Tuesday, October 31, 2017

From Attorney John Fitzgerald’s Power-Point Presentation at the IRTA Biennial Convention on October 30, 2017

Kanerva v. Weems: Health Insurance Benefits Are Protected
       This was a constitutional challenge to an amendment to the State Employees Group Insurance Act which reduced State contributions toward health insurance costs for retired public pension system members and their survivors.
       The Court held that this amendment was unconstitutional.
       The Pension Protection Clause protects more than the pension annuity.  It protects all “benefits” of membership in a pension system, including health insurance benefits.
       If there is any doubt about the scope of a constitutional protection for pension rights, those doubts are resolved in favor of the pensioner.

Kanerva and your health insurance benefits
       In Kanerva, the Supreme Court ruled that the Pension Protection Clause protects not only pension annuities but also “health insurance subsidies.”  (Kanerva, par. 49.)
       In Kanerva, the Supreme Court invalidated amendments to the State Employees Group Insurance Act that “altered the State’s obligation to contribute toward the cost” of coverage by increasing retirees’ premiums and reducing the State’s contributions.  (Kanerva, par. 12-13.)  Importantly, the amendments challenged in Kanerva didn’t abolish a health insurance program.  They just made the benefits more expensive and pushed more costs onto retirees.

Doris Heaton v. Pat Quinn: Crisis is no excuse to violate the Constitution
       The IRTA’s own Doris Heaton and Pamela Keller were plaintiffs in this challenge to Senate Bill 1.
       Senate Bill 1 reduced automatic annuity increases (AAIs), placed caps on pensionable salaries, increased the retirement age and made other changes that diminished pensions.
       The Court unanimously ruled that Senate Bill 1 was unconstitutional.
       “The General Assembly may find itself in crisis, but it is a crisis which other public pension systems managed to avoid and . . . it is a crisis for which the General Assembly itself is largely responsible.” 
       “Crisis is not an excuse to abandon the rule of law.  It is a summons to defend it.”

Jones v. Municipal Employees’ Annuity & Benefit Fund of Chicago
       The Supreme Court unanimously invalidated other amendments to the Pension Code that were similar to the amendments contained in Senate Bill 1, but which affected members of a public pension fund for City of Chicago municipal employees.
       Take home lesson:  It means nothing that a union gives political support to legislation affecting pension rights, if that support did not result from collective bargaining.

Matthews v. CTA: Collective bargaining does not bind retirees
       The Supreme Court held that constitutionally protected pension rights can be waived through collective bargaining.
       But collective bargaining does not bind retirees.
       The plaintiff in the Matthews case who was already retired when changes to pension rights were approved in collective bargaining was not bound by that decision and kept his pre-existing pension rights.

City of Harvey Firefighters Pension Fund Case: First court ruling that mandates funding
       The Illinois Supreme Court has repeatedly held that the Pension Protection Clause guarantees benefits but does not require any particular level of funding -- unless a pension fund is on the verge of default or imminent funding.
       For the first time, the Illinois Appellate Court held that a public pension system was on the verge of default and mandated a certain level of funding. 
       See Board of Trustees of City of Harvey Firefighters’ Pension Fund v. City of Harvey, 2017 IL App (1st) 153074 (August 4, 2017).
       As of May 2015, Harvey had 47 active firefighters and 67 retirees or beneficiaries.
       2005-2013: The City was required to contribute about $11.6 million to the fund, but only contributed $1.4 million.  During that time, the fund paid $13.6 million to beneficiaries. 
       The fund was only 27.18% funded as of May 1, 2014.  By comparison, TRS has a funded ratio of 39.8% and its fiduciary net position is 36.4% of total pension liability.  (See TRS Annual Financial Report for FY ending 6/30/16.)
       Experts testified the fund would go bust in approximately 5 years. Harvey, an economically distressed city of 25,000, offered no plan to solve the problem.
       The trial court judge said Harvey’s situation was a “sort of microcosm of what’s going on with the pensions throughout the state.”
       Appellate Court: “In essence, Harvey is robbing Peter to pay Paul, but what happens when Peter retires?”
       The Appellate Court affirmed an order requiring the City to:
       pay the Fund about $11.6 million;
       comply with statutory funding formula; and
       annually approve a line-item property tax levy ordinance for the benefit of the fund.

City of Harvey: The Bottom Line
       This area of law is developing rapidly. 
       The Courts are taking their constitutional role very seriously.
       We must continue to carefully monitor the fiscal health of TRS and also monitor the development of this area of law.
       The State should be on notice that funding can be mandated by court order.  
Future Challenges: Threats to Health Insurance Benefits
       The current governor, the previous governor and our legislative leaders have repeatedly taken aim at your health insurance benefits.
       Our Supreme Court stopped similar efforts in Kanerva v. Weems.
       This is where the fight to protect your pension rights will likely continue.

