Monday, May 25, 2015

Unfunded Mandates: The Turn Around Agenda of Bruce Rauner

Unfunded Mandates: The Turnaround Agenda of Bruce Rauner

My wealthy friend Ernesto and I met for lunch the other afternoon at a local eatery, which offered a wide variety of wonderfully exotic Mediterranean samplings. 

The place was loud and bustling.  “Try the baba ganoush,” Ernesto loudly proffered, sliding the plate across the table to me, as I sipped a luscious mint tea.

“What a weird name.  Thanks,” I replied.  “Very good!”

“And how are you, my friend, now that our new Governor has started holding the feet of your corrupt Democratic legislators to the fire as they face a long summer of being forced to actually work?  This is a man who knows how to get things done!”

“I think the vote’s still out on that one, Ernesto.  Bruce may have warned his wife that he would ‘drive ‘em crazy’ in Springfield, but it occurs to me it is working the other way ‘round.  In fact, just the other day, I read that when Bruce suggested he’d serve only two terms, his wife retorted she’d be happy if he’d served only one.  That might be a fait accompli.

“You’re out of your elements in politics as well as dining, my friend.  This Governor’s Turnaround Agenda will elevate our state to significance again.”

“To me, it seems a catalog of complaints without any solutions – except for each community to embrace them all blindly?  I’m sorry, but I’m not so sure, Ernesto.  The bullet points all seem so nebulous.  What’s the issue with unfunded mandates or even the right to…”

“Unfunded mandates, my sadly na├»ve friend, are making you and I pay more for our dinners right now.  Do you see those mandatory signs that announce “no smoking” at every entrance? The smoking ashtrays outside in a small, canopied courtyard next to us?  The warnings that smoking is not allowed in the washrooms?”   You and I are paying for those signs, those ashtray stands, and that large heated canopy tent for smokers.”


“Unfunded mandates become an additional cost borne by the businesses because the state legislature decides to force such establishments not only to ban smoking but also notify the public it is disallowed.  And the local business or government has to bear those costs, my friend.  Now, let’s expand that to all the requirements forced upon us on even local levels, from education to other facets of business.  Can you begin to comprehend the unfairness and cost of it all?”

“Yes, of course, Ernesto, but in this case, let’s say, the business in which we enjoy our lunch has to endure an extra cost for protecting you and me from injury by exposure to second hand smoke.  Isn’t that an acceptable burden of operating commerce safely for those who come here?” 

Ernesto smiled.  “But our new Governor has identified over 280 unnecessary unfunded mandates that are being forced upon the local communities and school districts.  We need to stop that, so that you and I, and our families need not pay those costs for ridiculous enacted requirements determined by the General Assembly.” 

“Indeed, Ernesto, a talking point of the Turnaround Agenda boldly identifies that  ‘more than 280 unfunded mandates have been imposed on communities across Illinois, costing $billions.’  But, Ernesto, I have not been able to find any one specific example of one of those 280 unfunded mandates.  Have you?

“No, but…they will be provided in time…”

“And I even reached out unsuccessfully to the Office of Lieutenant Governor Evelyn Sanguinetti, who is charged with the task to shrink unfunded mandates in Illinois…, and later the office of State Senator Linda Holmes  who sits upon the “Local Government” committee and is a part of the Task Force. Her office has not received any documentation of the 280 (or even one) unfunded mandate that meets this nefarious characterization of unfair and punitive outcomes.”

“Yes, I know about this Task Force, and they are preparing to bring forth the necessary problems and solutions.  They have until December 2015.”

“Sounds familiar, my friend.  And the Office of Sanguinetti assures its coming to some resolution.  But the last time I looked at a list of unfunded mandates for Illinois, one which was made available in 2011, I had a hard time finding too much that was over the top….crazy…unfair…unnecessary…or extravagant.”

“But it was too much…I mean, monetarily.”

