In the Supreme Court of Georgia



                                                Decided:        November 2, 2015


            S15A0816. BORDERS et al. v. CITY OF ATLANTA et al.


       HINES, Presiding Justice.

       This is an appeal in a class action challenging a 2011 City of Atlanta

(“City”)     ordinance (“Ordinance”)              and     the    consequent        amendment

(“Amendment”) by the City of its three defined benefit pension plans (“Plans”),

i.e., the City’s General Employees’ Pension Plan; the City’s Police Officers’

Pension Plan; and the City’s Firefighters’ Pension Plan; the Ordinance and

Amendment increased the percentage of salary required as the annual

contributions of the members of the Plans.1 The action, filed against the City,

the Mayor, and members of the Atlanta City Council (collectively

“Defendants”), is on behalf of City employees who participated in the Plans

prior to November 1, 2011, and had not retired prior to that date, which was the



       1
        The terms of the Plans are set forth in the Related Laws division of the Atlanta City Code
(“City Code”), specifically City Code Part I [Charter and Related Laws], Subpart B [Related Laws
Division], and Chapter 6 [Pensions].
start date for the increase, and were otherwise subject to the Amendment

(“Plaintiffs”).2 For the reasons which follow, we affirm the grant of summary

judgment in favor of Defendants on Plaintiffs’ claims of breach of contract and

unconstitutional impairment of contract and their consequent requests for

declaratory and injunctive relief.

       As noted, the Plans are defined benefit pension plans. As such, they

provide each eligible member3 with a monthly income upon retirement for the

remainder of the member’s life and a monthly income to the member’s surviving

eligible beneficiary, if applicable, for the remainder of the surviving eligible

beneficiary’s life. The member’s annual benefit amount is a percentage of the

member’s annual salary, and is calculated at retirement by using a pre-

determined formula.4

       Prior to November 1, 2011, members were required to contribute 7% of

their annual salary to their pension plan if they did not have a designated eligible


       2
           The class is comprised of more than 6,000 Plaintiffs.
       3
           The Plaintiffs are all eligible members.
       4
         The benefit formula for all three Plans calculates an annual pension amount by multiplying
the member’s years of service by a multiplier established in the pension plan in which the employee
is enrolled.


                                                      2
beneficiary, and 8% of their annual salary to their pension plan if they had a

designated eligible beneficiary. The contributions were made subsequent to

enrollment in the Plans, as memorialized by the execution of enrollment cards

at the onset of employment. The Plans, as they existed at the time of Plaintiffs’

enrollments, contained provisions (collectively “Enrollment Provisions”) which

stated that the receipt of an executed enrollment or application card would

constitute the irrevocable consent of the applicant to participate under the

provisions of the governing act, as amended, or as might thereafter be amended.

      On June 29, 2011, the City enacted Atlanta Ordinance 11-O-0672, which

amended the Plans. Section 5 of the Ordinance, inter alia, increased Plaintiffs’

prospective annual contributions to the Plans by an additional 5% of the

member’s annual compensation.5 Section 9 of the Ordinance further provided

that members’ contributions might be increased by an additional 5%, up to 17%

or 18% of their annual compensation, if the City’s actual required contributions

      5
          The Ordinance provides in Section 5 (d) (2) in pertinent part:

                Beginning on November 1, 2011, each DB [defined benefit] Plan Participant
                hired prior to that date shall contribute 12% of his/her Compensation to the
                applicable DB Plan if [he/she] does not have a designated beneficiary, and
                shall contribute 13% of [his/her] Compensation to the applicable DB Plan if
                [he/she] does have a designated beneficiary [.]


                                                  3
to the Plans exceed 35% of the City’s total payroll.6 The pension contribution

increases were not retroactive and did not change a member’s benefit formula,

calculation of pension benefit, or actual benefit amount payable at the time of

retirement.