The path forward
       For the reasons explained in Kanerva, we believe any attempt to take away your health insurance benefits will ultimately fail. 
       We are ready, willing and able to fight any further efforts through litigation if necessary. 
       “Crisis is not an excuse to abandon the rule of law. It is a summons to defend it. How we respond is the measure of our commitment to the principles of justice we are sworn to uphold.”  (Heaton v. Quinn, par. 87.)
       You should be proud of how your Association has responded and will continue to respond to the crisis.

Monday, October 30, 2017

Fred Klonsky’s Notes on Attorney John Fitzgerald’s Speech at the IRTA

“Fitzgerald pointed to four legal cases: Kanerva v. WeemsHeaton v. Quinn (Yes. THAT Quinn), Jones v. the Municipal Employees Annuity and Benefit Fund of Chicago and Matthews v. the Chicago Transit Authority.

“What were the significant legal conclusions of each as they concerned the pension protection clause, Article XIII, Section 5 of the Illinois Constitution which states that benefits are a contractual obligation that cannot be diminished or impaired?

“With Kanerva v. Weems, the court established the principle that protected benefits went beyond annuities and included such things as health insurance benefits.

“With Heaton v. Quinn the court confirmed that a crisis, particularly one created by the state, is not an excuse to violate the constitution. ‘It is a summons to defend it,’ wrote the court in its unanimous opinion.

“With Jones v. the MEABF of Chicago, the court said that it means nothing that a union gives political support to legislation reducing pension rights if that result does not result from collective bargaining and a vote of the members.

“In Matthews v. the CTA, the court wrote that constitutionally-protected benefit rights can be waived through collective bargaining but cannot be retroactively applied to those already retired.

“While the 1970 Constitution does protect pension benefits, it is less clear on how the benefits are to be funded. Fitzgerald explained that those at the convention discussed it, but they did not anticipate the degree to which the politicians of the state would allow the funding to be diverted. They believed that action would be taken before a system would go into default.

“But what constitutes default? Fitzgerald pointed to the case of the City of Harvey and the Harvey Firefighters Pension Fund. In that case, the pension fund was only 27% funded, and actuaries anticipated it would go belly up within five years.

“An appellate court judge ruled in summary judgment that this constituted impending default and ordered the City of Harvey to implement a time-line levy to make the pension system whole.

“Some have wondered what might happen if the state pension funds were to go into default. Fitzgerald believes the Harvey Fire-fighters’ case gives us some clues.

“In that case the judge found that there is a legal threshold for what constitutes default. In spite of what Governor Rauner has suggested, Congress cannot amend the state constitution and eliminate the pension protection clause. The pension debt must be paid. The legislature can do it. If it refuses to act on their legal and moral obligation, a court can and will order it done.

“To those who have threatened state bankruptcy, as happened with the City of Detroit, Fitzgerald argued that bankruptcy cannot be applied to just one debt, like the pension debt. Bankruptcy is applied to all debts. And states cannot file bankruptcy anyway as long as they have the power to raise revenue.

“These were my notes. I am not an attorney. If I did not represent John Fitzgerald’s presentation with perfect accuracy, I apologize. That’s why they make the big bucks”—Fred Klonsky. 


2014   Kanerva v. Weems (July 3):

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 v. Weems, 2014 IL 115811).

“…Under Kanerva, it is clear that the Illinois Constitution protects pension and retirement benefits from the diminishments and impairments that the Act imposes, and that the plaintiffs are entitled to their benefits without any diminishment or impairment from the respective State retirement systems. The very purpose of the Pension Protection Clause was to constitutionally guarantee the payment of pension and retirement benefits, to remove from the General Assembly the power to impair or diminish those pension benefits, and to eliminate the very argument that the defendants raise by their affirmative defense. There can be no ‘reserved sovereign power’ to do something that the Illinois Constitution expressly prohibits…” (from Update for Pension Lawsuit: Motion Filed Today, August 21st, in the Circuit Court for the Seventh Judicial Circuit in Sangamon County, Illinois).

