Friday, May 27, 2016

That Disputed Concept Called “Consideration” in Illinois Public Pensions





From Amending Pension and Retirement Rights through “Consideration” (Posted August 10, 2012):

Simply stated, “Consideration is when a claimant promises something in exchange for the defendant’s promise.”

Consideration should have “value” that is fair to both sides. However, contracts supported by consideration are often one-sided, advantageous arrangements. We could imagine that any agreement with the Illinois General Assembly regarding “guaranteed” funding to the pension systems would not be a “valid” consideration for public employees, for example, because it would be in exchange for reductions of originally-vested benefits guaranteed by the Illinois Constitution.

What’s more, there is no question whether legislators will renege on a new promise made to public employees. The question is how soon it will happen. Legislators can rewrite or undo any bill they pass. A conversation with any representative will verify this incongruous reality. Any "Quid Pro Quo" guaranteed by legislators will inevitably become a "Failure of Consideration."

Take for instance that “Funding” public employees’ pensions would have to be written into the Illinois Pension Code (40 ILCS 5/) to be considered a “benefit” guaranteed by the state constitution. In this way, consideration would create a contractual cause of action for the full enforcement of that expectation – an irrevocable binding contract between the state (legislators) and public employees (or would it?). This will never occur, however, because House Speaker Michael Madigan and other legislators also want to shift the normal costs of the teachers’ retirement pension to local school districts and property taxpayers, and this proposal reveals rather obvious legislative intentions.


From Consideration, Senate Bill 1313 and Senate Bill 0001 (Posted March 7, 2013):

Consideration: “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).

According to National University of Singapore Professor Mindy Chen-Wishart, “The consideration doctrine is a moving target… Different [understandings] yield different [interpretations]… Each conception can be contradicted by another… Courts have considerable latitude in determining whether to find consideration (or not), and hence whether to enforce a promise (or not)… A contract supported by consideration can still be set aside for… misrepresentation, duress, or undue influence or its contents may be supplemented by implied terms or [be] partially invalidated because of unfairness. In these cases, the presence of serious inadequacy of consideration will usually be the major, although not the sole, factor… It would be highly undesirable to allow public officials to extract benefits in return for the performance of their existing legal duties” (Contract Law).

As stated by Professor of Law Claude D. Rohwer (Emeritus) and Professor of Law Anthony M. Skrocki (Emeritus), “Consider a promise by an employer to pay a retirement pension to an employee who has already worked for a company for 30 years… Under American law and the law of other common law systems, the question that must be answered is whether this promise to pay a pension [and COLA, health care…] was made as part of a bargain. A promise to pay a pension [and COLA, health care…] is supported by valid consideration if it is made as part of the employment contract. Thus, if the employee is required to work for a… period of time in exchange for the promised pension [COLA and health care], there is a bargain...” (Contracts in a Nutshell). 

Contracts supported by consideration are often one-sided, advantageous arrangements, however. In Illinois, we can imagine that any agreement with the General Assembly regarding a “guaranteed” funding to the pension systems, for example, would not be a “valid” consideration for public employees, especially since it would be in exchange for reductions of originally-vested benefits guaranteed by the Illinois and U.S. Constitutions.

What’s more, there is no question whether legislators will renege on any new promise made to public employees. The question is how soon it will happen. Legislators can rewrite or undo any bill they pass. The “funding” of the public employees’ pensions and offering of the health care option would have to be written into the Illinois Pension Code (40 ILCS 5/) to be considered “benefits” protected by the Illinois Constitution. In this way, consideration would create a contractual cause of action for the full enforcement of that expectation – an irrevocable binding contract between the state (legislators) and public employees. Both funding and health care assurances are quite doubtful.

From The Concept of “Consideration” in Illinois Senate Bill 1 (Posted January 3, 2014):

 

Concerning the Non-negotiated Reduced Contribution Rate:

Reducing the contribution rate for current teachers by one percent was not a consideration. It was not negotiated; moreover, modification of contract principles for retirees was also without consent. “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)).
 
