Not much has changed in the two years since legislators and local officials called for changes in the way Ohio’s five public pension systems award lucrative disability pensions. The systems continue to award disability retirements regardless of whether employees, such as DiPietro, 48, were fired for wrongdoing on the job.
Unlike DiPietro, Hodapp wasn’t in trouble at work, nor could she afford a lawyer. Caught up in what she says is a paperwork nightmare, Hodapp is scheduled to have her case heard before the OPERS board on June 19.
OPERS spokeswoman Julie Graham-Price said she could not comment on specific cases.
Dayton and several surrounding communities have among the highest 10-year disability rates for Ohio Police & Fire Pension Fund members. Statewide, the percentage of disability retirees remains far higher for members of the OP&F and OPERS law enforcement division than the funds covering other public employees.
And unlike other funds, disabled police officers, deputies and firefighters are still allowed to hold any job — other than police work or firefighting — while receiving their entire disability pension. They also pay no federal taxes for on-duty disability pensions of up to 60 percent of their average highest salary.
Meanwhile, the cost of disability pensions continues to rise, with about $1.12 billion spent last year in Ohio, nearly one-tenth of the $11.6 billion annual cost of the state’s public pensions, according to data provided by the pension funds.
“If somebody is shot in the line of duty, or a firefighter gets seriously injured in a fire, they need that protection,” said Brent McKenzie, Dayton’s acting director of human resources. But, he added, “We still have that issue of employees who are working one day and tell us they are taking a disability the next and we didn’t even know they were ill.
“We were hoping they would change that in the pension reform and they did not do so.”
DiPietro case pending
A 2011 Dayton Daily News investigation found multiple examples of local public employees who received disability pensions despite workplace wrongdoing that cost them their jobs or led to criminal convictions. In November, OPERS awarded a disability pension to former Montgomery County Sheriff’s Detective Steven D. Gardiner, 40, of Germantown. He was fired in 2010 for improper conduct, including lying about a sexual relationship with a paid informant.
DiPietro was fired on Feb. 13 for violations related to a July incident in which he hosed down a naked 17-year-old girl who had been pepper-sprayed during her arrest. DiPietro also took a cellphone photo of the girl’s tattoo and forwarded it to a friend. He is appealing his firing.
In a phone interview, DiPietro would not divulge his disability, but said returning to work — possibly at Miami Township — is an option. He had nearly 24 years of service and was paid $79,414 annually, according to Miami Twp. payroll records.
“I’ve got a lot of stuff that’s pending in court and I still believe people are going to find out what really happened and understand the political agenda here that I was subject to, and I’m going to let it play out in court,” said DiPietro.
DiPietro, who went on medical leave after the township placed him on paid administrative leave in October, was not required to divulge the pending disciplinary action to OPERS when he applied for his pension. Nor was the township allowed to provide that information.
Reforms approved by the legislature in 2012 focused on making the pension funds fiscally solvent over the next three decades. There was talk of dealing with disability issues, but few changes were included in the law.
“We don’t believe the pension reforms that were enacted go nearly far enough across the board,” said Greg Lawson, policy analyst for the Buckeye Institute for Public Policy Solutions, a conservative Columbus-based think tank. “These are the type of stories that make taxpayers get very angry. And they should. There’s no other way to look at that except as gaming the system.”
Mark Drum, state secretary and legislative chairman for the Fraternal Order of Police in Ohio, disagrees that more needs to be done. He said the systems have good methods of weeding out fake disability claims and the legislature should see how the 2012 reforms play out before making more changes. He said police and deputies deserve special treatment by the pension systems.
“All those other jobs do not put their lives on the line or are subject to disabilities because of the acts of others,” Drum said.
With a 19.67 percent 10-year disability rate in the police and fire fund, Beavercreek Township ranks second highest in the the state among jurisdictions with 40 or more active members. Over his 22 years with the township fire department, Chief David VandenBos said he has not always believed that colleagues who retired on disability were disabled. He’s also noticed that many who won disability pensions had the same attorney and chiropractor.