“Applying this constitutional rule, our courts have repeatedly invalidated amendments to the Illinois Pension Code that would change the calculation of a pension system member’s pensionable salary so as to diminish that member’s pension benefits. In Heaton, the Illinois Supreme Court invalidated legislation which, among other things, ‘cap[ped] the maximum salary that may be considered when calculating the amount of a member’s retirement annuity.’ Heaton 2015 IL 118585, ¶ 27 (describing P.A. 98-0599) (Lawyer and Lobbyist Eric M. Madiar Believes Cullerton's Senate Bill Is Permissible/Lawyers Gino L. DiVito and John M. Fitzgerald Disagree).

2015   MARY J. JONES et al., Appellees, v. MUNICIPAL EMPLOYEES’ ANNUITY & BENEFIT FUND OF CHICAGO et al., Appellants (March 24):

“…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”)…” (Jones v. Municipal Employees' Annuity and Benefit Fund, Circuit Court). The Illinois Supreme Court affirmed the decision on March 24, 2016: (Jones v. Municipal Employees' Annuity &Benefit Fund, 2016 IL 119618).

2015   Doris Heaton, et al. v. Pat Quinn, in his capacity as Governor of the State of Illinois, et al. (May 8):

“…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” (Heaton v. Quinn, 2015 IL 118585).

“…As the Illinois Supreme Court has explained, ‘once an individual begins work and becomes a member of a public retirement system, any subsequent changes to the Pension Code that would diminish the benefits conferred by membership in the retirement system cannot be applied to that individual.’ In re Pension Reform Litigation (Heaton v. Quinn), 2015 IL 118585, ¶ 46; see also Kanerva v. Weems, 2014 IL 115811, ¶ 38; Jones v. Municipal Employees’ Annuity & Benefit Fund of Chicago, 2016 IL 119618, ¶¶ 36-47. 

2016  JERRY MATTHEWS et al., Appellees and Cross-Appellants, v. CHICAGO TRANSIT AUTHORITY et al. (Retirement Plan for Chicago Transit Authority Employees et al., Appellants and Cross-Appellees) (May 5):

“…[A] contract right becomes vested when the employee has fulfilled all of the necessary qualifications and obligations for enjoyment of the right, [as in the case of retirees]. Lawrence, 152 Ill. App. 3d at 197-98 (quoting Kulins, 121 Ill. App. 3d at 525-27); see also Navlet v. Port of Seattle, 194 P.3d 221, 237 (Wash. 2008) (en banc)… Where all of the requisite specifications for the present or future enjoyment of a right have been achieved, the right is considered to be vested…” Black’s Law Dictionary 1699 (9th ed. 2009). (qtd. in Matthews v. CTA, 2016 IL 117638).

Can the Unions and the Illinois General Assembly Bargain Away Constitutionally-Guaranteed Benefits through Consideration for Retirees? The answer is unequivocally NO regarding retirees. Retirees are not part of the collective bargaining process, only active employees are. However, some people believe that the Illinois Supreme Court had suggested that a consideration supported by collective bargaining for current employees is a possibility (Matthews v. Chicago Transit Authority, 2016 IL 117638). 

Some people believe that a legitimate consideration means not diminishing an already existing constitutionally-guaranteed benefit. I am one of those people; however, my strongest beliefs have always been based upon moral perspectives reinforced by the most current legal analyses.

-Glen Brown

Sunday, October 29, 2017

Illinois Supreme Court: Complete Illinois Pension Reform Oral Arguments

 My good friend, Fred Klonsky, will be attending the biennial convention of the 40,000 member Illinois Retired Teachers Association tomorrow, October 30th. He states: “I’m looking forward to hearing from our attorney, John Fitzgerald. John is with the firm of Tabet, DiVito & Rothstein. It was Gino DiVito who gave the main oral argument before the Illinois Supreme Court in the historic case that preserved pensions for current retirees and those in the public pension systems. John will bring us up to day on the legal shenanigans that continue around our public pensions. I will be taking copious notes." The video sound turns on at 15:00; DiVito addresses the Supreme Court at 37:00.

Monday, October 23, 2017

“Brain benefits were observed with regular exercise of at least moderate intensity”

“A regular and rigorous exercise program can help to preserve memory and thinking skills in people over 50, a large new analysis found. The findings provide strong new evidence of just how good exercise can be for the aging brain.

“The study found that aerobic exercise or weight training, or a combination of the two, were effective in boosting brain health. The exercise should be of moderate to vigorous intensity and last for at least 45minutes. The more days a week you exercise, the better, the analysis found.

“Tai chi, an ancient Chinese exercise regimen that uses body movements and breathing techniques to promote balance, control and relaxation, was also shown to be effective in preserving brain health, the study found. The findings were published in the British Journal of Sports Medicine.

