Tuesday, May 7, 2013

What about that pension agreement between the We Are One Illinois Labor Coalition and Senate President Cullerton?

Contracts supported by consideration are often one-sided, advantageous arrangements. In Illinois, any agreement with the General Assembly regarding a “guaranteed” funding to the pension systems, for example, may 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. It is an expedient bargain for many members of the Illinois General Assembly, nonetheless, particularly since there haven’t been consequences for their past thievery and depravity.

It wasn’t too long ago when John Stevens, Legal Consultant for the We Are One Illinois 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.” Indeed, the concept of duress (or coercion) is a vitiating (legally defective) factor and; therefore, Illinois legislators are breaching a contract by forcing public employees to make a choice to diminish their originally-vested and paid-for guarantee (unless, of course, their guarantees are “diminished” through “modification of contract principles” at the bargaining table).

Like previous legislators’ proposals, the impairment of the COLA for both active teachers and retirees in SB 2404 offers public employees no ethical and lawful alternatives except to consent to the General Assembly’s demands and choose between two illicit choices.

It is unlawful to induce undue pressure upon public employees to make an unfair choice.  It is a blatant exploitation of influence to obtain an unwarranted advantage – an illegitimacy of the General Assembly’s advantageous attempt to renegotiate a constitutionally-guaranteed contract. Furthermore, the “ironclad” funding assurance for a COLA is uncertain.

It was a short while ago when the We Are One Illinois Labor Coalition stated, “Although [a] bill contains a pension funding guarantee, it can be circumvented if a court finds it significantly imperils broad categories of other funding priorities… [Besides], it does not give employees a separate right to civil action and only provides permissive authority for the retirement systems to sue for payment.” 

There is no question whether legislators will renege on any new promise made to public employees. The question is how soon it will happen. Let’s not forget that policymakers can rewrite or undo any bill they pass. After all, they are doing it right now.

And what about contributing even more money for an “ironclad” legislative promise? Out of the 126 state plans recently charted, Illinois would be ranked number one among state-sponsored teacher plans at 11.4% and ranked in the top five among all plans.

Many of us believe there will never be enough public employees’ sacrifice to placate the unscrupulous legislators of Illinois and their mania for “pension reform.” Whatever pension reform bill they sign into law will set a precedent for more assaults later. Eric M. Madiar, Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate, stated 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, especially retirees, argue that unions should not bargain away any of the public employees’ “constitutionally-guaranteed,” rights and benefits. I have heard from some of them. Over 6500 people signed the “Illinois Revenue and Debt Reform, Not Pension Reform” petition online, the petition that IEA refused to endorse a few months ago, the one that stated explicitly that pensions are constitutionally-guaranteed contracts that should be protected against liars and thieves.


8 comments:

  1. Glen,

    For the past 20+ years the IEA has abandoned the fight for public education and the rights of teachers and students that enter our classrooms. Their passive acceptance of standardized testing, lack of leadership in curriculum development and graduation requirements that have limited students' opportunities, advocacy for using test scores in teacher evaluation, silence over the expansion of charter schools, silence on the privacy violation of giving student information to the state and federal government to punish teachers and promote the privatization of public education, and the list goes on. Leadership requires foresight, advocacy, visibility, and tenacity. Why should today's developments be a surprise to anyone?

    Roger Sanders

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  2. Dear Roger,

    I was told recently I was “naïve” for believing Illinois legislators have a duty to uphold constitutionally-guaranteed contracts.

    Though it is difficult to avoid becoming a cynic in this so-called “New Reality” and accept the Orwellian “New Rhetoric” or “thought-speak” heard in media and at conferences, it is true expectations determine our behavior and outcomes, nevertheless. There is a greater danger in falling prey to contagious indifference.

    glen

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  3. from John Dillon:

    As pre-teens, my brother and I used to fantasize and argue at night from our beds about illogical differences. For example, I held that the French Foreign Legion was a better choice than my brother's favorite: British Commandos. The two bills remind me of one of our quickly settled arguments: how would you prefer to die - by sword or gun?

    …If you are wondering about the "choice" bill when first brought up, Bayer was quick to dismiss it, and he earned the wrath of Cullerton for quite some time, probably still. Not only did Stevens, AFSCME's lawyer describe the coerciveness of the choice but Mr. Bayer also reminded Cullerton that the state - unlike a business - is a taxing authority and should dimly raise the revenue through taxation. After all, he had a point - get the taxes now that you didn't tax for years while you stole our money. The simplicity and honesty outraged Madigan as well - who hates all things simple and honest.

