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 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…
Sincerely,
Glen
Brown
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