“For the study, researchers at the University of Canberra in Australia pooled data from 36 rigorous trials that looked at exercise and brain health in people over 50. Brain benefits were observed with regular exercise of at least moderate intensity that lasted for 45 to 60 minutes.

“‘To improve cognitive function, this analysis provides clinicians with evidence to recommend that patients obtain both aerobic and resistance exercise of at least moderate intensity on as many days of the week as feasible,’ the authors concluded.

“The American Heart Association recommends that all adults, including older ones, strive for an ‘active lifestyle.’ That means getting at least 150 minutes per week of moderate exercise, or 75 minutes per week of vigorous exercise, or a combination of both moderate and vigorous activity. That translates to 30 minutes a day, five times a week, though the group says that getting short bursts of activity – say 10 to 15 minutes a few times a day – is also effective. Climbing stairs, playing a sport, walking, jogging, swimming or biking all count. The heart association also recommends strength and stretching exercises that build overall stamina and flexibility.

“Other studies have suggested that regular exercise may help to ward off Alzheimer’s disease and other forms of dementia. Walking and other forms of regular exercise may even help to slow the decline in memory and thinking skills in people who already have the disease.

“Ongoing physical activity has been linked to a longer life and all kinds of benefits for the body, including less heart disease, fewer falls and broken bones, greater lung function and a healthier body weight. It may be especially important to exercise and adopt other healthy lifestyle measures early in life, given mounting evidence that factors like obesity, high cholesterol, diabetes and sedentary behavior in midlife all increase the risk of Alzheimer’s in old age.

“Alzheimer’s is a complex disease that likely depends on many factors, including the genes you inherit. Lifestyle factors are likely just one part of the preventive puzzle. While regular visits to the gym won’t guarantee a physically and mentally robust old age, it may help you to look, feel and act younger. Make sure to check with your family doctor before starting any new physical activity program.”

By www.ALZinfo.org, The Alzheimer’s Information Site. Reviewed by Marc Flajolet, Ph.D., Fisher Center for Alzheimer’s Research Foundation at The Rockefeller University.

Source: Joseph Michael Northey, Nicolas Cherbuin, Kate Louise Pumpa, et al: “Exercise interventions for cognitive function in adults older than 50: a systematic review with meta-analysis.” British Journal of Sports Medicine, April 24, 2017

Thursday, October 19, 2017

"Please contact your Senators and ask them to reject Michael Dourson for EPA this week"

"Fifteen years ago, our eight-year-old daughter Katherine died of a preventable leukemia caused, we have every reason to believe, by mosquito spraying with chlorpyrifos, without permission or notification. Most parents cannot imagine what it is like to wake up and find their beloved child dead beside them. We have fought ever since to make sure fewer parents ever do...

"Imagine, then, our feelings when we learned that President Trump has picked a chemical industry hired gun, Michael Dourson, to lead chemical safety at EPA... He delivers results for the chemical companies, and our children suffer. Who could possibly look at such a background and believe Dourson should be entrusted with the health of our children? Please contact your Senators and ask them to reject Michael Dourson for EPA this week."

For the complete article by Jean-Marie Kauth, "Join EDF in Opposing Michael Dourson's Nomination to EPA," click here.

Tuesday, October 17, 2017

“I am a teacher. I will always be a teacher. I love teaching, but this isn't teaching”

“…After 22 years, I don't know if I have it in me anymore. I am a teacher. I will always be a teacher. I love teaching, but this isn't teaching. Everything I am required to do is about preparing my students for ‘the test.’ I spend all day, every day, ramming test prep down my students' throats. Then I do what seems like 8,000 reams of paperwork each week to prove that I'm ramming test prep down my students' throats. There is no joy in this for them. I see their blank faces with eyes glazed over. There is no fun or excitement in learning, for they are not really learning.
“This past weekend, I spent literally every waking hour working and taking breaks only to do laundry and prepare food for my son. I wrote my lesson plans with all of the required ‘non-negotiables’ included and explained. I examined my data to make decisions about what skills might need some re-teaching and what skills could be practiced and reinforced in centers. I dutifully created my differentiated centers and made them rigorous (a term that has no business in education). I printed off copies of things on my own printer, using my own ink and paper because we only get 1000 copies per month. I laminated, cut, and put things in folders to make sure I was all ready for today.
Then, in the middle of my ELA block this morning, my principal walked in to do a walk-through. Apparently, this go round was focused on centers because she asked to see mine as she did for all of my teammates, I later learned. Well, I figured this one would be easy after everything I did over the weekend. She looked at them, asked me a couple of questions, and left. My observation notification came through after school. Imagine my surprise when I received a Basic for Danielson Domain 1e: Designing Coherent instruction.
“My principal's only comment: ‘While it's good to see differentiated centers there needs to be paired texts and writing in your centers.’ Make no mistake, I am open to criticism, especially when criticism is constructive and valid. This, however, is neither constructive nor valid. This is about playing a game. This is about making up a fault that isn't included in the rubric when you can't find one that is. This is about making sure that teachers don't get too many points so we can keep those merit-based raises to a minimum.
“This is what education has become. It's a game; it's inauthentic; it's draining. They're putting out the fire that has blazed inside of me. They're destroying my soul and my passion. I don't know what to do now. I am a teacher. I will always be a teacher. I love teaching, but this isn't teaching.”

