will have no impact upon you directly, however; in this day and age, that would be fairly rare to be the case for long.
When an employee discovers they have some mental or physical problem they go to their doctor to try to get better and take off work with their sick leave if needed. However, when the problem is more chronic then the flu or a cold, employees typically would request Family and Medical Leave Act (FMLA) time when they need time off work for treatment. Doing so would keep the Employer from using the time off as an excuse to discipline an employee for using too much sick leave.
Many employers require employees to use any earned time off prior to using unpaid FMLA time. Either way, FMLA is limited to twelve weeks a year. If an employee needs more time off, they may need to request a reasonable accommodation under the ADA. In addition, an employee may need a reasonable accommodation to work so they can avoid or minimize the time off work due to their disability.
If you have earned time you can use, few employers would have a problem with letting their employees use it due to their needs. However, a lot of employers do have a problem letting their employees have time off when they don’t have any time off. The way the law was interpreted by the Supreme Court left little chance of help to employees.
In 2009, President George W. Bush signed a law amending the ADA back to his father’s original intent. In doing so, the case law on the ADA no longer is relevant. Now there are three types of reasonable accommodation that would cause an Employer to change the work area or procedure.
(i) Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
(iii) Modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
An accommodation is reasonable if it’s both “plausible and feasible.” The accomodation can include making areas accessible, modified work schedules, providing readers and interpreters and reassignment to a vacant position. Of course, the accommodation must be balanced against the hardship it would cause the employer.
Undue hardship refers not only to the financial difficulty, but to reasonable accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.
Needless to say the ADA must be looked at on a case-by-case basis. It’s good to know that there are laws to protect you should the need arise. However, if you think you need such assistance you should contact your OPBA representative to help guild you.
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