“Yes, it was extensive, Ernesto.  Nearly 120 pages with almost an average of 15 mandates per page ( for results/related documents/full list of mandates for bfr commission.pdf ), but the list was interesting in its purpose as well as its scope.  Not only were local educational mandates required to instruct about the Holocaust or to provide in-services against bullying, but also services for domestic violence, witness protection (from gangs too), disposal of dead animals, disposal of dead people, lead poisoning, groundwater protection, homeless prevention, public pension regulations per city/village, public waterway safety, asbestos abatement, mosquito abatement, child labor, food inspection, ….shall I go on?” 

 Just too many laws, my friend…”

 “So which of the 280 would you like to dispose of…or is this just a willy-nilly resolution which allows a local government to ignore the one they want out of well over 120 pages with protective services listed in most cases 20 per page?”

“Why should we listen to Springfield?”

“Well, I mean what if one local school district or its people decide they’ll ignore Black History month…or another says they don’t have time to teach about the Holocaust, or another says that firearm training for its police officers impinges on its ability to do something else with money. 

“Do you really want a small group of locals determining what they will do or not?  Of course, we’ll pay it back in some other method, won’t we?  If you decide not to provide training for your police officers, will we have another Baltimore or worse?  If we drop the required steroid prevention programs, will our children be better off?  If we decide not to require districts to test for autism, won’t we pay another cost later for that?” 

“You exaggerate this issue, my friend.”

“I probably do, Ernesto.  We liberals are like that.  On the other hand, this canopied tent through those flaps over there is an adaptation to a mandate, isn’t it?  Law does not require this.  In fact, this business man’s answer even flaunts the law.

“So…we still need to prevent it at all costs. Government has the power – and I would argue the obligation – to protect us from certain dangers, don’t you think?

“Who are they to tell us …anything?”

“They're us, aren't they? So, Ernesto, what’s in your Baba Gannoush?”

Wednesday, May 13, 2015

We're Back! Less than 5 days After ILSC Ruling, the Thieves Return.

We’re Back!   

An active teacher/friend and even retired family members recently asked several of us bloggers if the latest plan for pension reform by Senate Leader John Cullerton was something about which they should worry.  The plan was a response by Cullerton to the five-day-old decision by the Illinois Supreme Court strictly striking down the earlier “Pension Reform Act of 2013.  The plan, as explained below by my fellow blogger Glen Brown, serves up a new low in “consideration.” 

Another active teacher responded that his worry was that IEA might consider making a deal?  I quickly wrote him back:

The IEA seems always willing to deal…but the ILSC has made it abundantly clear - even to them and Cullerton "that benefits can be added and a payment of some kind can be made for the addition; that is called consideration."  Those are paraphrase quotes.  The IEA couldn't begin to entertain Cullerton's latest sweven (visionary pipe dream).  With Chief Counsel Madiar gone, he's making up this stuff.  Even the IEA has its negotiating hands tied for this one.  Offers of a willingness to be at the table might be as earnest as my pleasantries to an oral surgeon.

And while Cullerton talks about this latest mathematical square of the hypotenuse, we've got Rep. Ives and others pushing for an amendment to the Pension Protection Clause, and traveling Governor Rauner trying to find a new way to remove the only steady funding source for pensions without comprehending that the state would still be on the hook for all of us retired and actives until we die.  They'll be selling a hell of a lot more than the Thompson Center.  

Cullerton's blowing smoke.  But, as Glen Brown warned, they'll blow smoke and even fume smoke until they realize they're going to have to turn to revenue side answers.  This may take years with the way they avoid any real and honest way to deal with "their" own mess.   

And the very last choice they'll make in this flat-tax backward state will be to levy the rich.  They'll suck the blood out of poor districts like Chicago Heights with a pension cost shift to the local districts; they'll play with a possible tax on services (and then realize how many of them have service businesses that would be affected); they'll allow those marginalized and without advocacy like the poor/homeless/mentally ill to die on the streets without succor; they'll design some new scheme to avoid making an amortized payment for the unfunded liability which would provide some stability for the state; they'll veer away at 180 degrees from any look at a transaction tax; in short, they would be Medea to their own children before they'd actively acknowledge their own mess, their own making.  