Concerning the Non-guaranteed “Guaranteed Funding”:  

Contracts supported by consideration are often one-sided, advantageous arrangements. Any agreement with the Illinois General Assembly regarding “guaranteed” funding to the pension systems would not be a “valid” consideration for public employees because it would be in exchange for reductions of originally-vested benefits assured by the Illinois Constitution. 
Furthermore, there is no question that with the passage of Senate Bill 1, Illinois legislators have reneged on a contractual promise made to public employees and retirees based upon similar antedated court cases.

We already know that legislators can rewrite or undo any bill they pass. A conversation with any representative will verify this incongruous reality; consequently, any "Quid Pro Quo" (one thing in return for another) guaranteed by legislators can also become a "Failure of Consideration." 

Even if the funding of public employees’ pensions is written into the Illinois Pension Code (40 ILCS 5/) and considered a “benefit” guaranteed by the State Constitution, legislators can (and will) create another bill to challenge the language of the contract. 

According to Elaine Nekritz: “The so-called pension payment guarantee has wiggle room. If the state fails to make a pension payment, a retirement system could file action in the Illinois Supreme Court to compel the state to make the required payment. But if the state faces a crisis, it could simply vote to change what the required payment would be; [thus], effectively working around that guarantee.”

Despite what Nekritz believes, it has been ruled that “No principle of law permits [the Illinois General Assembly] to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem” (Jorgensen v. Blagojevich, 211 Ill. 2d 286, 316 (2004)). (Consider that House Speaker Michael Madigan and Senate President John Cullerton depended on case law when suing Governor Patrick Quinn for stopping their remuneration because they had not passed so-called "pension reform" at that time).

“Neither the legislature nor any executive or judicial officer may disregard the provisions of the constitution even in case of a great emergency” (People ex rel. Lyle v. City of Chicago, 360 Ill. 25, 29 (1935)).  Unless, of course, judges ignore case law.

Undeniably, “the consideration doctrine is a moving target, different [understandings will] yield different [interpretations]… Courts have considerable latitude in determining whether to find consideration (or not), and hence whether to enforce a promise (or not)… [Nonetheless], it would be highly undesirable to allow public officials to extract benefits in return for the performance of their existing legal duties” (National University of Singapore Professor Mindy Chen-Wishart, Contract Law). 

In Illinois, the Supreme Court “has consistently invalidated amendments to the Pension Code where the result is to diminish benefits” (McNamee v. State, 173 Ill. 2d 433, 445 (1996)). “Any alteration of the pension system amounts to a modification of an existing contract between the State (or one of its agencies) and all members of the pension system, whether employees or retirees. A member is contractually protected against a reduction in benefits” (Kuhlmann v. Board of Trustees of the Police Pension Fund of Maywood, 106 Ill. App. 3d 603, 608 (1st Dist. 1982)).

Let us remain confident the Supreme Court judges will uphold the Illinois and U.S. Constitutions as they have in the past; that these judges are not capable of illegal and immoral thievery like the political opportunists who voted for SB 1 (from Illinois Senate Bill 1, the So-called “Pension Reform”Bill (or Attempt to Break a Constitutional Contract with Public Employees and Retirees)).

For a prĂ©cis (Antedated Court Cases), Click Here. 

The aforementioned, predated court cases are from Fitzgerald, John M. and Katherine M. O’Brien. “Four Things Every Retired Teacher Should Know about the Pension Protection Clause of the Illinois Constitution.” Tabet, DiVito & Rothstein LLC. PowerPoint presentation. IRTA, 21 Oct 2013.


From Can the Unions Bargain Away Constitutionally-Guaranteed Benefits through Consideration? (Posted March 25, 2016):

Undeniably, “the consideration doctrine is a moving target, different [understandings will] yield different [interpretations]… Courts have considerable latitude in determining whether to find consideration (or not), and hence whether to enforce a promise (or not)… [Nonetheless], it would be highly undesirable to allow public officials to extract benefits in return for the performance of their existing legal duties” (National University of Singapore Professor Mindy Chen-Wishart, Contract Law).

In Illinois, the Supreme Court “has consistently invalidated amendments to the Pension Code where the result is to diminish benefits” (McNamee v. State, 173 Ill. 2d 433, 445 (1996)). “Any alteration of the pension system amounts to a modification of an existing contract between the State (or one of its agencies) and all members of the pension system, whether employees or retirees. A member is contractually protected against a reduction in benefits” (Kuhlmann v. Board of Trustees of the Police Pension Fund of Maywood, 106 Ill. App. 3d 603, 608 (1st Dist. 1982)).

