Contretemps (Stuck in the Middle?)

Contretemps (…stuck in the middle, again)

Noun:  (French) an awkward or difficult place or situation, a mishap or predicament.

Hopefully, the to-be-convened summit planned by We Are One for Feb. 11th will yield fruit, if legislators will attend - as some of the "pension reform leadership" have yet to acknowledge interest or even awareness.  In fact, Representative Elaine Nekritz of Northbrook, a sponsor of the pension reform bill HB6258 recently responded that she had not heard of the summit (http://www.sj-r.com/breaking/x1578914071/State-unions-propose-pension-summit ).  

Between last week and the next month’s scheduled summit, retiree Glen Brown reiterated a long-espoused position that Illinois faces a revenue problem, complicated by its pension debt in a petition on Signon.Org.  To date, Glen has received nearly 4000 signatures and another thousand calls to hold firm against the General Assembly’s maneuverings to place the weight of the revenue correction on the public sector workers – past and present.  Various members of the public sector leadership(s) in Illinois have signed on, and one (IRTA) has placed the petition on its website (http://signon.org/sign/illinois-revenue-and?source=c.em.cp&r_by=1130041 ). 

Others have decided that while they support the undertakings of activists and thinkers like Glen, they cannot concur specifically to the call as expressed in the petition’s wording.  Note:  Those same leaders have also, in some cases, signed that very petition.   On the other hand, if not exactly on message, others warn that such examples of rolling the dice or obstinacy is ultimately a self-defeating extremism.  Such contretemps fails to recognize the like enemy we all face beginning January 30^th.  In fine, we all need be mindful that identifying our separate positions as extremist will not help, and that Glen's response to the perceived issues surrounding his petition are quite revealing and reverberating.  The actual extremism is found in the latest bills - Nekritz's HB 6258 and Cullerton's secondary option in case the first is found unconstitutional.

Whether or not the coalition of public sector unions can endorse a petition or not, to ask We Are One to hold firm is to remind our leadership that contractual guarantees were made and broken by the same people who would come to the summit; to remind them that thus far the move to correct the unfunded liability is being placed on the very people from whom promised payments were stolen over nearly half a century.  They would deny our COLA’s, increase our contributions beyond any other state, cap our benefits, increase our retirement ages, offer the falsity of cash balance plans in the place of defined benefits, choose to lose our health benefits, punish us for having worked in the public sector, and (if possible) push the cost for pensions to the local districts.  Extremism in this case is an understatement. 

Indeed, IEA leadership’s warning that to do nothing and simply await a court decision is also unthinkable.  Recall that the statement “Let the courts decide” was the cynical prediction made by Speaker Madigan – who has been eerily silent – nearly two years ago.  That is not the message of the petition; case in point, Glen's petition to correct the revenue problem must be the primary focus if anything permanent and lasting is to be accomplished.  The Center for Tax and Budget Accountability reminds us all that even given the benefit cuts in their entirety, the cuts will never keep pace with the 1995 ramp-up to pay back the unfunded liability of years of non-payment by the state.  Nothing in HB 6258 does anything to address the systemic, structural revenue failure in Illinois.  Nothing in any proposed legislation put forward have yet to address the ridiculous pension ramp, which "squeezes" the budget annually at ever-increasing rates.  In fact, the General Assembly would return again to find more ways to cut more benefits, as that seems their extremist nature. 

What We Are One and what the petition desires are not so very different: to call attention to serious long-term answers to the revenue crisis in Illinois, and to demand that the General Assembly address the problem without breaking the contractual agreements made to all in the public sector who have given what was asked - in work and in payment.  In the last week, proposals by Representative Naomi Jakobsson and Representative  Linda Chapa La Via for a graduated income tax (HJRCA0002) may perhaps demonstrate a first legislative recognition that revenue is both the problem and the answer.  Last spring, I listened to the Representative Bill Cunningham, Representative Kelly Burke, and Representative Mary Flowers endorse their own beliefs that a graduated income tax was necessary in the near future to help Illinois move forward financially.  Lately I see that Representative Kelly Cassidy has also signed on the need for a graduated income tax. 

