Saturday, September 29, 2012

While You Were Sleeping: HB 6209 & HB 6210 were filed by Representative Elaine Nekritz


HB 6209 Synopsis As Introduced

Amends the General Provision, General Assembly, State Employee, State Universities, and Downstate Teachers Articles of the Illinois Pension Code. Provides that Tier I employees and Tier I retirees must make an irrevocable election either: (1) to accept changes in eligibility for, and the amount of, automatic annual increases in retirement annuity or (2) to avoid those changes. Provides that a person who elects the first choice may have any future increases in income included as compensation and is entitled to certain healthcare benefits. Provides that a person who elects the second choice forgoes those benefits. Prohibits departments from offering to a person who elects the second choice any future increase in income in a form that would constitute compensation. Requires the System to provide information describing the consequences of making the election. Provides that, for an employee who first becomes a participant on or after the effective date of the amendatory Act, "compensation" does not include any payments for travel vouchers that are submitted late. Defines "future increase in income", "Tier I employee", and "Tier I retiree". Amends the State Finance Act. To the list of standardized items of appropriation, adds "State retirement contribution for annual normal cost" and "State retirement contribution for unfunded accrued liability". Defines those terms. Amends the Governor's Office of Management and Budget Act. Adds those terms to a list of classifications to be used in statements and estimates of expenditures submitted to the Office in connection with the preparation of a State budget. Amends the Illinois Public Labor Relations Act and other Acts to make related changes. Makes other changes. Effective immediately.
HB 6210 has an identical synopsis, except it does not include the Illinois General Assembly and State Employees.
August 3, 2012


Commentary:

As stated by John Stevens, Legal Consultant for the “We Are One” Labor Coalition, “to take away the Cost-of-Living Adjustment for retirees is not a free and fair choice. It is a coercive choice under duress.” In other words, duress (or coercion) is a vitiating factor. Legislators of the State of Illinois are breaching a contract by forcing public employees to make a choice to diminish their originally-vested guarantee. They are breaking an enforceable promise, one that is bilateral and emphasizes an agreement between the State of Illinois and its public employees as to their future rights and benefits. To impair the obligation of a contract is to lessen its value. "Any law which changes the intention and legal effect of the original parties, giving to one a greater and to the other a less interest or benefit in the contract, impairs its obligation" (115 A. 484, 486). State statutes which do so are prohibited by Article 1, Section 10 of the United States Constitution.

Regarding the diminishment of the COLA, this pension reform bill offers public employees no ethical and lawful alternatives except to consent to the General Assembly's demands by choosing between two illicit choices; second, this is unlawful because of the illegitimacy of the General Assembly's advantageous attempt to renegotiate a constitutionally-guaranteed contract; third, it is unlawful to induce undue pressure upon public employees to make an unfair choice; fourth, this is an unjust financial enhancement for the General Assembly because it is a breach of contract for public employees to receive less than what the original vested right and benefit guaranteed, and it is also a blatant exploitation of influence to obtain an unwarranted advantage.

"The notion that, whenever a privilege or benefit might be withheld altogether, it may be withheld on whatever conditions government chooses to impose, has been repeatedly repudiated since the mid-20th century... Unconstitutional conditions – those that make enjoyment of a benefit contingent on sacrifice of an independent constitutional right – are invalid..." (Tribe, Laurence. American Constitutional Law. New York: The Foundation Press, Inc., 1988).


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