      The complaint, which was filed on November 14, 2013, alleged that

Defendants breached Plaintiffs’ employment contracts and violated the

impairment clause of the State Constitution (“Impairment Clause”), Ga. Const.

of 1983, Art. I, Sec. I, Par. X,7 when Defendants passed the portions of the

Ordinance which increased the amounts that the Plaintiffs were required to

contribute to the Plans, even though Plaintiffs would receive the same amount

of retirement benefits to which they were already entitled prior to passage of the

Ordinance. Plaintiffs sought a declaration that the subject portions of the

Ordinance violated the Impairment Clause and that Plaintiffs were not required

      6
          Section 9 of the Ordinance also provides:

                 In the event that the unfunded liability amount reaches 15% or less, the City may
                 reduce the DB Plan Participants’ contribution amount through duly enacted
                 legislation.
      7
          Ga. Const. of 1983, Art. I, Sec. I, Par. X, provides:

      No bill of attainder, ex post facto law, retroactive law, or laws impairing the obligation of
      contract or making irrevocable grant of special privileges or immunities shall be passed.


                                                   4
to continue to make the increased contributions to the Plans, and an order

enjoining and restraining Defendants from collecting or attempting to collect the

increased contributions. Plaintiffs moved for class certification on November

14, 2013. On January 2, 2014, Defendants filed an answer and motion to

dismiss, or in the alternative, motion for summary judgment. On March 20,

2014, Plaintiffs filed a motion for partial summary judgment on the issue of

Defendants’ liability. A consent order certifying the suit as a class action was

entered on April 3, 2014. Following a hearing on the motions on May 15, 2014,

the superior court entered on November 10, 2014, the “final order”8 now at

issue, denying Plaintiffs’ motion for partial summary judgment and granting

summary judgment to Defendants. The superior court did so after concluding

that government employees and their beneficiaries have no vested rights in an

unchanged benefit plan where the pension or retirement plan at issue



        8
         On December 26, 2014, Defendants filed a motion for attorney fees and expenses of
litigation pursuant to OCGA § 9-15-14, which was pending at the time of this appeal. Also,
following the filing of their notice of appeal, Plaintiffs filed in superior court a motion for new trial
based upon alleged newly discovered evidence, specifically, a 2009 letter written by then Atlanta
mayor, Shirley Franklin, which purported to acknowledge that the City could not legally decrease
existing employees’ pension benefits. The superior court denied the motion on February 18, 2015,
after finding that the letter was of no legal relevance or material evidentiary value. That ruling is not
before us for consideration.


                                                   5
unambiguously provides for subsequent modification or amendment, and that

there was no ambiguity in the City’s Enrollment Provisions - that they clearly

authorized the City to amend the Plans without breaching Plaintiffs’

employment contracts or violating the Impairment Clause.

      Plaintiffs’ claims of breach of their employment contracts and violation

of the Impairment Clause, in the context of litigation such as this, are subject to

the same analysis inasmuch as allegations of violation of the Impairment Clause

have historically been treated as raising breach of contract issues. City of East

Point v. Seagraves, 240 Ga. App. 852, 854 (1) (524 SE2d 755) (1999); see also

Pulliam v. Ga. Firemen's Pension Fund, 262 Ga. 411 (419 SE2d 918) (1992).

      The analysis must begin with the recognition that municipal corporations

are creations of the State, and therefore, have only those powers that have been

expressly or impliedly granted to them. Porter v. City of Atlanta, 259 Ga. 526

(1) (384 SE2d 631) (1989). Such powers are delegated by the State via the State

Constitution, State laws, and municipal charters. Id. In such context, assessing

the validity of a city ordinance generally involves a two-step process: the first

inquiry is whether the city possessed the power to enact the ordinance at issue,



                                         6
and if the power exists, the second question is whether the exercise of that

power is clearly reasonable. Id.

                      I. City’s Power to Enact Ordinance

      Ga. Const. of 1983, Art. IX, Sec. II, Par. II provides “home rule” for

municipalities, that is:

             The General Assembly may provide by law for the
             self-government of municipalities and to that end is
             expressly given the authority to delegate its power so
             that matters pertaining to municipalities may be dealt
             with without the necessity of action by the General
             Assembly.