Here are three more irrefutable arguments:

2014   Kanerva v. Weems
The Pension Protection Clause makes it “clear that if something qualifies as a benefit of the enforceable contractual relationship resulting from membership in one of the State’s pension or retirement systems, it cannot be diminished or impaired… [The State of Illinois or anyone else] 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... [P]ension benefits are insulated from diminishment or impairment by the General Assembly…” (Kanerva, 2014 IL 115811, 38, 41, 48).

2015   Doris Heaton, et al. v. Pat Quinn, in his capacity as Governor of the State of Illinois, et al.
“…The concerns of the delegates who drafted article XIII, section 5, and the citizens who ratified it have proven to be well founded. Even with the protections of that provision, the General Assembly has repeatedly attempted to find ways to circumvent its clear and unambiguous prohibition against the diminishment or impairment of the benefits of membership in public retirement systems. Public Act 98-599 is merely the latest assault in this ongoing political battle against public pension rights. As we noted earlier, through that legislation the General Assembly is attempting to do once again exactly what the people of Illinois, through article XIII, section 5, said it has no authority to do and must not do… The judgment of the circuit court declaring Public Act 98-599 to be unconstitutional and permanently enjoining its enforcement is affirmed.”

2015   MARY J. JONES et al., Appellees, v. MUNICIPAL EMPLOYEES’ ANNUITY AND BENEFIT FUND OF CHICAGO et al., Appellants.

“…In this case, it is undisputed that the unions were not acting as authorized agents within a collective bargaining process. Thus, we need not resolve whether the vote taken by union representatives as expressed in the Brandon affidavit bound members of the Funds in a collective bargaining process. Rather, we agree with the trial court that ‘these negotiations were no different than legislative advocacy on behalf of any interest group supporting collective interests to a lawmaking body.’ The individual members of the Funds have done nothing that could be said to have unequivocally assented to the new terms or to have ‘bargained away’ their constitutional rights. Accordingly, nothing in the legislative process that led to the enactment of the Act constituted a waiver of the Funds members’ constitutional rights under the pension protection clause… The judgment of the circuit court declaring Public Act 98-641 to be unconstitutional and permanently enjoining its enforcement is affirmed.”

“[Furthermore, consider that] in the context of the collective bargaining process for public employees, employees designate a particular union as their exclusive agent for collective bargaining negotiations. See 5 ILCS 315/6 (West 2014). The cases that defendants rely upon to support a bargained-for exchange argument involved agreements reached through the collective bargaining process. See Ballentine v. Koch, 674 N.E.2d 292, 296 (N.Y. Ct. App. 1996) (“[B]ecause plaintiffs designated the PBA as their agent for the collective bargaining negotiations at issue here and were thus bound by its actions taken on their behalf during the negotiation process [citation], the PBA’s waiver of the constitutional protections of [New York’s pension protection clause] is valid as to plaintiffs ***.”); Schacht v. City of New York, 346 N.E.2d 518, 519 (N.Y. Ct. App. 1976) (“Plaintiff, having designated the union to be her agent for collective bargaining purposes, is bound by agreements made by that union on her behalf”)…” (2015 MARY J. JONES et al., Appellees, v. MUNICIPAL EMPLOYEES’ ANNUITY AND BENEFIT FUND OF CHICAGO et al., Appellants): Thus, unions need ratification by its membership, retirees, and non-members for any consideration.

So can the Unions Bargain Away Constitutionally-Guaranteed Benefits through Consideration?  

The answer is NO. Retirees are not part of the collective bargaining process, only active employees are. The Illinois Supreme Court seems to suggest that a consideration supported by collective bargaining for current employees is a possibility, nonetheless. However, a legitimate consideration means not taking away an already existing constitutionally-guaranteed benefit!


Thursday, May 26, 2016

How Important Is a Philosophy Class in a School's Curriculum?