Perhaps there are other voices and minds besides the extremists – in the General Assembly.  Let’s keep talking to them.

Liar's Dice - Signed the Petition Yet?

Liar’s Dice (Article XIII, Section 5 isn’t bluffing?)

Noun:  Liar’s dice is a game that involves great abilities in deception and bluffing.  In it, two or more players roll four or more dice under a cup, peek at their own result, and make bets against the other player(s).  As with most gambling games – appropriate to our vocabulary post this week – probability plays an almost equally important role in the chances of winning.

While the coalition of public sector unions (We Are One) plan a "summit" to explore negotiated agreements with the General Assembly in order to avoid a Constitutional battle in the courts after possible legislation to pension benefits/contributions; thousands of retired and active public employees are signing a petition asking these same union leaders to hold firm. Have you decided yet where you stand? 

The summit is planned for February 11^th in Burr Ridge, Illinois, and invites Governor Quinn and four representatives from the General Assembly to parley with We Are One representatives about the nature of the changes to be made to the public pension systems in Illinois, now facing a collective unfunded liability of $94 billion.

We Are One has asked repeatedly to be given a seat at the table, and now they have asked to meet with those members and leadership who have moved several potential bills before the assembly for consideration in late January.  Up to this point in time, the public sector unions have declared they were not invited or part of the potential legislative fixes.  Union leadership has disagreed with cuts in pension benefits, but they have offered additional contributions and changes to the business tax codes as possible solutions. Invitee Rep. Elaine Nekritz, D-Northbrook, had not heard of the union summit, but said she hopes the talks might produce some results. At the same time, she said "it will be challenging to come to agreement on the nature of the solution," particularly on ending business tax breaks.

Those who wish to hold firm place their faith in the Illinois Constitutional guarantee of a “contractual relationship” that “cannot be diminished or impaired.”  They also disbelieve any action by members of the General Assembly to refrain from returning for more benefits after passing any legislation (even untested in the courts) that does not address the systemic revenue shortage or the 1995 payment ramp.

You will find a clearly, logically delineated argument presented in colleague Glen Brown’s latest blog.  Have you decided yet where you stand?  Your time’s up.

Modification of Contract Principles (and what many petitioners want their unions to do)

Why doesn’t the Illinois Education Association join our efforts and post our public employees’ petition on its website? Perhaps it is because the Illinois We Are One Coalition is planning a “summit” with a few, thus far, unsuspecting legislators (like Elaine Nekritz, for example, “who [said she] had not heard about the union summit”) slated for February 11 and because “unions have said they’re willing to have members pay more toward their pensions” in exchange for “ending a series of business tax breaks…” (State unions propose pension summit).

Perhaps it is also because IEA president Cinda Klickna and her coterie are wary of a possible court battle; thus, they are willing to modify a contract as a sort of offering or appeasement, hoping legislators will forgo a constitutional challenge of Article XIII, Section 5 (“Pension Clause”). Nonetheless, many of us believe there will never be enough placation to satisfy any unscrupulous legislator with a mania for so-called “pension reform.” Too many legislators are deeply dependent on the Civic Committee of the Commercial Club of Chicago’s campaign money and influenced by the Committee’s collective ill-will toward public employees. Eric M. Madiar, Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate, states it this way: “Pension benefits are under siege for two reasons: opportunity and political motives” (Defending and Protecting Public Employees’ Pensions against the Legislative Siege).

Many public employees (read the comments on our petition online) argue that unions should not bargain away any of the public employees’ “constitutionally-guaranteed,” earned rights and benefits. Why? Because “a public employee obtains ‘vested rights’ in the Pension Code provisions relevant to pension benefits when the employee becomes a member of a pension system by making his or her initial employee contribution to the system. In addition, the ‘Pension Clause’ protects pension benefit rights as an enforceable contractual relationship” (Madiar, “Is Welching on Public Pensions an Option for the State of Illinois…”).

