tag:blogger.com,1999:blog-1797875972831999598.post5983743083681481605..comments2023-11-22T04:27:07.521-06:00Comments on glen brown: A Response to Senator Cullerton's Pension Reform Proposal and Eric M. Madiar's Analysis (by Gino L. DiVito and John M. Fitzgerald)gbrownhttp://www.blogger.com/profile/13435049339082622611noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-1797875972831999598.post-46127985627892888362016-07-26T07:49:09.897-05:002016-07-26T07:49:09.897-05:00It is evident that Illinois legislators will conti...It is evident that Illinois legislators will continue to dispute one of the Bill of Rights contained in both the Illinois and U.S. Constitutions instead of addressing the real causes of the state's budget deficits: the pension ramp, the resultant pension debt, and the state’s insufficient flow of revenue. <br /><br />What these legislators should be doing is reexamining the concept of justice and what lawfulness demands: that people must keep their covenants with one another. No justice is accomplished when diminishing public employees' constitutionally-guaranteed benefits and rights. What needs to be diminished, however, is the continuation of legislators' irresponsibility, corruption, and incompetence.<br /><br />Any modifications of the Pension Protection Clause by the Illinois General Assembly should be seen for what it is: an accommodation for “only” the General Assembly who have stolen money from the public pension systems for decades and are, thus, avoiding a pre-existing duty rule.<br /><br />I have said this many times: contracts supported by consideration are often one-sided, advantageous arrangements, especially a consideration that would be in exchange for reductions of originally-vested benefits assured by the Illinois Constitution. <br /> <br />What the Illinois General Assembly needs to be reminded of again and again is that the Illinois 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)).<br />gbrownhttps://www.blogger.com/profile/13435049339082622611noreply@blogger.comtag:blogger.com,1999:blog-1797875972831999598.post-48694687384750022892016-07-26T07:18:48.461-05:002016-07-26T07:18:48.461-05:00From a Memorandum by Gino L. DiVito and John Fitzg...From a Memorandum by Gino L. DiVito and John Fitzgerald to the then Governor of Illinois, Pat Quinn, May 5, 2010:<br /><br />“…When does a State employee earn the right to have his pension calculated in a certain way? Those decisions have been unanimous: ‘Vesting of an employee’s rights in the system occurs either at the time the employee entered the system or in 1971, when the Illinois Constitution became effective, whichever is later.’ Carr v. Bd. of Trustees of Police Pension Fund of Peoria, 158 Ill. App. 3d 7, 8 (3d Dist. 1987); see also Schroeder v. Morton Grove Police Pension Bd., 219 Ill. App. 3d 697, 700 (1st Dist. 1991); Hannigan v. Hoffmeister, 240 Ill. App. 3d 1065, 1073 (1st Dist. 1992); Barber v. Bd. of Trustees of Vill. of S. Barrington Police Pension Fund, 256 Ill. App. 3d 814, 820 (1st Dist. 1993 (same, quoting Carr, 158 Ill. App. 3d at 8)…<br /><br />“Thus, a State employee’s pension rights are ‘governed by the actual terms of the Pension Code at the time the employee becomes a member of the pension system.’ Di Falco v. Bd. of Trustees of Firemen’s Pension Fund of Wood Dale Fire Protection Dist. No. 1, 122 Ill.2d 22, 26 (1988); see also McNamee v. State, 173 Ill.2d 433, 439 (1996); People ex rel. Sklodowski v. State, 182 Ill.2d 220, 229 (1998)…<br /><br />“[T]he Pension Protection Clause was intended to protect State employees ‘against abolishing their rights completely or changing the terms of their rights after they have embarked upon the employment ─to lessen them.’ See Felt, 107 Ill.2d at 162 (quoting 4 Record of Proceedings, Sixth Illinois Constitutional Convention 2929)…<br /><br />“Subsequent Illinois Supreme Court decisions are even clearer on this point. See McNamee, 173 Ill.2d at 439 (pursuant to the Pension Protection Clause, a State employee’s participation in a pension plan is ‘an enforceable contractual relationship’ that is ‘governed by the actual terms of the Pension Code at the time the employee becomes a member of the pension system’); see also Sklodowski, 182 Ill.2d at 229. Sidley Austin’s position is squarely contradicted by this controlling authority…<br /><br />“[T]he Pension Protection Clause does not limit itself…; neither the phrase ‘previously earned,’ nor any equivalent of it, appears anywhere in the Pension Protection Clause. Furthermore…, a State employee earns the right to have his pension calculated in a certain way when he enters the retirement system. Accordingly, a superficial distinction between ‘previously earned’ benefits and prospectively earned benefits does not answer the question at hand. Nothing in the Pension Protection Clause suggests otherwise…<br /><br />“Kraus held that the Pension Protection Clause ‘prohibits legislative action which directly diminishes the benefits to be received by those who became members of the pension system prior to the enactment of the legislation, though they are not yet eligible to retire.’ See Kraus, 72 Ill. App. 3d at 849… Kraus also noted… that a State employee may agree, ‘for consideration, to accept a reduction in benefits.’ Id. at 849... [Furthermore], an end run around the Pension Protection Clause is directly prohibited by Kraus. As that decision explains, the legislature cannot ‘directly’ diminish the pension rights of current State employees, and legislative action that incidentally affects pension rights is permissible only if it is ‘directed toward another aim.’ See Kraus, 72 Ill. App. 3d at 849… [T]o directly diminish the pension rights of current State employees… would therefore violate the Pension Protection Clause…”gbrownhttps://www.blogger.com/profile/13435049339082622611noreply@blogger.com