They are hopelessly liars and thieves.  

Other than that…the weekend was a nice respite.  

See my friend and good blogger’s report below, or go directly to Glen’s site:

Senate President John Cullerton presented his updated pension reform plan in the Illinois General Assembly today aimed at circumventing the Pension Protection Clause

So what can we expect from the pension thieves of the Illinois General Assembly just four days after the Illinois Supreme Court Ruling? Is it all just poppycock? Here is the first of many blustery attacks on public employees and retirees to come.

“Lawmakers returned to the Capitol on Tuesday [May 12] facing renewed pressure to overhaul the state's employee pension system after the Illinois Supreme Court struck down a law aimed at sharply curbing benefits, with Senate President John Cullerton proposing an updated version of a plan he floated two years ago. 

[The We Are One Coalition of Unions (the IEA, IFT, Illinois AFL-CIO, AFSCME, et al.) mutually assented to Cullerton's diminishment of our pensions on May 6, 2013. There should never have been any negotiation of our constitutionally-guaranteed benefits and rights with the Illinois General Assembly. Only the Illinois Retired Teachers Association disagreed and hired Tabet, DiVito & Rothstein LLC to defend our constitutional guarantees at that time].

“While details are still being worked out, Cullerton's plan amounts to giving government workers a choice between keeping more generous yearly cost-of-living increases or continuing to count pay raises in calculating their retirement benefits… 

“Cullerton's pension plan is aimed at working around a clause in the Illinois Constitution that says once someone is in a retirement system, they've entered into ‘an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.’ 

“Justices appeared to offer little in the way of a path forward other than requiring the state to pay up, but Cullerton contends the ruling left open the possibility for changes to be made based on a theory in contract law called ‘consideration.’ Under that theory, Cullerton says, benefits can be scaled back, but only if workers agree to the changes and are given something in return.  

[Simply stated, “Consideration is when a claimant promises something in exchange for the defendant’s promise, [or] the inducement to a contract, something of value given in return for a performance or a promise of performance by another, for the purpose of forming a contract…” (Law Dictionary). “It is well settled that a contract, once made, must be performed according to its terms, and that any modification of those terms must be made by mutual assent and for consideration” (Ross v. May Co., 377 Ill. App. 3d 387, 389 (2007))]. 

“As such, the plan Cullerton floated Tuesday calls for giving employees a choice about their retirement benefits. Under the first scenario, a worker could choose to not have future pay increases factored into their pensions. In exchange, they would receive an annual 3 percent compounded cost-of-living pay increase. If they chose to count pay raises toward their pensions, workers would receive lower annual cost-of-living increases that are not compounded over time.

“It's a revamped version of a Cullerton proposal that passed the Senate in 2013 with union support that would have allowed employees and retirees to choose between compounded cost-of-living increases or health care benefits. That measure was never called for a vote in the House, as critics argued it would save about a third of the more sweeping proposal that ultimately became law but was struck down last week…”

For the complete story, click here.

Friday, May 8, 2015

From Glen Brown: A Moral Assertion!

From Glen Brown:  A Moral Assertion!

“It was always a legal and moral issue.

“[O]f fundamental importance [is] the primacy of the Illinois Constitution over considerations of political expediency” (Brief of ISEA, RSEA, Heaton and Harrison, Plaintiffs-Appellees, 2).