      The State Constitution also explicitly confers upon municipalities

authority in regard to maintaining and modifying retirement or pension systems,

e.g., a municipality has:

             [t]he power to maintain and modify heretofore existing retirement
             or pension systems, including such systems heretofore created by
             general laws of local application by population classification, and
             to continue in effect or modify other benefits heretofore provided
             as a part of or in addition to such retirement or pension systems and
             the power to create and maintain retirement or pension systems for
             any elected or appointed public officers and employees whose
             compensation is paid in whole or in part from county or municipal
             funds and for the beneficiaries of such officers and employees.



                                        7
      Ga. Const. of 1983, Art. IX, Sec. II, Par. III (a) (14).

      In addition, the General Assembly has expressly authorized municipalities

to establish and finance retirement systems and to provide retirement and

pension benefits. OCGA § 36-34-2 (4) confers upon the governing body of any

municipal corporation,

            [t]he power to establish merit systems, retirement
            systems, and insurance plans for all municipal
            employees and to establish insurance plans for school
            employees of independent municipal systems and to
            provide the method or methods of financing such
            systems and plans; . . .

      (Emphasis added.) Furthermore, OCGA § 36-35-4 (a), in relevant part,

authorizes a municipal corporation’s governing authority to provide retirement

and pension benefits:

            The governing authority of each municipal corporation
            is authorized to . . . provide . . . retirement, and pension
            benefits, . . .for its employees, their dependents, and
            their survivors . . . .

      And, subsection (d) of OCGA § 36-35-4 defines the terms “retirement”

and “pension” as used in subsection (a) of the statute,

            As used in subsection (a) of this Code section, the
            words “retirement” and “pension” shall mean


                                         8
              termination from municipal service with the right to
              receive a benefit based upon all or part of such
              municipal service in accordance with the terms of the
              ordinance or contract pursuant to which the
              municipality provides for payment of such benefits.

      (Emphasis added.) Thus, the cited legislation explicitly contemplates that

a municipal corporation’s provision of retirement or pension benefits to its

employees be read in conjunction with the terms of local law and ordinances,

that is, that such provision of benefits be supplemented by local law such as that

contained in the Code of the City of Atlanta (“City Code”) and the Charter of

the City of Atlanta (“City Charter”). Duty Free Air & Ship Supply Co./Franklin

Wilson Airport Concession, Inc. v. City of Atlanta, 282 Ga. 173, 174 (646 SE2d

48) (2007).

                    II. Reasonableness of Ordinance

      The pivotal question as to the reasonableness of the exercise of power, i.e.,

the Ordinance, is whether it constitutes a breach of Plaintiffs’ employment

contracts, and consequently, amounts to a violation of the Impairment Clause.

It is certainly true,

              that a statute or ordinance establishing a retirement plan
              for government employees becomes a part of an


                                          9
            employee's contract of employment if the employee
            contributes at any time any amount toward the benefits
            he is to receive, and if the employee performs services
            while the law is in effect; and that the impairment
            clause of our constitution . . . precludes the application
            of an amendatory statute or ordinance in the calculation
            of the employee's retirement benefits if the effect of the
            amendment is to reduce rather than increase the
            benefits payable. It is not necessary for an application
            of this rule that the rights of the employee shall have
            become vested under the terms of the retirement plan
            while the amendment is in effect. Rather, if the
            employee performs services during the effective dates
            of the legislation, the benefits are constitutionally
            vested, precluding their legislative repeal as to the
            employee, regardless of whether or not the employee
            would be able to retire on any basis under the plan.