Cullerton knows this is true. Perchance this is why he has sponsored a bill (it passed the senate) that will attempt to circumvent the “Pension Clause” by giving retirees and public employees a “choice” to impair their own contract for a state guarantee (really?) to fund the pension systems hereafter (here’s a question with a built-in answer: who will guarantee this funding when the state’s “normal costs” are shifted to school districts and taxpayers?). Cullerton’s bill also provides a supposed failsafe, just in case the Civic Federation and Civic Committee of the Commercial Club of Chicago’s (or the Nekritz-Biss) pension reform bill, that Cullerton says will be found “unconstitutional,” is, indeed, found unconstitutional.

All the same, John Stevens, Legal Consultant for the “We Are One” Labor Coalition, stated “To take away the Cost-of-Living Adjustment [COLA] for [current and future] retirees is not a free and fair choice. It is a coercive choice under duress.” In other words, Illinois legislators will be breaching a contract by forcing public employees to make a choice to diminish their originally-vested and paid-for guarantee. Legislators will be attempting to break an enforceable contractual promise, one that is bilateral and emphasizes an agreement between the State of Illinois and its retired and current public employees as to their future rights and benefits.

It is a diminution of the public employees’ contract to receive less than what the original vested right and benefit guaranteed. A choice between the COLA and precarious state-sponsored health care, for example, offers public employees and retirees no ethical and lawful alternatives except to consent to the General Assembly’s demands to make an illicit choice.

Consider that “A contract is a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty (Professor of Law, Emeritus, Claude D. Rohwer and Professor of Law, Emeritus, Anthony M. Skrocki, Contracts in a Nutshell).

Based upon both past and current legislators’ dereliction of duty to pay for the public employees’ constitutionally-guaranteed pensions, it could be found in a court of law that the Illinois General Assembly has been and will be currently in “violation of any standard of good faith and fair dealing.” Regarding the guaranteeing of payments to the public employees’ pension systems, “there is no way to avoid the conclusion that [it] is a ‘constructive’ condition to [the General Assembly’s] duty to pay,” (Rohwer & Skrocki), and a “diminishment and impairment” to the contract or “expressed condition” of the “Pension Clause.”

Any modification of the “Pension Clause” should be seen as “the result of a violation of fair dealing,” as an accommodation for “only” the General Assembly who have stolen money from the public pension systems for decades and are, thus, “avoiding a pre-existing duty rule” (Rohwer & Skrocki). In other words, state legislators were dishonest. “[They] had a duty to perform [and] didn’t perform [for decades] and, therefore, [they have] breached [their] contract [with public employees]” (Rohwer & Skrocki).

“Because there is already a contract relationship in existence which imposes a duty of good faith upon the parties, there is an issue of whether [this General Assembly will be] acting in bad faith [once again] in extracting a [coerced] consent to [a] modification [or impairment of a contract]…” (Rohwer & Skrocki).

The significance of any modification of the “Pension Clause” is “the extent to which [public employees] will be deprived of the benefit [they] reasonably expected; the extent to which [public employees] can be adequately compensated for the part of that benefit [COLA, for instance] of which [they] will be deprived; […and] the extent to which the behavior of the party [Illinois General Assembly] failing to perform or to offer to perform [or] comports with standards of good faith and fair dealing” (Rohwer & Skrocki).

The promise to honor commitments and pay for the public employees’ pension is of “sufficient importance” to all citizens of Illinois. To pass pension reform is “an unequivocal manifestation of intention not to perform… legal duties…under a contract… [To repeat,] when there is a duty of immediate performance of a promise, failure to perform in full is a breach” (Rohwer & Skrocki).

Many of us maintain that our unions should not lessen the constitutionally-guaranteed “Pension Clause” that “protects pension benefit rights as an enforceable contractual relationship” by “modification through contract principles.” Why? Because Cullerton, House Speaker Michael Madigan and his servile followers (Nekritz, Biss, and others) have made it obvious that they are willing to let “the courts decide” whether their pension reform bills are illegal or not, regardless of the myriad of upheld antedated cases on this matter and their oath of office to uphold the State and U.S. Constitutions.