Monday, October 16, 2017

Alzheimer's Falsehoods v. Facts

Top of Form
Myth 1: Memory loss is a natural part of aging.

Reality: As people age, it's normal to have occasional memory problems, such as forgetting the name of a person you've recently met. However, Alzheimer's is more than occasional memory loss. It's a disease that causes brain cells to malfunction and ultimately die. When this happens, an individual may forget the name of a longtime friend or what roads to take to return to a home they've lived in for decades.

It can be difficult to tell normal memory problems from memory problems that should be a cause for concern. The Alzheimer's Association has developed information to help you tell the difference. If you or a loved one has memory problems or other problems with thinking and learning that concern you, contact a physician. Sometimes the problems are caused by medication side effects, vitamin deficiencies or other conditions and can be reversed with treatment. The memory and thinking problems may also be caused by another type of dementia.

Myth 2: Alzheimer’s disease is not fatal.

Reality: Alzheimer's disease has no survivors. It destroys brain cells and causes memory changes, erratic behaviors and loss of body functions. It slowly and painfully takes away a person's identity, ability to connect with others, think, eat, talk, walk and find his or her way home.

Myth 3: Only older people can get Alzheimer's.

Reality: Alzheimer's can strike people in their 30s, 40s and even 50s. This is called younger-onset Alzheimer's. It is estimated that there are more than 5 million people living with Alzheimer’s disease in the United States. This includes 5.2 million people age 65 and older and 200,000 people younger than age 65 with younger-onset Alzheimer’s disease.

Myth 4: Drinking out of aluminum cans or cooking in aluminum pots and pans can lead to Alzheimer’s disease.

Reality: During the 1960s and 1970s, aluminum emerged as a possible suspect in Alzheimer’s. This suspicion led to concern about exposure to aluminum through everyday sources such as pots and pans, beverage cans, antacids and antiperspirants. Since then, studies have failed to confirm any role for aluminum in causing Alzheimer’s. Experts today focus on other areas of research, and few believe that everyday sources of aluminum pose any threat.
Myth 5: Aspartame causes memory loss.

Reality: This artificial sweetener, marketed under such brand names as Nutrasweet and Equal, was approved by the U.S. Food and Drug Administration (FDA) for use in all foods and beverages in 1996. Since approval, concerns about aspartame's health effects have been raised.

According to the FDA, as of May 2006, the agency had not been presented with any scientific evidence that would lead to change its conclusions on the safety of aspartame for most people. The agency says its conclusions are based on more than 100 laboratory and clinical studies. Read the May 2006 FDA statement about aspartame.

Myth 6: Flu shots increase risk of Alzheimer’s disease.

Reality: A theory linking flu shots to a greatly increased risk of Alzheimer’s disease has been proposed by a U.S. doctor whose license was suspended by the South Carolina Board of Medical Examiners. Several mainstream studies link flu shots and other vaccinations to a reduced risk of Alzheimer's disease and overall better health.

Myth 7: Silver dental fillings increase risk of Alzheimer's disease.

Reality: According to the best available scientific evidence, there is no relationship between silver dental fillings and Alzheimer's. The concern that there could be a link arose because "silver" fillings are made of an amalgam (mixture) that typically contains about 50 percent mercury, 35 percent silver and 15 percent tin. Mercury is a heavy metal that, in certain forms, is known to be toxic to the brain and other organs.

Many scientists consider the studies below compelling evidence that dental amalgam is not a major risk factor for Alzheimer's. Public health agencies, including the FDA, the U.S. Public Health Service and the World Health Organization, endorse the continued use of amalgam as safe, strong, inexpensive material for dental restorations.

Myth 8: There are treatments available to stop the progression of Alzheimer's disease.

Reality: At this time, there is no treatment to cure, delay or stop the progression of Alzheimer's disease. FDA-approved drugs temporarily slow worsening of symptoms for about 6 to 12 months, on average, for about half of the individuals who take them.