We Will Remember. One Year Later.

“And we know we can’t do this by ourselves.  It comes as a shock at a certain point where you realize, no matter how much you love these kids, you can’t do it by yourself.  That this job of keeping our children safe, and teaching them well, is something we can only do together, with the help of friends and neighbors, the help of a community, and the help of a nation.  And in that way, we come to realize that we bear a responsibility for every child because we’re counting on everybody else to help look after ours; that we’re all parents; that they’re all our children.” – from President Obama’s address to the people of Newtown, CT, in 2012.

In loco parentis

Latin: In loco parentis literally means “in the place of the parent.”  In loco parentis is a legal concept or doctrine, which places the responsibility or duties of parenting upon an individual (the teacher in an educational setting) without the formal adoption of a child.  The assumption of such duties in education reaches back to the establishment of orphanages and vocational schools, where students not only enrolled but were also considered wards.  The Cheadle Hulme School in Britain still displays the “in loco parentis” under its formal escutcheon.  The school was originally founded in the  mid-19^th Century by a group of concerned businessmen who named it The Manchester Warehousemen and Clerks’ Orphan School.   Since then, the legal term has become a cornerstone of the legal, moral and trusting relationship between educator and student. 

Beyond the required duties found often in a District’s teacher job descriptions – “to file reports in timely manner, keep accurate attendance records, share confidential grading information with parents in judicious fashion, and adhere to all policies set forth by the state and Board of Education”– those entering the profession often find themselves something quite more. 

Any teacher might also add just a few more in this incomplete list.

Delivering the almost-perfect lesson, sharing a smile, modeling good behavior, assisting in comprehending a sticky problem, solving a sudden social stumble, in some cases providing a nutritious meal, finding a new friend, preventing bullying, notifying an unknowing parent, clarifying an earlier explanation, reprimanding blatant inappropriateness, reading a great story, teaching dynamically, wiping an occasional tear, blowing a runny nose, finding some lost assignment, preparing for a chapter test, touching up a dropped project, understanding what we’ve learned or accomplished, recording (physical, intellectual, or other) growth, laughing out loud, smiling knowingly, giving serious directives, sharing the goal to improve, inspiring  the entire group, rallying the defeated, telling a small joke, practicing empathy, communicating truth, pushing the lethargic, encouraging the industrious, assessing their understanding, emboldening the shyly curious, releasing the chaos of creativity, unveiling resourcefulness, containing a confidence carefully, illuminating the self, celebrating the small steps, awarding noteworthy accomplishment, fighting injustices, providing for absent materials, capturing potentiality, mediating a conflict, keeping those falling behind alongside, meeting after classes, meeting before classes, tutoring to give confidence, coaching a student to believe in one’s self, calling the sick at home, reacting enthusiastically, pretending enthusiasm when necessary, decorating the room, celebrating the holidays, drafting an essay, crafting a thought into a sentence, exhibiting shared trust, muddling through a theorem, applying an earlier formula,  sometimes being silly, acknowledging individuality, generating theses, sounding out a word, giving hope, and making believe. 

In honor of the 20 children, 6 educators, and 2 adults, lost on Friday, December 14, 2012, at Sandy Hook Elementary School and Newtown, Connecticut.  We will remember.

Representative Robert Martwick: 19th District

A Freshman and Ethical Representative: Robert Martwick of the 19^th District

Various legislators’ justifications and rationalizations for their positive vote on Madigan’s new version of SB1 have been piling up in my incoming mail like loose debris on a west-Texas fence line.  Are you getting them too? 

Most of mine begin with “it was a tough choice” or “one of the hardest decisions in my life.” 

Sitting here at the conclusion of their ends-justifies-the-means frenzy on Black Tuesday, we can certainly agree.  On the other hand, “tough” may describe their December 3rd position, but it will quite possibly assure more than a singular moment for many other public sector working families.  Even years of tough or desperate choices...

Of course, the SB1 legislators will always have the Tribune and the Civic Federation to extol the action taken on Black Tuesday, but in keeping with my continued search for a new Representative or a new Senator, I’d like to keep a list of possible new faces places to reside in Illinois. 