“I think there is a whole lot to the culture thing,” said VandenBos. “My personal experience in watching this over the time I’ve been in the fire service is that it goes in waves. It’s not uncommon when you have one or two people go out on a disability pension there will be several more that follow.”
Pension fund officials say state law does not allow them to consider whether an employee seeking a disability retirement is in trouble at work, and they argue that it is not relevant to the medical decision. They say they have multiple checks and balances to flag fraudulent disability claims — including medical examinations and reviews of medical records by the member’s doctors and independent doctors and panels.
But critics say it is relevant when an employee being disciplined for misconduct suddenly applies for a disability pension.
“There might be legitimate cases where someone is being disciplined and they have an injury,” said State Rep. Kirk Schuring, R-Canton, who is a member of the House Health and Aging Committee and the Ohio Retirement Study Council, the legislature’s pension oversight body.
“It strikes me as peculiar that they seem to be physically fine until they are disciplined, and all of a sudden they claim an injury.”
Employees pay more
State Rep. Lynn Wachtmann, R-Napoleon, who chairs the health and aging committee and the council, said he is “not sure it should be legal under state law to go after disability after you’ve been fired.”
But State Rep. Fred Strahorn, D-Dayton, said the danger is that truly deserving disabled employees could be impacted by reforms and he cautioned against making changes based on “extreme cases.”
“Those, I hope, are the exception rather than the rule,” said Strahorn, adding that he is hesitant to second-guess the pension systems’ medical evaluations of disability claims.
The 2012 legislative reforms — most phased in over several years — increased the amount of money employees contribute, tinkered with years-of-service rules, changed cost-of-living allowances and increased from to 5 from 3 the number of years of highest salaries used to calculate benefits.
The legislature made a few changes to the disability systems, and some pension boards also made administrative changes. Not all of the reforms apply to every fund. They include:
- The legislature allowed termination or denial of a disability pension award if the condition resulted from commission of a felony.
- Both OPERS and the School Employees Retirement System will evaluate disability retirees for continued eligibility after three years to see if they can return to work in "any" occupation rather than their "own"occupation. Under pressure from the Fraternal Order of Police, the law exempts OPERS' law enforcement division.
- For new hires after July 1, the State Teachers Retirement System increased to 10 years from 5 the number of years an employee must work to be eligible for disability retirement.
- The OP&F board is studying better methods of detecting fraud.
- The Highway Patrol Retirement System rewrote its administrative code, including adding a presumption that a disability retiree is no longer eligible if he or she is employed in law enforcement or by a fire department.
“There is always room for improvement,” said Mark R. Atkeson, executive director of HPRS and a retired patrol major.
Focus on Dayton area
In September the Ohio Retirement Study Council launched a study of disability program costs and possible reforms, with a special focus on rates among law enforcement officers and firefighters.
“Make no mistake, a lot of it is because of what’s been happening in the Dayton area,” said Schuring, referring to the high disability rates in the Dayton region.
At nearly 16.6 percent, Dayton has the highest OP&F 10-year disability rate of Ohio’s major cities. Nine of the 10 highest rates among jurisdictions with more than 40 OP&F members are in Montgomery County or Greene County, according to a Daily News analysis of OP&F data.
“What I want to do is do (the study) in a thorough and comprehensive way so we avoid anecdotes and we look at hardcore empirical data,” Schuring said. “That will make a much stronger case for reform if, in fact, the empirical data backs up what some of these anecdotes are suggesting.”
Wachtmann said OP&F officials were not fully cooperating in the study and it wasn’t until he threatened to use subpoena power that the fund began complying with requests for financial documents. He said those documents are crucial to determining if the fund is headed toward insolvency without reforms.
“I’m fed up with their, from my perspective, 10 years of history of inadequate response,” Wachtmann said.