      Withers v. Register, 246 Ga. 158, 159 (1) (269 SE2d 431) (1980) (Internal

citations omitted.)   However, that is not the end of the inquiry as to any

violation of the employment contracts or the Impairment Clause. Indeed, as the

superior court aptly stated,

            where the legislation establishing a pension plan itself
            provides that the plan may be subject to modification or
            amendment, the participant does not acquire a vested
            contractual right in an unchanged plan and the plan
            may be amended without breaching employment
            contracts or violating the Impairment Clause.

      In Pulliam v. Georgia Firemen's Pension Fund, supra, the pensioner, who


                                       10
had been receiving a disability pension from the Georgia Firemen’s Pension

fund for almost 20 years, received notice that his pension would be terminated

as a result of a 1989 statutory amendment which provided for termination of

benefits in the event a pensioner was employed in any capacity at least half-time.

On appeal to this Court, the pensioner, inter alia, contested the legality of the

1989 amendment to the pension statute. He contended that it was error for the

trial court to determine that he had no contractual right to benefits under the

terms of the pension statute as it existed prior to the 1989 amendment; that the

1989 legislation could be applied to him without an unconstitutional impairment

of contract; and that the 1989 amendment did not violate the Georgia statutory

prohibition against retroactive legislation. Pulliam at 412 (1).      This Court

observed that all such claims raised the core issue of whether the pensioner had

a property right in the pension benefits, which right could not be taken by

legislative action; relying on Withers v. Register, supra, the pensioner contended

that he did indeed have such a property right. Id. This Court quoted from its

decision in Pritchard v. Bd. of Comm. of Peace Officers Annuity & Benefit Fund

of Georgia, 211 Ga. 57, 59 (84 SE2d 26) (1954), which involved a statutory



                                       11
provision equivalent to that involved in Pulliam:

            [Pritchard] paid his money into the fund with the act
            providing that it was subject to legislative change and
            that he should not have any vested right to annuities or
            benefits in the fund. There was no contract that the plan
            of annuities and benefits should never be changed. On
            the contrary, it was recognized that the legislature
            might find it necessary to make changes ....


      And, this Court concluded that the constitutional vesting of rights in

pensions is grounded in the principle that pension rights are property and cannot

be taken; however, that they are property because they become part of the

contract of employment. Pulliam at 412 (1). In that case, the provision for

subsequent amendment was part of the contract of employment when the

pensioner entered into it. Id. And, significantly because a benefit that had been

paid to a pensioner was being taken away from the pensioner, the legislative act

not only provided for future change but also expressly stated that members of

the pension fund did not have vested rights to any benefits. Id. This explicit

legislative statement that pensioners did not acquire any vested rights was

likewise the situation in Pritchard. Pritchard supra at 59. Consequently, in both

Pulliam and Pritchard, there was no breach of the contracts or unconstitutional


                                       12
impairment of contract by virtue of the legislative changes.

      The present case is not one in which there is an express legislative

statement regarding the acquisition of vested pension rights, or the lack thereof;

however, it is also not a situation in which pension benefits, which have already

been conferred upon pensioners, are being reduced, suspended, or terminated.

In Hartsfield v. Mitchell, 210 Ga. 197 (78 SE2d 493) (1953), a teacher in the

Atlanta School System, pursuant to the Retirement Act of 1927, Ga.L.1927, p.

265, had salary deductions from the effective date of the act, so that he would

have been entitled to receive one-half of the salary he was receiving at the time

of his retirement in 1945, as provided in that act. However, the original act of

1927 was amended in 1935, Ga.L.1935, p. 445, to, inter alia, change the amount

of salary deductions and fix the amount of retirement benefits not to exceed

$100 per month. In 1935, the teacher had signed and filed with the board of

trustees, a written statement containing the clause, “I hereby authorize City

Controller to make necessary deductions from my wages or salary in order that

I may participate in the pension benefits of the 1927 Pension Laws as amended,”

and then approximately ten years later in 1945, signed and filed a similar



                                        13
statement with the board of trustees. This Court determined that such statements

evidenced, inter alia, the teacher’s irrevocable consent to the law as changed by

amendment. Hartsfield v. Mitchell, supra at 197. Subsequent cases have also

focused on the circumstance of the legislative act creating the pension rights or

benefits expressly stating that it is subject to legislative change. See City of E.