Though many legislators would rather dispute one of the Bill of Rights contained in both the Illinois and U.S. Constitutions instead of addressing the “real causes” of the state's budget deficits (the pension ramp, the resultant pension debt, and the state’s insufficient revenue), legislators should reexamine the concept of justice and what lawfulness demands: that people must keep their covenants with one another. In particular, no justice is accomplished when diminishing public employees' earned benefits and rights because of decades of legislators' irresponsibility, corruption and incompetence.

Let’s not forget this essential understanding on how we have arrived in this economic predicament. The state’s unfunded liability has increased to $94 billion. Forty-six percent of that figure ($43.2 billion) was machinated by legislators of the State of Illinois. All citizens of the State of Illinois are in this fiscal morass primarily because of scheming Illinois legislators. Today’s calamity is not the result of a financial problem that was unforeseen at the time of the Illinois Constitutional Convention of 1970. To reiterate, the unfunded liability is a consequence of legislative negligence, dishonesty and ineptitude. There should not be any consideration (contract modification) of the public employees’ earned benefits. Thus far, 3,000+ petitioners are quite lucid and resolute about this conviction.

To respect a contractual promise as a legitimate right and moral concern is at stake for public employees and every other citizen in this state. Illinois pension reform is without legal and moral justification.

To Illinois legislators: Stop Illinois pension reform

To union leadership: Stand firm. Public employees have been victimized enough. They do not want to contribute more money to their pension fund (one of the highest in the nation), especially when considering the aforementioned fraudulent intentions of past Illinois legislators.

Dear reader: Please sign our petition and pass it on to others.

Click here: Illinois Debt and Revenue Reform, Not Pension Reform

Thank you Gary Elmen, President of the Illinois Retired Teachers Association, for linking our petition to the IRTA website. Thank you Dan Montgomery, President of the Illinois Federation of Teachers, for signing our petition; thank you – public employee, retiree, and family and friends – for signing this most important petition to stop pension reform…

Sincerely,

Glen Brown

Dividualism: For your own good, too

Dividualism (…for your own good, too)

Noun:  A description of a personal philosophy “in touch” with a sense of community, responsibility to the betterment of all those around him/her; one with a wish for the amelioration of the marginalized, scapegoated, or institutionally deprived. A credo driving the desire to seek what is morally correct and in the best interest of the greater good.

Do Something Now:  Despite the history of pension holidays and underfunding, recent bills before the House and additional amendments by the Senate demonstrate that the General Assembly in Illinois is quite willing to blame much of the unfunded liability for pensions on the public sector workers and illegally force them to pay for all of the state’s debt. 

Many Illinois legislators want to challenge both Illinois and U.S. Constitutions instead of addressing the causes of the state's budget deficits. Illinois public employees have earned their pension. Their pension is a constitutionally guaranteed contract.

That's why we have created a petition to The Illinois State House, The Illinois State Senate, and Governor Pat Quinn, which says:

"Illinois has a pension debt and revenue problem. Most legislators know this, and they also understand the concept of justice and what lawfulness demands: that people must keep their covenants with one another. No justice is accomplished when diminishing public employees' earned benefits and rights because of decades of legislators' irresponsibility, corruption and incompetence. Stop Illinois pension reform. It is immoral and illegal."

Will you sign this petition? Click here:

http://signon.org/sign/illinois-revenue-and?source=c.em.cp&r_by=1130041

Thanks!

Charter $chools Are $pecial!

Charter $chools Are $pecial - MLK Day 2013

Let’s turn logic on its head for a moment and review the Chicago Tribune’s recent editorial applause for the National Labor Relations Board’s finding that teachers in city charter schools like “CMSA (Chicago Science and Math Academy) cannot join a union.  They can – if they vote for it.  The decision means that the NLRB has recognized that charters are special, and their teachers are not constricted by the same rules, as, say, traditional Chicago Public Schools teachers are.”  You can find the entire article at  http://www.chicagotribune.com/news/opinion/editorials/ct-edit-charters-0121-jm-20130121,0,190687.story.

