Advisory Opinion 2000-11A

Dear Mr. Oliveto:

This responds to your request for an advisory opinion concerning the status of the Firefighters’ Variable Supplements Fund (VS Fund) under Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA). As discussed below, we conclude that the VS Fund is a “governmental plan” within the meaning of section 3(32) of ERISA, and, therefore, is excluded from ERISA Title I coverage pursuant to section 4(b)(1) of ERISA.

The following is a summary of the facts as we understand them from the information and various materials furnished with your request. The VS Fund originated from collective bargaining in 1968 between the City of New York (City) and the Uniformed Firefighter’s Association (UFA). The City and the UFA agreed in those negotiations to provide supplemental income to retired New York City firefighters from funds that were to be raised by investing a portion of the Fire Department Pension Fund (Pension Fund) in equities rather than fixed income securities.⁽¹⁾  The Pension Fund was at that time, and has continued to be, a defined benefit pension plan that provides retirement benefits for City firefighters. Covered employees contribute a fixed amount of pay to the Pension Fund and the City is responsible for funding the remaining benefit cost, which appears to constitute the major portion of the Pension Fund’s financing. It appears that no one has contested, and we assume for purposes of this opinion, that the Pension Fund is a “governmental plan” within the meaning of section 3(32) of ERISA.

Institution of the supplemental income payments required implementing legislation which the New York State legislature enacted in 1970. Under that legislation, as described in documents you submitted,⁽²⁾ the VS Fund was created as a trust fund to be administered by a board of trustees comprised of a representative of the Mayor of the City, the City Comptroller, and two representatives of the UFA. Acts of the board of trustees were to be adopted by the votes of at least three board members, except that deadlocks were to be resolved by arbitration. The statutory provisions defined the permissible class of retired firefighters who would be eligible to receive VS Fund payments⁽³⁾ and vested the trustees with discretion to determine the “form, amount, and cases” in which payments would be made, “giving consideration to equity, fairness, and principles of prudent management.” Benefits were to be paid from amounts, if any, made available under a prescribed formula based on investments of the Pension Fund in equities. In general, the formula determined the amount by which the return on the portion of the Pension Fund invested in equities, including offset of losses against gains on a cumulative basis, exceeded the hypothetical return that such portion would have earned had it been invested in fixed income securities. Such “excess” equity earnings in each year would be transferred from the Pension Fund to the VS Fund for distribution to VS Fund beneficiaries. The statutory provisions also specified that the trustees were not to make any benefit payments unless a plan “setting forth the basis and amounts of such payments and the qualifications for receipt thereof” was filed with the Superintendent of Insurance and approved by him or her as being consistent with the statutory provisions relating to the VS Fund.

The legislature amended the VS Fund statutory provisions in 1989, as a result of collective bargaining, to effect certain changes in the VS Fund’s benefit structure, funding, and administration. In particular, as to the benefit structure, the scheme of conditioning supplemental payments to participants on the availability of investment earnings from the Pension Fund and on the discretion of the trustees and approval of the Superintendent of Insurance, was replaced with a statutory schedule of annual benefit payments that increase each year to the year 2007 and then level off. As to funding, a cap was placed on annual transfers of money from the Pension Fund to the VS Fund to limit such transfers to the amount of the VS Fund’s unfunded accrued liability, and the City guaranteed the VS Fund’s benefit obligation. Regarding the VS Fund’s administration, the amendments designated the City Commissioner of Finance as a fifth member of the board of trustees and required that acts of the board be adopted by at least a three-fifths vote of board members. The 1989 legislation also directed that a portion of the VS Fund’s assets be transferred to the City.

Title I of ERISA covers employee pension benefit plans and employee welfare benefit plans. In general, a covered “employee pension benefit plan” (or “pension plan”) includes, subject to certain exceptions, any plan, fund, or program established or maintained by an employer or by an employee organization, or by both, to provide retirement income to employees. Section 4(b)(1) of Title I of ERISA excludes governmental plans from coverage. The term “governmental plan” is defined in section 3(32) to include “a plan established or maintained for its employees by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.⁽⁴⁾

The information before the Department of Labor (Department) in this case indicates that the VS Fund has, at all times relevant to ERISA Title I coverage, been a “governmental plan” within the meaning of section 3(32) of ERISA. It has been the view of the Department that the term “governmental plan” as defined in section 3(32) is not limited to plans established by the unilateral action of employers that are governmental agencies. In this regard, the Department has interpreted the term "governmental plan" to include plans established or maintained pursuant to a collective bargaining agreement between a governmental entity and a labor union where such plans are funded by, and cover only employees of, governmental entities. In the instant case, as indicated above, the VS Fund is the product of collective bargaining between the UFA and the City and has limited its coverage to employees of the City. The VS Fund’s creation and continued existence have been dependent on legislation enacted by the New York State legislature, and the VS Fund’s basic features have been embodied in such legislation. Further, the City has participated in the VS Fund’s administration through, among other things, its representation on the VS Fund’s board of trustees. Although the City has not made direct contributions to the VS Fund, the VS Fund receives the monies it uses to pay its benefits from the Pension Fund through statutorily mandated asset transfers, and the status of the Pension Fund as a governmental plan established and maintained by the City is uncontested. Under these circumstances, the fact that employees have contributed to the Pension Fund does not, in the Department’s view, negate a conclusion that the variable benefits made available under the VS Fund through 1988 were funded by the City for purposes of the VS Fund being treated as a governmental plan under Title I of ERISA. The City also has guaranteed the VS Fund’s fixed benefit payments that were adopted under the 1989 amendments.

Based on the foregoing, it is the view of the Department that the VS Fund is a “governmental plan” within the meaning of section 3(32) of ERISA, and, therefore, is excluded from ERISA Title I coverage pursuant to section 4(b)(1) of ERISA.

This letter constitutes an advisory opinion under ERISA Procedure 76-1 and, accordingly, is issued subject to the provisions of that procedure, including section 10 thereof relating to the effect of advisory opinions. This opinion relates solely to the application of the provisions of Title I of ERISA and is not determinative of any particular tax treatment under the Internal Revenue Code.