Fellow ColoradoPols readers, this morning, a post relating to the use of political influence by supporters of the 2010 Colorado PERA pension contract breach appeared on ColoradoPols.com. The post suggests that proponents of the pension contract breach might attempt to politically influence the Colorado Supreme Court prior to the court's consideration of claims in the PERA pension lawsuit, Justus v. State. In approximately six weeks, the Colorado Supreme Court will hear oral arguments relating to the 2010 Colorado PERA pension contract breach.
(For readers new to this topic, in 2010, the Colorado Legislature enacted a bill, SB10-001, that retroactively eliminated Colorado PERA pension COLA benefits for which current PERA retirees had exchanged decades of labor and pension contributions. The idea that the Colorado Legislature would grant private sector insurance companies similar authority to ignore contracted COLA benefits on annuities they have sold is of course, absurd.)
Given that our very identity as Coloradans rests on the rule of law in our state, the integrity of our Colorado courts, and the sanctity of our Colorado Constitution, I respectfully request that ColoradoPols.com promote my response below.
Here is the April 20, 2014 post on ColoradPols.com:
"The SecurePera.com (proponents of the PERA pension contract breach bill, SB10-001) has sent out a mass email announcing a teleconference next month, and the retiree lawsuit is one of the topics. I suspect they'll encourage SB10-001 supporters to make their presence felt during the oral argument phase of the lawsuit on June 4 (during oral arguments before the Colorado Supreme Court.)
The spectacle of seeing some misguided (or intimidated) retirees supporting the breach of their own pension contracts is surely a dream come true to such uber right-wing billionaires such as the Koch brothers, and John Arnold, infamous for his role in the massive Enron fraud.
It wouldn't surprise me if a certain retired school principal, who is also both a SecurePera supporter and PERA ambassador, tries to rally a contingent of SB10-001 supporters. This goes along with my supposition that a handful of high-end retirees (such as school principals) with 30 plus years of service make up the bulk of the retired SB10-1 supporters. A 2% annual increase on a $100K plus benefit works for them."
Here is my response to the April 20, 2014 ColoradoPols post:
First, we do not know with certainty that the supporters of the 2010 PERA contract breach will attempt, or have actually contemplated, any sort of political demonstration (or political presence) during Colorado Supreme Court oral arguments in the case Justus v. State on June 4, 2014.
However, the proponents of the Colorado PERA pension contract breach did indeed use political maneuvering, and the force of purchased lobbying influence, to achieve their desired outcome before the Colorado General Assembly in 2010. What arrogance they had in 2009/2010 to assume that the property of others can be casually taken in Colorado, that one board of Colorado state government is somehow exempt from the strictures of the Colorado Constitution, that government debts can legally be shifted onto elderly pensioners.
Colorado PERA pension administrators, and Colorado PERA Board members CAN indeed buy lobbying muscle at the General Assembly with our PERA trust fund dollars. But, Colorado PERA administrators and Board members CANNOT buy influence at the Colorado Supreme Court.
Perhaps the group of PERA contract breach advocates will try to "make their presence felt" in the Colorado Supreme Court Chambers, but such a step would be misguided.
Colorado PERA's Board and their hired lobbyists used politics to push the COLA-taking bill, SB10-001 through the legislative process in 2010. Ultimately, 27 lobbyists reported positions in support of SB10-001 to the Colorado Secretary of State.
From Chalkbeat.org in 2009:
"PERA is 'obviously gearing up for some heavy-duty lobbying,' one observer noted. The agency has hired two lobbyists from the firm Colorado Communique, Collon Kennedy and Steve Adams, former president of the Colorado AFL-CIO.
The pension system also has hired Mary Alice Mandarich, a well-connected Democratic lobbyist who formerly was chief of staff for Senate Democrats and who worked on campaigns for former Senate President Joan Fitz-Gerald, former Gov. Roy Romer and gubernatorial candidate Gail Schoettler.
Coalition members have their own lobbyists, and the well-staffed higher education lobby is sure to be involved in this issue as well."
But, the Colorado PERA retiree COLA lawsuit, Justus v. State, does not address a political question. It addresses a legal question. Can Colorado public pension contracts be abrogated in order to minimize taxation in the state with the lowest per capita state taxation in the nation? The Colorado Supreme Court is confronted by a legal question. Can the court ignore our foundational document to achieve a desired political outcome?
The Colorado Court of Appeals has found that the Colorado Constitution is beyond the reach of purchased lobbying muscle at the Colorado Legislature. I sincerely hope that all Colorado courts will continue to defend the Colorado Constitution and public pension contractual rights.