“OP&F fully cooperates with the Ohio Retirement Study Council and work with them to provide any information they request,” OP&F spokesman David Graham said.
Police, firefighters have high disability rates
Because the OP&F fund was unable to provide financial and retiree data for 2012, the totals in this story combine 2011 OP&F data with the other four pension funds’ data from calendar year or fiscal year 2012. The systems are independent of each other and do not have uniform rules for tracking data, nor do they follow the same rules for awarding service or disability pensions.
The maximum pensions awarded are based on the employee’s average highest salary and the percentage of disability. The current average annual disability benefit ranges from $15,108 for the School Employees Retirement System to $36,186 for firefighters in the OP&F fund.
OPERS is the largest fund, with 180,175 retirees, nearly 13.7 percent of whom retired on disability. In its small law enforcement division, more than 37 percent of 4,287 retirees received disability.
The Highway Patrol Retirement System is the state’s smallest with 1,198 retirees. Fewer than 10 percent are on disability.
OP&F covers 4.96 percent of the state’s 397,872 retirees, but has the highest percentage of retirees on disability — 33 percent — of the five funds. At SERS, 8.8 percent of retirees were awarded disability pensions. STRS’ rate is 4.9 percent.
The wide gap between the disability rates for troopers and other law enforcement officers is notable. Atkeson said his fund has the advantage of covering employees of a single agency, rather than multiple jurisdictions like the other funds.
“All of our troopers have gone through the same training, they are held to the exact same standards while they are employed, and part of that standard is staying in shape. There are weight requirements proportional to their height,” Atkeson said. “That, plus the culture that we instill probably leads to that lower rate.”
Fitness issue debated
The issue of fitness programs and standards resonates with local officials, who say it could cut disability rates. Kettering City Manager Mark Schwieterman said he’s not sure why the city’s OP&F rate is just 1.67 percent and other area suburbs like Trotwood and Huber Heights are above 18 percent, but he believes an employee-wide wellness program results in employees less likely to get hurt or ill.
Riverside City Manager Bryan Chodkowski and Trotwood City Manager Mike Lucking think their wellness plans — combined with retirements of older police officers and firefighters — will bring down their high OP&F disability rates.
Those wellness programs are voluntary and, unlike the Ohio Highway Patrol, none of the area jurisdictions contacted have mandatory fitness or health requirements.
“The Fraternal Order of Police believes that physical fitness standards are a matter to be bargained,” said Drum, arguing that height and weight standards can be discriminatory.
VandenBos said one useful reform would be for the police and fire pension system to require fitness standards beyond the physical that is required when employees are hired. He and others also want the system to alert them when an employee is applying for disability, something the OP&F alone does not do.
That lack of transparency allows a firefighter or police officer to apply for disability while still working — and if he or she doesn’t like the pension award to turn it down and keep working while supposedly being too disabled for the job, said McKenzie.
‘I’m asking for help’
As a public employee of 17 years with no intention of retiring anytime soon, Hodapp watched the debate over pension reform. It wasn’t until her Dec. 8 stroke that the details hit home. Hodapp lost peripheral vision in one eye, a quarter of her field of vision in the other and now looks at the world through a dim tunnel, with her ability to read dependent on a magnifying glass or assistance.
Her job involved transporting residents of MonDay Community Correctional Institution, supervising the day area and other tasks that require vision.
She resigned in December, but the paperwork on OPERS’ web site turned out to be obsolete after Jan. 1, something Hodapp said she was not informed of by OPERS. The fund rejected it and she submitted new paperwork filled out again by her doctors. OPERS lost a critical page and then found it, and she kept calling and was treated rudely by OPERS employees, Hodapp said.
“Mine’s legit with paperwork from the hospital,” said Hodapp, allowing a reporter to examine medical records indicating that she is permanently disabled for any employment.
“I’m not asking for welfare. I’m asking for what I have paid into, what is mine anyway,” said Hodapp. “So I’m not asking for a handout, I’m asking for help.”