    Now, it appears, the unions are willing to jump on when presented with a scary alternative - better the gun than the knife, as my bro would say.

    It doesn't take much of a history of watching Springfield to predict that this session is not the end of the book - only the end of another chapter. If they were to pass the union-backed choice plan, would anyone be so naive as to think they won't be back for more a bit later? Only the unions, who have already capitulated?

    Martire has warned that the numbers do not and cannot make up the defect no matter how draconian the bill, even Biss' Beast. They'll be back. Cullerton's Creation can't achieve half of the Madigan/Nekritz alternative, but certainly works to move unions away from a legal battle. Even in its nebulous outline, the possible bill sounds and feels like a better deal to the IEA, IFT, etc. The conjecture in outline that the collective bargaining may be lost as well - at least for the benefit changes and increased contributions would make any active seriously nervous. That's no freeze, my friend. That's forever. And I do not yet see any language in the outlines that freeze the state's ability to return for more. And they will; that's forever too.

    So, bro, gun or sword - the next question is where.

    JD

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  4. from Fred Klonsky:

    Pat Church,
    Cathy Borge, Region 36 Chair
    Janet Kilgus, IEA - Retired Chair
    Erin Breen, PREA President

    Please note that I will not be going on the bus to Springfield on Wednesday, May 15th for Lobby Day.

    The announcement yesterday of a deal between the We Are One coalition and Senate President John Cullerton makes it impossible for me to participate as I do not support either the Madigan bill or SB2404.

    I believe both reduce the constitutionally protected benefits of both active and retired members of TRS. Both bills make the victims of the policy of failing to adequately fund TRS the ONLY ones who pay any price.

    My opposition to both bills will continue. However, I feel it would be unfair to oppose the IEA leadership's efforts while traveling to Springfield on the IEA's dime, so to speak.

    -Fred Klonsky

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  5. From We Are One Illinois Labor Coalition

    Friends,

    Our coalition has consistently said that we are willing to work with all parties interested in developing a fair, constitutional pension funding solution. In recent weeks Senate President John Cullerton took up our coalition’s call to “work with us” on such a solution. Yesterday, we achieved an agreement with him on legislation to address the severe crisis facing Illinois’ public pension systems. Our negotiations have been guided by the coalition’s framework position – enacting an ironclad funding guarantee, including revenue as part of the solution, and minimizing the burden on employees and retirees who did not cause this problem. All three goals are met in the agreement that was reached...

    President Cullerton has presented our negotiated agreement to his caucus and will sponsor and work to advance it. The agreement will be embodied in Senate Bill 2404. We reached this agreement as extremely harsh proposals advanced in the House of Representatives—culminating last week in House passage of SB 1, legislation that would drastically reduce the pension income of both active employees and current retirees throughout their retirement years. It’s important to remember what we’re up against – deep cuts in SB 1 that would be far worse.

    To compare our agreement (SB 2404) with SB 1:

    • SB 1 caps COLAs at extremely low levels, slashing the 3% compounded COLA as we know it for most active employees and current retirees. Our agreement gives employees and retirees the option of maintaining a 3% compounded COLA.
    • SB 1 raises retirement ages without regard to the physically- and mentally-demanding professions held by public workers – nurses, police, teachers, and corrections officers, just to name a few. Our agreement keeps retirement ages intact.
    • SB 1 limits the amount of salary that earns a pension, failing to acknowledge the mandatory long hours and difficult jobs worked by many in public service. Our agreement offers viable ways to avoid that.
    • SB 1 offers no choice. It simply imposes steep cuts without adequate consideration. Our agreement gives employees and retirees a range of options.

    SB 1 is more than just unfair; it’s blatantly unconstitutional. But recent remarks by the Speaker suggest that he believes a majority of the Illinois Supreme Court will uphold his bill. We are confident that our legal case is strong, but the outcome of litigation is never guaranteed. It is a high-risk strategy to allow SB 1 to pass and take our chances in court.