I believe that the Colorado Supreme Court must proceed with extreme caution to prevent all political considerations from infecting litigation of the case, Justus v. State.
I recognize that one current (and in my view, quite talented) member of the Colorado Supreme Court has previously represented Colorado PERA for the Colorado Attorney General's Office (I expect that she will not participate in this case.)
I recognize that another current Colorado Supreme Court justice did not participate in the court's earlier action in this case.
I recognize that a third (newly appointed) member of the Colorado Supreme Court has previously worked at a firm that has represented Colorado PERA for many years, and was a colleague (and a shareholder at the firm while PERA was a client) of the long-time party lawyer who represented Colorado PERA in the current lawsuit, Justus v. State.
Finally, I recognize that in 2009, the Colorado PERA Board of Trustees hired a former Colorado Supreme Court Justice to draft a legal memorandum that would support PERA pension contract breach. For some reason, the Colorado PERA Board sought out this former Colorado Supreme Court Justice (who is not a specialist in public pension law) rather than seeking out an attorney who has spent a lifetime in a public pension legal practice.
Why did the PERA Board seek out this former Colorado Supreme Court Justice, whose practice does not specialize in public pension litigation? Why seek out this former Colorado Supreme Court Justice in lieu of an attorney with decades of experience in public pension litigation, such as Cindy Birley, a proponent of the PROSPECTIVE pension reform bill, SB12-149 adopted by Colorado Legislature in 2012?
In 2009, the PERA Board hired this judicially connected (and accomplished) former Colorado Supreme Court Justice to create a legal rationale by which the Board and their union collaborators might seize assets that belong to PERA pensioners. It is incomprehensible that this former Supreme Court Justice chose, at the end of an impressive legal career, to be part of a scheme to break public employee contracts.
See this article:
When the Colorado PERA Board hired former Colorado Supreme Court Justice Dubofsky to create a PERA contract breach rationale did they disclose to her the fact that PERA's own representatives identified the PERA COLA benefit as a contractual PERA liability at the inception of the "automatic" PERA COLA benefit? That is, did PERA fully inform their hired attorney? If so, why have PERA's current attorneys shifted from their original "actuarial necessity" legal defense strategy espoused after receipt of the Dubofsky COLA-taking product, to their current "DeWitt-based" legal strategy? Why are they now ignoring the Dubofsky memorandum? For that matter, why are they ignoring the legal writings of their own current Executive Director and former General Counsel Greg Smith on the contractual nature of PERA pension benefits?
March 24, 1993 (1:32 PM – 2:28 PM)
Rob Gray, Director of Government Relations, Colorado PERA testifying to the Legislature's House Finance Committee in regard to the "automatic" PERA COLA benefit under consideration [in House Bill 93-1324]: “The PERA Board does support this bill.” “We felt like it is something that is good pension policy . . . that it makes sense . . . THAT IT IS MAKING PERMANENT CHANGES, and also that it does help employers which is one of the goals of the bill.” Rob Gray states that the proposed COLA "adds predictability for current and future retirees, people looking at leaving might look at this and say now I know how my future increases are going to be determined . . .”. Rob Gray characterizes the "automatic" PERA COLA benefit as a Colorado PERA liability: “when a change in benefits is added, like this bill, it extends out the period for paying off that unfunded liability.” If you listen to the recording of this meeting, you will also hear a member of the House Finance Committee refer to the Colorado PERA COLA provision under consideration as a pension benefit that is “guaranteed,” “now and in the future.” [Note that the contracted PERA COLA benefit adopted by the committee was in later years improved by the Colorado General Assembly to flat 3.5 percent level, constitutionally permissible as this "improvement" did not impair PERA pension contracts.])
In 2012, the Colorado Legislature adopted PROSPECTIVE, legal pension reform for Colorado county governments (administrative arms of the state.) The bill, SB12-149, allows Colorado county governments to alter THE RATE OF FUTURE ACCRUAL of pension benefits in order to shore up county pension trust funds. The Colorado Legislature is perfectly capable of adopting similar legislation that will apply to Colorado PERA, shoring up the PERA Trust Fund without retrospectively impairing existing PERA pension contracts.
Why was such PROSPECTIVE pension reform legislation not adopted for the Colorado PERA pension system in 2010? This PROSPECTIVE pension reform legislation was not adopted in 2010, because it was not the POLITICAL PREFERENCE of PERA pension administrators and board members, hired PERA lobbyists, union lobbyists, some conservatives who were happy with any PERA pension cut, as well as corporate lobbyists glad to jump on the PERA contract breach bandwagon.
For all of these reasons, I expect that the Colorado Supreme Court will closely adhere to established Colorado public pension jurisprudence in this case, Justus v. State.