Point v. Seagraves, 240 Ga. App. 852 (524 SE2d 755) (1999) (city employee did

not have vested right in retirement plan benefits where retirement plan

specifically provided that city could terminate plan by adoption of ordinance);

DeKalb Cnty. Sch. Dist. v. Gold, 318 Ga. App. 633 (734 SE2d 466) (2012) (the

statute establishing benefits plan for government employees provides that it is

subject to change; therefore, there is no contract that the plan of benefits should

never be changed); Murray Cnty. Sch. Dist. v. Adams, 218 Ga. App. 220 (461

SE2d 228) (1995) (class action by school employees for terminating employer

matching of employees' voluntary contributions to retirement plan for

previously established annuity retirement savings plan; plan itself provided for

future modification or termination, so employees did not have property right in

unchanged benefits); Webb v. Whitley, 114 Ga. App. 153 (150 SE2d 261) (1966)



                                        14
(by executing written statement authorizing deductions from wages for

participation in pension benefits provided by statute as amended, city fireman

irrevocably consented to the law as changed by amendment and surrendered any

right to claim benefits as originally provided by the pension law).

       As noted, the General Assembly expressly contemplated that a municipal

corporation’s provision for employee retirement or pension benefits would be

subject to being supplemented by local law, such as that contained in the City

Code and the City Charter. Also as noted, the Plans as set forth in the Related

Laws expressly provide for modification by explicit notice in the Plans’

Enrollment Provisions. The precise language of these Enrollment Provisions

was established by the General Assembly in 1980.9

       The City’s General Employees’ Pension Plan set forth in Related Laws §

6-39 states:

               The receipt of an applicant’s executed enrollment or
               application card by the commissioner of finance or his
               agent shall constitute the irrevocable consent of the
               applicant to participate under the provisions of this

       9
          The language of the enrollment provision of the City’s General Employees’ Pension Plan
is set forth in 1980 Ga. Laws 3691, § 1; that of the City’s Police Officers’ Pension Plan is set forth
in 1980 Ga. Laws 3206, § 1; and that of the City’s Firefighters’ Pension Plan is stated in 1980 Ga.
Laws 3204, § 1.


                                                 15
            Act, as amended, or as may hereafter be amended.
            (Emphasis supplied.)

      The City’s Police Officers’ Pension Plan set forth in Related Laws §6-223

and the City’s Firefighters’ Pension Plan set forth in Related Laws § 6-368

contain virtually the identical statement, the only language difference being use

of the word “hereinafter” instead of “hereafter.”

      As discussed, the statute or ordinance establishing a retirement plan for

government employees becomes part of the employee's employment contract

once the employee makes a contribution toward the benefits the employee is to

receive, and performs services while the law is in effect. Withers v. Register,

supra at 159 (1). Consequently, the Plans which include their legislatively-

established Enrollment Provisions are part of Plaintiffs’ employment contracts,

so the next step in the analysis is an examination of the contractual Enrollment

Provisions, that is, construction of the contracts.

            In general,

            [t]he construction of contracts involves three steps. At
            least initially, construction is a matter of law for the
            court. First, the trial court must decide whether the
            language is clear and unambiguous. If it is, the court
            simply enforces the contract according to its clear


                                        16
             terms; the contract alone is looked to for its meaning.
             Next, if the contract is ambiguous in some respect, the
             court must apply the rules of contract construction to
             resolve the ambiguity. Finally, if the ambiguity remains
             after applying the rules of construction, the issue of
             what the ambiguous language means and what the
             parties intended must be resolved by a jury.