    The legislature now has a choice to make. That is why the fight to stop SB 1 is absolutely critical. That is why it is equally critical that you join in the effort to build support in the Senate and House for the We Are One coalition agreed bill with President Cullerton – SB 2404. House approval of SB 1 was a setback, but it was not a defeat. The negotiated agreement reached in the Senate offers the best opportunity for a fair, responsible solution to Illinois’ pension funding problems.

    This week, we expect critical votes in the Senate, so we are encouraging calls to your state senators.
    Call now toll-free at 888-412-6570...

    Tell your state senator to reject SB 1 – it’s unfair, unconstitutional, and balances the pension debt on the backs of employees and retirees.

    Tell your state senator to support SB 2404 – the fair, responsible, and constitutional plan supported and negotiated by the We Are One Illinois union coalition.

    We have demonstrated our willingness to offer a credible way forward, to ensure fairness for public sector employees and retirees, and to ensure the stability of the retirement systems for the next generation. We urge that politicians from both parties in both chambers embrace SB 2404, and we ask that you encourage them to do so.

    - We Are One Illinois

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  6. The Madigan “Bad Cop” & Cullerton “Good Cop” Modus Operandi Worked Quite Well.

    “The best deceptions are the ones that seem to give the other person a choice: your victims feel they are in control but are actually your puppets. Give people options that come out in your favor whichever one they choose. Force them to make choices between the lesser of two evils, both of which serve your purpose. Put them on the horns of a dilemma…

    “Such is the power of giving people a choice, or rather the illusion of one, for they are playing with cards you have dealt them… For people who are choosing between alternatives find it hard to believe they are being manipulated or deceived; they cannot see that you are allowing them a small amount of free will in exchange for a much more powerful imposition of your own will.

    “Setting up a narrow range of choices, then, should always be a part of your deceptions… It is always good to allow your victims their choice of poison and to cloak your involvement in providing it to them as far as possible… ‘For the wounds and every other evil that men inflict upon themselves spontaneously, and of their own choice, are in the long run less painful than those inflicted by others’” (Niccolo Machiavelli, 1469-1527).

    from The 48 Laws of Power by Robert Greene

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  7. from the Illinois Retired Teachers Association

    As you are probably aware the We Are One Illinois coalition including the IEA negotiated an agreement with Senate President Cullerton concerning pension reform. The agreement is structured as a choice proposal affects current retirees. The proposal will provide a choices between healthcare and a staggered two-year COLA freeze or keeping a 3% compounded COLA with no access to health care. The impairment and diminishment language in the proposal is clearly unconstitutional.

    The IRTA will continue to oppose legislation that diminishes benefits for retirees.

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  8. A letter from Jane Artabasy

    …After the last year of orchestrated pension attacks, I have trouble believing that the Cullerton plan is really a step forward for us… Couldn't the true, behind-the-scenes scenario be that Cullerton and Madigan don't really mind dueling plans because they count on the two plans dividing us (unions vs. IRTA, etc.)? And once we were at loggerheads about what plan to accept or not to accept, whether to test the courts or not, we all lose our united focus re keeping the pressure on legislators?

    Doesn't it make sense…, strategically speaking, that, since we can't count on the courts--history bears that out--we should concentrate on getting the best possible deal through Springfield, then let surrogates (even the IRTA) challenge it in court? Whether the more generous Cullerton plan or the draconian Madigan plan--or even a hybrid of the two--gets passed, we'll still be victimized. And that's fine with a lot of people, believe me. THEN, when we've maximized our security (or minimized the damage) in Springfield, we can turn our efforts toward a court case. One thing at a time, in other words. Doesn't that make sense?

    Frankly, with the Tribune's incessant railing against us, they have framed the argument as teachers vs. children, sick people, and every other sympathetic contingency imaginable. They don't ever make a case that the legislature is the only "evil" party in this morality play, and that it's time for them to experience consequences--not to tax middle class workers more, but to tax the obscenely wealthy (i.e., Penny Pritzker World). That being said, we have to keep public opinion with us as much as is doable, so shouldn't we back some version of legislation--something will be passed anyway--and be seen as contributing to a solution? Then the courts can do whatever they will. Madigan is sure he's got them in his back pocket, and he certainly may, given the cesspool of this state's political culture.

    …I just feel that dividing different segments of the teacher community is not a good sign and may be the point of these dueling plans all along.

    --Jane Artabasy

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