The editorial also praises the recent decision in its likely draw of additional charters to Chicago as well as the privatized demonstration that “with dedicated teachers and the right atmosphere, many charters show that any student can earn.”  For the Chicago Tribune, these necessary components are always found wanting in public schools, especially those many operating on limited funds, crumbling infrastructure, and lack of curriculum.  Something they choose to overlook. Adding more insult, the editorial suggests that “dedicated teachers” are not likely to be found in the public setting.  “All of that flexibility is a direct challenge to the delineated-by-contract, homogenized, command-and-control system preferred by most teachers union leaders.”  Private, good; public, bad.  

If you’d like background on the origin of this battle to even suggest unionization at CMSA, and the repercussions for the poor educator who was so bold as to request the possibility, you might turn to an earlier blog:

http://pension-vocabulary.blogspot.com/2012/12/reprise-charter-schools.html

If you are wondering about the advantages of “flexibility in a private market to make kids learn more,” read on.

"If you don’t like it – you can leave.”  - (a description of CEO Milkie’s and Mayor Emanuel’s response to questions regarding discipline policies at Noble Street Network School) – Jasmine Sarmiento, Voices of Youth in Chicago Educations.

“Noble is forcing low-income parents to choose between paying the rent and keeping their child in school. This is a tax on Chicago’s Black and Latino families, and it’s wrong..”  -  Donna Moore, parent of a student in Noble Network Schools.

Charter School Discipline (…or...How to take out the trash, and look real good)

Back in the day, I mean way back in the day, students actually got to determine their own form of discipline – a long piece of green hickory branch usually cut by the very student about to be switched.  This was considered a vast improvement in exchange for the cane used during the 17^th and 18^th centuries.  Ah, progress. 

After the mid-nineteenth century, continued disciplinary progress for public students included the paddle, in my own case, hung in plain sight above the principal’s office desk as a reminder of his overt ability to dispense justice in the form of extreme pain.  But I was just one of many south side kids being “taught” and civilized in a continuing grand experiment on a national level.

Before all of us, even unto the mid 1850’s, education in America was provided primarily to the wealthy, and the overriding sentiment was that the poor were both uneducable and unworthy any attempts at education.  It wasn’t until 1852 that Horace Mann, then Secretary of State for Massachusetts, urged all states to provide education to all students, creating what he hoped would be the great equalizer and the ultimate disappearance of poverty.   

Later, the efforts of modernists like Phillipp Emanuel von Fellenberg and Francis Parker (1850’s) promoted concepts that remain current: “modern behavioral modification methods should attempt to address the underlying reasons or motivations for student misbehavior and tailor consequences to fit the (particular) transgression.  School administrators should seek to encourage a positive association with school along with socially acceptable behavior” (www.pbs.org/kcet/publicschool/evolving_classroom/discipline.html). In essence, these movements suggested that learning was best accomplished with support, encouragement and kindness.  This was quite the opposite of discipline for being incorrect in answer or deportment.  Remember that word, deportment.

In the early 1900’s, as schooling became mandatory for all American youngsters, teachers found themselves stepping further and further into the roles of parents (in loco parentis), and “one value attached to this development asserted that while adults should be punished for their crimes, children should be rehabilitated for theirs, thus formalizing a beginning to the separation between juvenile misconduct and suffering as its remedy” (www.education.uslegal.com/discipline-and-punishment/).

Augmenting these modifications of the kinds of discipline painfully dished out in the working houses and boarding schools of the past, the 20^th century educator awakened to the concept that education was more than simply transfer; instead, with the assistance of forward thinkers like Rosenblatt, Berne, Spock, etc., psycho-social arguments promoted the student’s own involvement in a transactional paradigm of learning.   In short, teachers and educators moved way from the traditional belief that students learn best by rote and by sitting demurely in linear rows at rigid attention; quite the opposite, best practice now held to a more personalized and interactive learning/teaching construct.

Enter NOBLE STREET – Stage Far Right. 

The Noble Network of Charter Schools, which runs 10 city high schools and yearns for more after recent school closings, has found an entirely new, novel method of exacting discipline for student “misbehavior.”  This is the same network of schools that Mayor Rahm Emanuel praised for having the “secret sauce” for improving students’ scores, behavior, and success rates.  It would appear that the secret sauce of which the Mayor and Superintendent Brizard crow is in great part actually a monetary disciplinary fee that has raised nearly $400,000 this year for Noble Street, left parents foundering to scrape together fines that are imposed upon them for their own student’s deportment, and has caused the flight of nearly 13% of students from the Noble Street charter schools back into the public system from whence they came – seeking opportunity and assistance to improve their own lots in life and finding failure for disciplinarily high expectations – monetarily?

In fact, according to the Chicago Tribune (Ahmed-Ullah, Noreen.  Protests targets charter discipline fees. Chicago Tribune.  14 Feb. 2012), the loss of students from the Noble Network schools to other public districts has increased from 211 students in 2010 to 473 students in 2011.  At the same time, CEO Michael Milkie will point glowingly at the Noble Networks improved graduation rates, not surprisingly – from 78.8% in 2010 to 86.2% in 2011.  And CEO Mr. Milkie, who earns an annual salary over $200,000, should be proud of his enterprise’s increased revenue stream.  Noble Street has received almost $400,000 in disciplinary fees since the 2008-2009 school year (Ahmed-Ullah).  George M. Schmidt of Substance News reports “the charter company is profiting to the tune of some $200,000 per year from a disciplinary code that can only be called predatory” (www.substancenews.net/articles.php?page=3055).  

Following the kind of schema found in the factory/transference models of business and schools of the early 1900’s, Noble Street has implemented the “SMART” disciplinary code.  Here is what SMART’s acronym entails:

S = Sit up straight and be ready to learn.

M= Make eye contact when addressed.

A= Articulate in standard English and speak in proper volume.

R= Respond appropriately.

T= Track the speaker.

Each of these misdemeanors comes with a fine of $5 or more.  In fact, infractions include an unbelievably long list of potential infractions not necessarily spelled out – chewing gum, carrying “chips,” forgetting your belt, tardiness, carrying a marking pen, having an energy drink, making a noise with a pen, etc.  Each infraction (and others) will cost a student $5.00 or more (Rossi, Rosalind.  School’s discipline: you act up you pay up. Chicago Sun Times.  14 Feb. 2012). 

By the way, if a student is having a bad day – or time of it – 12 detentions/infractions or more will result in a $140 fine (they call it a fee) to attend an obligatory class on “behavior.”  Additional detentions will result in an additional discipline class for an additional $140.  Any student (more likely their family) who cannot pay will be held back from moving on to the next class – regardless of his or her grades.  Please keep in mind that even though Noble Street schools are funded by wealthy benefactors like Penny Pritzker, nearly 90% of the families are low-income (Schmidt, George), and cannot afford the mounting fees for students who are having difficulty adapting to the “SMART” model. 

Unlike the public system, Noble is allowed tougher disciplinary policies than the CPU because it is a charter – remember our earlier changing characterizations of public vs. private when it came to our model Chicago Math and Science Academy (see Vocabulary – Feb 19 & 26).  Meanwhile, CEO Mr. Milkie affirms that SMART and the other “disciplinary policies at NOBLE promote basic, common sense citizenship things, which you know teenagers need” (Golab, Art.  www.substancenews.net/articles.php?page=3055)

On the national level, school chief Arne Duncan also touts Milkie’s Noble Street agenda and, along with Pritzkers and other wealthy benefactors, endorses the programs used there:  “’ We’re dramatically changing the opportunity structure,’ Duncan told Chicago a few weeks before leaving his CPS post to become the U.S. secretary of education. ‘We have tried to make this [city] a mecca for people who want to make change in public education ‘” (Rodkin, Dennis. Charting a new course. Chicago Magazine.com.  29 Feb. 2012).