Representative Martwick feels the need to “cover” for his fellows in the General Assembly in the official position statement he released earlier this week, but his own position is ethically refreshing.  For his complete communiqué, read to the end of his beginning statements.  Thanks.

Pension Reform Statement from Representative Martwick

Dear Neighbor,

On Tuesday, the Illinois legislature approved a plan to change the state's pension system.  This plan was passed by the narrowest of margins in both chambers and is expected to be signed into law by Governor Quinn.  I voted NO on this legislation.  Below, you will find my analysis of the bill and the explanation for my vote.  If you have any questions about how this legislation might affect you, please do not hesitate to contact me or my staff.

The legislature has been working non-stop to find a solution to the pension crisis.  Every single member of the legislature is committed to finding a solution that is constitutional, addresses the unfunded liability, and preserves the pension system and the benefits earned by employees.  Everyone recognizes that we must fix the problem.  However, there are fundamental disagreements about the right way to accomplish those goals.  While I thought this bill had some very positive aspects, it still fell far short of what was needed to accomplish the goals in a fair and respectful manner.

Why I voted NO:

1.  I gave my word that employees would have a seat at the table.

There is only one indisputable fact:  The employees did not create the problem.  This pension crisis was created by former governors and legislators who skipped payments and borrowed against the system.  Meanwhile, the employees made every single required contribution.  It is also indisputable that if the government had made the required payments, there would be no problem.  The system would be fully funded and sustainable.  Now the system is broken and the only way to fix it is through a combination of changes that include cuts to benefits that were promised to people who didn't cause the problem.  I have always maintained that these employees have earned a right to a seat at the negotiating table.  They should have, at the minimum, been included in discussions about the solution, since it is their money that will be taken to fix the problem.  When I ran for this office, I promised that I would demand that our friends and neighbors who are public employees, and who were without fault, be given the respect that they earned and a seat at the table. They were not.           

2.  The legislation was not afforded a democratic process.

This bill was crafted by a group of committed and hard working legislators with only the best of intentions.  Nonetheless, the details of this bill were not released to the rest of the legislature, or any party affected until less than 24 hours before we were scheduled to vote.  I love democracy and I believe that we have the best system of government in the world.  The only way to ensure that we can enjoy the benefits of democracy are to accept the issues that go along with it.  This bill is a massive bill that affects every single person in our state.  It affects employees, tax payers, students, seniors and businesses.  We should have been given more time to discuss and debate this bill.  That's the process and the responsibility and I cannot accept it being shirked.

3.  This bill stripped collective bargaining rights from public employees.  

I am a strong supporter of the rights of ALL Americans to collectively bargain for a better workplace.  I believe that this is a fundamental right afforded by democracy and it should not be diminished.  This bill would have stripped the rights of employees to collectively bargain pension benefits. Recently, scores of Illinoisans boarded buses and rode to Madison Wisconsin to stand alongside public employees whose collective bargaining rights were under attack by Gov. Scott Walker.  I cannot in good conscience vote for the same type of action here in Illinois.

4.  This legislation may cause great harm to the state university system.

A top tier state university system is critical to the future of our state.  More than simply a school, it provides both educational opportunities and a chance for a better life to all citizens of Illinois.  It is also an economic engine that brings enormous amounts of research and development dollars to our state economy.  Professor Jeffrey Brown is a University of Illinois economist who received his PhD from MIT.  He is one of the very brightest minds and most respected scholars on the topics of pension administration.  Basically, he knows more about pension systems than ANYONE.  He stated publicly that this bill will make it nearly impossible for the University of Illinois to attract and retain top professors and researchers to the school.  The end result will be a profound diminishment of the university's ranking amongst the nations best schools.  That means a lesser education for our children, which means fewer opportunities for them to compete with college graduates from other states.  Professor Brown offered a plan that he believed would have secured the pension systems without gutting the university.  Yet, despite the fact that he is clearly one of the brightest minds on this subject, his plan was very quickly dismissed.  

http://us3.campaign-archive2.com/?u=4f23ead03353ef551cc5c5969&id=74319187bc&e=e470712a24

I Wish I Had a Senator like Linda Holmes

I Wish I had a Senator like Linda Holmes.

When it came to the influence of Madigan and SB1, my Representative Monique Davis fell quickly into line with all the others seeking approval and whatever else from the Speaker.  I figured she would.  She did the same thing on the early incarnation of SB1.  They found the button that pushed my one-time-warrior-against-SB7, and she turned like a popover in a hot oven. 

I figured more from my Senator Emil Jones III.  We’ve had photo-ops and friendly meetings where he informed me that he was a career Senator, not supported by a law firm like those other guys, etc.  He promised he’d never destroy the pension of hard working public sector workers because he was one of us…then he caved like a sand castle.  What a disappointment. 

So, even though I am nowhere near Aurora, I am taking Senator Linda Holmes as my honorary Senator from Illinois.  She’s my new superhero.  I will send her money, flowers, and kudos, not because she did anything spectacular.  She spoke truth…and I guess that is spectacular and unusual in Springfield.

Here is what this good Senator had to say when given the chance before the vote of SB1 On Black Tuesday.

"I think this is a very sad day here.  I'm very sorry once again to be standing here, embarrassed and saddened by what we here as a body are talking about doing.  In 2010, I didn't think we'd be on the floor discussing this.  The reason why was that in the spring of 2010, we were brought a bill that reformed pensions.  We now call that Tier Two. 

We looked at that and there were pretty drastic deductions for new hires, and at that point, I think some of us raised concerns about that; however, we were told it's new hires - they have the option to plan for their retirement.  They have the option to make changes.  We are not touching current employees or retirees.  We promise we're not doing that. 

Well, guess what.  Today, we're looking at breaking that promise because we're impacting current retirees and those that are currently in the system.  I look at this from a very simple perspective.  We can talk the numbers, we can talk anything we want here, but let's get down to what the real reasons are.  For one thing, this is a budgetary problem; this is not a pension problem. 

What we are doing is quite simply wrong.  I ran a remodeling company for twenty years.  Every job we did, we did based on a contract.  That contract was signed as to what work we would be performing.  It was signed by the customer, which said what they were going to be paying for that work.  When the job was completed, I could go to the customer and say, 'Is everything we say in the contract been performed and been performed to your satisfaction?'  They say, 'Yes' ; I say 'fine.'  'Now, you've been making your payments throughout, and it is time for the final payment of $15,000 on your dream kitchen - you know, the kitchen with the granite countertops and the stainless appliances? This is everything you wanted, right?'  They say, 'Absolutely, and I know I owe you $15,000 and I know that's in the contract, but I'm only going to pay you $5000.' 

What am I as a business person going to do?  Am I going to take them to court for breach of contract?  Absolutely!  We signed an agreement. How is this - what we are doing - any different?  I don't know how there is one person here with any understanding of business, with any understanding of contracts, who can sit there and say what we are doing is right. 

THIS IS WRONG! 

And we're just going to throw this out there because we don't know what else to do, so we're going to let the Justices decide?  We as a body of lawmakers can't look at this and say, 'This is inherently WRONG?  This is inherently UNFAIR?  THIS IS A PROMISE BROKEN?' 

This is actually no different than a thief coming into your house at night and stealing your valuables.  The difference is this isn't a thief coming in the night.  This is your elected representatives coming to you, looking you straight in the eye, and saying 'I'm going to take away your future.'  That is more than a promise broken.  That is reprehensible. 

I urge a NO vote."

You might want Senator Holmes to be your Senator too. 

Or, you might want to call and thank her for her resistance to the lemming like procession that ran public sector workers off the cliff last Tuesday.  She’s good people and deserves your call of gratitude.

District Office:  630-801- 8985

Springfield Office: 217-782-0422

Email?   http://www.senatorholmes.com/index.php/contact-us

Considering Consideration: and other legal implications SB1

Considering Consideration: and other legal implications

Preparing for a court battle means anticipating just where your opponent will argue the case they present before a judge as well as putting forth your own best case.  Of course, all that time, you must remember they are working to blunt the reasoning you think best.  A good legal team knows early on that it’s always 99.9% perspiration and .1% inspiration.  So it will likely be with the pension court case in Illinois.

Remember also, ambiguity is the lifeblood of these suits.  The sentence “Starving lions can be dangerous” comes to mind when pondering the implications of an upcoming suit over the recently enacted “pension reform-theft” in Illinois.  Does the previous sentence mean possibly injurious to the poor lions?  Or certainly fatal to anyone starving them?

Article XIII, Section 5. Illinois Pension Clause:  Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.

Even Article XIII, Section 5, which appears transparently clear to a retired pensioner like myself, will be broken like shards into a kaleidoscope of intended meanings by the various lawyers trying to present their unique perspectives/interpretations….and of course win.  Parsing the meanings of the clause will be an integral part of the arguments against and for the bill Governor Quinn signed on Thursday. 

Does “membership” mean active workers or only those who have already retired?  Does an “enforceable contractual relationship” allow for adjustments to be made given an argument of statewide fiscal crisis?  Or a case that changes are necessary to keep the system from imploding?  Does “diminish or impair” prevent any perceived negative alteration to a benefit expectation after employment, retirement, by collective bargaining unit or by individual? 

This litigation may take far more time than anyone might suppose.  But, we can expect the court and its competing lawyers to debate carefully the concept of consideration in contractual law when it comes to SB1 and its numerous provisions for current and future workers as well as retirees.  (For a review of those changes, please see Glen Brown’s blogs(teacher/poet/musician glen brown).

Consideration:  (n)  in law, something of value given by both parties to a contract that induces them to enter into the agreement to exchange mutual performances (West’s Encyclopedia of American Law).

According to the Tribune, Speaker Madigan ticked off several reasons why he feels the bill (now law) meets the question of consideration: “Workers would contribute 1 percentage point less toward their retirement, the state would kick in more money to better fund pensions, the retirement system could go to the Illinois Supreme Court if the lawmakers failed to make required payments, and some workers could choose a 401(k)-style option” (5 December 2013).  In other words, the Speaker feels that any offer of improvement (on his part and from his perspective) is enough to satisfy consideration.

Senate Leader Cullerton and his legal counsel Eric Madiar may not be so sure.  And their concern may be justified.

In the Speaker’s analysis, he proposes the court accept what should be deemed a unilateral contract, one lacking the necessary intent between both parties necessary to reach what most courts deem a suitable level of consideration.  In simple (English teacher) language, the Speaker’s law acts impossibly for both sides at once – both the General Assembly and the unions – by delivering and exchanging some increased benefits and some impairments as trade offs, but none of it with any agreement or promise by the other party in exchange.

For example, instead of exchanging gifts valued at $5 during the office party this year, as we have all agreed to every year, Boss Mike informs you he doesn’t want your present worth $5, but instead is going to give you a picture of himself (he paid nearly $10 for it) and he’s going to take ten minutes out of your lunch break.  That’s a unilateral offer of contract.  Once you perform your part of the agreement(?), placing his picture on your wall and skipping your dessert, you’ve have achieved consideration under the law. 

Are you starting to comprehend the bristling response of the IRTA and WeAreOne?

On the other hand, a bi-lateral contract, like those historically binding benefits and contributions for Illinois public sector workers, are agreements binding both parties the minute the parties exchanged promises, as each promise was deemed sufficient or of valuable consideration in itself. 

For decades after the drafting and adopting of Article XIII, Section 5 in the 1970 Illinois Constitution, consideration has been considered “valuable.”  That is, a thing of value parted with, or a new obligation assumed, at the time of obtaining the thing, which is substantial compensation for that which is obtained thereby.  It is also simply called ‘value’” (Black’s Law Dictionary).

Exchanges were agreed to and settled on for the Early Retirement Option, death benefits, and even the COLA; but those were all bilateral contracts consisting of mutual consent in the establishment of a valuable consideration(s). 

It appears to me, SB1 does not meet the acceptable requirements for consideration.