Dear Mr. Brown,

I am writing an article for the LION Newspaper because Philosophy has been cancelled for the 2016-2017 school year. I was wondering if you could answer some questions about it since you taught that class for so many years.

1.    How long did you teach the class for?
2.    As a former teacher of the class, what do you think students will lose as this class is taken away?
3.    Why should students be taking this class?
4.    Why should the class be kept?
5.    With the number of students who signed up for the class being close to the requirement, do you think there should have been more of a push to keep the class? Why?

Thank you in advance for your help with my article.

From,
Sheridan Spiess


Dear Sheridan,

I taught the philosophy class at Lyons Township High School for several years before I retired in 2009. I re-designed the course completely to reflect the history of western philosophy from the pre-Socratics to modern philosophers. My goal for the course was to introduce students to the study of interesting and relevant ideas and to offer a range of responses to such important questions as “Is there a difference between what we claim to believe and what we claim to know?” “What is the nature of the external world?” and “What is knowledge?”

Some of the many philosophers discussed in my philosophy class were Plato, Aristotle, Descartes, Hume, Kant, Schopenhauer, Camus and Wittgenstein. The course covered such topics as determinism, Existentialism, the problem of evil, the nature and existence of reality, and arguments in the philosophy of religion and ethics.

If the course is dropped from LT's curriculum, students will miss an opportunity to acquire significant skills that are taught distinctively in a philosophy class. Why a philosophy class should be taught is evident in the very objectives of the course itself: for instance, students of philosophy demonstrate the ability to recognize the assumptions and implications of specific, complex philosophical positions not found in other classes; students show the ability to analyze and synthesize readings and discussions of diverse and multifaceted, speculative ideas.

Philosophy students reveal an understanding of formal and informal aspects of logic in both writing and discussions. Philosophy students also comprehend the difference in scope and intention of theoretical reasoning versus practical reasoning. These are just a few explanations, among so many others, why a philosophy course is valuable and should be taught at LT. 

I assume that whoever decided the class would not be offered ignored the relevance of critical thinking skills and the various principles, concepts, and theories that are studied in a philosophy class. This is most unfortunate.

I would not abdicate so easily; however, it will take a concerted effort on the part of teachers, students and their parents to prove the course’s worth in the curriculum.

Perhaps the wider issue to address here is the loss of autonomy for teachers and students who face an ever-increasing stream of mandates, and thus a philosophy class can be eliminated because it isn’t a class that can be easily assessed by corporate testing companies, like Pearson, with their emphasis upon and frequency of district-wide standardized testing as a means of measuring student, teacher, and school performances. 

We might ascertain that perhaps it is because of this “same skills” or “one-size-fits-all” approach to curricula, with a focus on only those skills that can be “tested with pre-packaged tests,” that would eliminate a philosophy class because it obviously does not fit in with the punitive high-stakes testing methodology of today.

Best regards,
Glen Brown


Sunday, May 22, 2016

For College Adjuncts



 

New Faculty Majority Mission Statement:

 

NFM is dedicated to improving the quality of higher education by advancing professional equity and securing academic freedom for all adjunct and contingent faculty. For this purpose, NFM engages in education and advocacy to provide economic justice and academic equity for all college faculty. NFM is committed to creating stable, equitable, sustainable, non-exploitative academic environments that promote more effective teaching, learning, and research. NFM is part of the broader movement for human and worker rights.

Principles:

 

NFM’s mission is shaped by the principles embodied in the following documents:

New Faculty Majority Goals:

  1. Compensation: Equity in Compensation: Equal Pay for Equal Work
  2. Job Security: Equity in Job Security: Automatic Contract Renewals after Probationary Period
  3. Academic Freedom: Equity in Academic Freedom: Freedom from Retaliation in All Teaching and Research
  4. Faculty Governance: Equity in Faculty Governance – Right to Participate Equally for All Faculty Members
  5. Professional Advancement: Equity in Professional Advancement: Progressive Salary Steps and Equal Access to Professional Development Opportunities for All Faculty
  6. Benefits: Equity in Benefits: Access to the Same Health Insurance & Retirement Benefits for All
  7. Unemployment Insurance: Equity in Unemployment Insurance: Access to the Same Benefits as Other Seasonal Employees

New Faculty Majority: Website.