      City of Baldwin v. Woodard & Curran, 293 Ga. 19, 30 (3) (743 SE2d 381)

(2013), quoting Record Town, Inc. v. Sugarloaf Mills Ltd. Partnership of Ga.,

301 Ga. App. 367, 368 (687 SE2d 640) (2009). As stated, the superior court

found the Enrollment Provisions to be unambiguous in authorizing the City to

amend the Plans. On appeal, this Court’s review of a trial court's construction

of a contract is de novo.        Unified Gov't of Athens-Clarke Co. v. Stiles

Apartments, Inc., 295 Ga. 829, 832 (1) (764 SE2d 403) (2014). The cardinal

rule of contract construction is to ascertain the intention of the parties; however,

when the contract terms are clear and unambiguous, the reviewing court looks

solely to the contract itself to determine the parties' intent. Id.; Lloyd's Syndicate

No. 5820 v. AGCO Corp., 294 Ga. 805, 812 (2) (756 SE2d 520) (2014). Here,

the language of the Enrollment Provisions is plain, unambiguous, and capable

of only one reasonable construction in regard to the two points critical to the


                                         17
resolution of the challenge in this case: that the receipt of an applicant’s

executed enrollment or application card evidenced the applicant’s irrevocable

consent to participate in the applicable retirement plan, and that the applicant

would do so under the plan’s governing laws as then amended, or as might be

amended in the future. Thus, Plaintiffs did not acquire a vested contractual right

in a retirement plan unaltered in the manner at issue. Pulliam, supra at 412 (1).

This is so irrespective of the fact that there was no express statement in the

governing laws that participants in the Plans would not have vested rights. See,

e.g., Hartsfield v. Mitchell, supra.; City of E. Point v. Seagraves, supra.; DeKalb

Cnty. Sch. Dist. v. Gold, supra.; Murray Cnty. Sch. Dist. v. Adams, supra.; Webb

v. Whitley, supra.   Indeed, in Pritchard, this Court, citing the United States

Supreme Court case, Wright v. Minnesota Mut. Life Ins. Co., 193 U.S. 657 (24

SCt. 549, 48 LEd 832) (1904), stated that even if the appellant pensioner had

vested rights in his plan’s benefits, he had no vested rights to a continuation of

the original plan in all respects. Pritchard at 59. In Pulliam, this Court

explained that,

            [t]he basis for the constitutional vesting of rights in
            pensions is that the pension rights are property and


                                        18
                cannot be taken. However, they are property because
                they become part of the contract of employment, and as
                this court pointed out in Pritchard, the provision for
                subsequent amendment was part of the contract when
                appellant entered into it.

      Pulliam at 412 (1). This comports with the principle that

                [t]o be vested, in its accurate legal sense, a right must be complete
                and consummated, and one of which the person to whom it belongs
                cannot be divested without his consent. A divestible right is never,
                in a strict sense, a vested right.

      Merchants' Bank v. Garrard, 158 Ga. 867, 871 (2) (124 SE 715) (1924).

      Recently, in Taylor v. City of Gadsden, 767 F3d 1124 (2014), the United

States Court of Appeals for the Eleventh Circuit considered a class action

brought by firefighters against the City of Gadsden, Alabama, and its mayor

challenging increases in the pension contribution rates of firefighters with more

than ten years of creditable service into the state-administered retirement fund

as violative of the Contract Clause of the State and Federal Constitutions.10

      10
           In the opinion’s introductory paragraph, the Court observed,

                This case presents a problem common to most cities in the United States.
                Their pension funds have been operating at a substantial loss, and the cities'
                long-term liabilities are becoming unfunded at an exponentially increasing
                rate. That is, the contributions employees and cities are making to pension
                funds – as a percentage of the employees' salaries – are being used to pay the
                pensions earned by retirees instead of being set aside and invested for
                employees' retirements.


                                                 19
Gadsden had raised its employees' pension contributions by 2.5% of their total

compensation pursuant to state legislation mandating the increase for state

employees and permitting, but not requiring, localities to do the same. Id. The

responding lawsuit was brought by a class of Gadsden firefighters whose

contribution rate was raised from 6% to 8.5%; they alleged that such action by

the City of Gadsden impaired the terms of their employment contracts, in

violation of both the United States Constitution and the Alabama Constitution.