Today we celebrate a legal and moral victory. We can believe in the Illinois Constitution for protection and believe in the sanctity of contracts once again. We can believe the Pension Protection Clause “confers additional, independent protection for public retirement benefits separate and distinct from the protection afforded by the Contract Clause” (Brief of ISEA, RSEA, Heaton and Harrison, Plaintiffs-Appellees, 22). We can believe the Pension Protection Clause decisively has no reference to “subject to police power.” We can believe Illinois legislators “may not rewrite the Pension Protection Clause to include restrictions and limitations that the drafters did not express and the citizens of Illinois did not approve” (32). We can believe “no reserved power allows a state legislature to sidestep the plain prohibitions set out in its own constitution” (41) at least for now.

As readers of my blog know, I have stated many times to possess a right to a promised deferred compensation, such as a pension, is to assert a legitimate claim with all Illinois legislators to protect that right. There are no rights without obligations. They are mutually dependent.

Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents. Senate Bill 1 was, indeed, a foul insensitive attack on public employees’ and retirees’ rights to constitutionally-guaranteed benefits.

I wrote four years ago that challenges lie ahead for current public employees, retirees and their families, and for every citizen of Illinois. These facts have not changed: there are liars and thieves among us who will continue to choose which contracts to honor and which ones to violate in the future.

We know they will attempt another legislative thievery of our benefits and rights again. Thus, we must continue our vigilance. Most importantly, we must continue our resistance against the dishonest politicians and their mendacious accomplices, such as members of the Civic Committee of the Commercial Club of Chicago, the Civic Federation, Illinois Policy Institute, and their ilk.

We know corrupt legislators will pass laws for their own advantage. We should recall that despite their pledges, the legislators’ criteria for justice are their considerations for what is expedient for them—their re-elections to remain in power and wealth.

We must never become complacent in our belief that justice exists for those who simply “fight the good fight”; nor should we become indifferent to political power and what exorbitant wealth can buy: a “democracy on the auction block, subject to the highest bidder” (Bill Moyers).  

It will still be up to us to protect what we have earned for our life’s labor by opposing the next attacks from the Civic Committee, the Civic Federation, Illinois Policy Institute, and their purchased media.  We must continue to defend our dignity with stubborn resolve. 

We are intrinsically bound to one another in this regard.  As Martin Luther King eloquently stated, “We are caught in an inescapable network of mutuality, tied in a single garment of destiny.” We must urge our unions’ leadership to be absolutely prepared to defend our pension benefits and rights without apologies, without concessions, and without compromise.  

With Sincere Gratitude:

Thank you Gino L. DiVito, John M. Fitzgerald, Brian C. Haussmann, and Uri B. Abt from Tabet DiVito & Rothstein LLC; thank you John E. Stevens, John T. Shapiro, Michael D. Freeborn, and Dylan Smith from Freeborn & Peters LLP; thank you Michael T. Reagan from the Law Offices of Michael T. Reagan; thank you Donald M. Craven from Donald M. Craven, P.C.; and thank you Aaron B. Maduff, Walker R. Lawrence, and John D. Carr from Maduff Maduff LLC – Attorneys for Plaintiffs-Appellees!

Thank you Honorable John W. Belz!

Thank you Illinois Supreme Court Justices who voted (7 -0) to uphold the Illinois Constitution! We are grateful for those Illinois Supreme Court justices who proved Michael Madigan’s arrogant prediction was wrong!

Thank you Illinois Retired Teachers Association, Illinois Federation of Teachers, Retired State Employees Association, Illinois State Employees Association Retirees, State Universities Annuitants Association, Illinois Education Association, and all of their membership who paid their dues!

Thank you Eric M. Madiar, former Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate!

Thank you Fred Klonsky, John Dillon, and Ken Previti, et al.!

Most importantly, thank you prescient Delegates Helen Kinney and Henry Green for jointly sponsoring the Pension Protection Clause proposal as an amendment to the proposed Legislative Article at the 1970 Illinois Constitution! Thank you Delegate James Kemp and the citizens of Illinois who ratified Article XIII, Section 5 of the Illinois Constitution 45 years ago!”


Glen Brown

For the entire finding of the IL Supreme Court: