Sunday, January 27, 2013

Liar's Dice - Signed the Petition Yet?

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

NounLiar’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 11th 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.

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.

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…


Glen Brown

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