Id. at 1126-27. The plaintiff firefighters sought a declaratory judgment and

preliminary and permanent injunctive relief restraining Gadsden from

implementing the increased pension contribution rate of the affected pension

plan participants. Id. at 1131.     Upon consideration of cross-motions for

summary judgment, the District Court rejected the constitutional claims and

dismissed the case with prejudice, after finding that the firefighters had failed

to demonstrate that any contractual right had been impaired. Id. at 1127, 1131.

       The Eleventh Circuit affirmed the judgment of the District Court after

finding that the increase in the firefighters’ pension contributions did not impair



Id. at 1126.


                                        20
their employment contracts in the contexts of both the United States and

Alabama Constitutions. Id. at 1136. Pretermitting any differences in contract

impairment analysis under federal law and Alabama law, key portions of the

Eleventh Circuit’s analysis are instructive in the present case. Those plaintiffs

argued that the Gadsden firefighters who had complied with certain statutory

requirements possessed a vested right to the 6% employee contribution rate. Id.

at 1134. The Court observed that such argument “[relied] on the assumption that

there exists an implied promise not to raise the employee contribution rate once

a firefighter becomes eligible for retirement benefits.” Id. Noting, inter alia,

that the retirement system employee handbook “explicitly stated that the

‘member contribution rate is determined by statute and subject to change by the

Alabama Legislature,’” the Court then found that “whatever contractual terms

preside over the employment relationship between the [City of Gadsden] and its

firefighters, a promise to refrain from raising contribution rates is not one of

them.” Id. at 1134-1135. This was followed by the Court’s astute observations

that:

            the [City of Gadsden] did not alter plaintiffs' pension
            benefits; instead, it altered their pension obligations.


                                       21
            This distinction – between pension benefits and
            pension obligations – is warranted by the well-worn
            difference between earned and anticipated
            compensation under the Contract Clause. . . . Nothing
            in the challenged legislation divests plaintiffs of their
            earned pension benefits. Instead, the increased
            contribution rate simply reduces plaintiffs' anticipated
            compensation by deducting an additional 2.5% from
            their future take-home pay. . . . [I]ndirect effects on
            pension entitlements do not convert an otherwise
            unvested benefit into one that is constitutionally
            protected.

      Id. at 1135, in part quoting San Diego Police v. San Diego Ret. Sys., 568

F3d 725, 738 (9th Cir.2009) (Internal citations and quotation marks omitted.)

The Eleventh Circuit concluded,

            In sum, plaintiffs have no contractual right to a static,
            inviolable 6% contribution rate. The City was free to
            amend the employee contribution rate without
            constitutional consequence.

      Taylor v. City of Gadsden, at 1135-1136.

      In this case, as in Taylor, the local legislation at issue, i.e., the Ordinance,

did not alter Plaintiffs' pension benefits, but rather modified their pension

obligations, and in no manner divested Plaintiffs of their earned pension

benefits, so as to implicate constitutional concerns. Simply, in the present case,



                                         22
there was no breach of the employment contracts or the Impairment Clause in

the manner urged by Plaintiffs, and therefore, such alleged breach and

impairment fail to provide a basis upon which to find that the Ordinance is

unreasonable. Furthermore, inasmuch as the increases in pension contributions

pursuant to the Ordinance and Amendment were not retroactive and the

Ordinance and Amendment do not alter benefit formulas, calculations of

pension benefits, or the actual benefit amounts payable to the participants at the

time of retirement, such circumstances likewise do not negatively impact the

Ordinance. And, Plaintiffs have not provided any other meritorious legal basis

upon which to find the Ordinance unreasonable.

      Accordingly, we conclude that the superior court properly granted

summary judgment in favor of Defendants on Plaintiffs’ claims of breach of

contract and unconstitutional impairment of contract.

      Judgment affirmed. All the Justices concur.




                                       23
