In 2010, a majority of the members of the Colorado General Assembly unaccountably reached the conclusion that our foundational documents, the Colorado Constitution and the United States Constitution, in no way restricted their legislative powers.
With the вЂњencouragementвЂќ of 17 statehouse lobbyists, this majority of Colorado legislators discerned a caste of Coloradans that based on certain characteristics вЂ“ perhaps age, or status as former public employees вЂ” did not merit the equal protection of the law.В Here we have a subclass of Coloradans, the politicians concluded, whose constitutional rights might be abridged without consequence . . . whose property might be seized with impunity.
In 2010, lobbyists and legislators alike targeted the fully-vested public pension contracts of Colorado PERA retirees.В If the state of Colorado was in the midst of such a financial crisis in 2010 that the breach of state contracts was warranted, where were the General AssemblyвЂ™s proposals to breach the stateвЂ™s corporate contracts?В Was it simply understood that ColoradoвЂ™s corporate debt takes precedence over its public pension debt?В A well-known public pension rights attorney has been quoted in the press: вЂњThey’re just saying, вЂLet’s go after the public workers,вЂ™ Pincus says. В If there is a real general threat to the financial well-being of a state or local government, then everything should be on the table, not just one set of contracts.вЂќ
It occurred to many Colorado legislators in 2010 that, although they have provided Colorado taxpayers with the lowest per capita state tax burden in the nation, this tax burden might be further reduced by shifting the stateвЂ™s common debt onto the backs of this relatively small group of pensioners.
In 2010, the Colorado General Assembly enacted SB 10-001 breaching Colorado PERA retiree public pension contracts.В Complicit in the contract breach were self-interested public sector unions, as well as public pension administrators armed with an agenda . . . and an annual $400,000 statehouse lobbying budget.В (Of course, this lobbying budget is taken from the trust funds of the retirees whose contracts were to be breached.В Tidy.)
The unions recognized an opportunity to reduce the obligations of their current, DUES-PAYING members by attempting to shift public pension costs onto retirees.В Union and Colorado PERA officials succeeded in brainwashing a few naГЇve PERA pensioners by disingenuously applying the idea of вЂњshared sacrificeвЂќ to the stateвЂ™s contractual relationships.В Having duped this handful of PERA pensioners, they proceeded to abrogate the accrued, vested public pension rights of ALL PERA retirees.В They violated the trust of former public employees, and seized their earned, deferred compensation.В (As an aside, I recently inquired at my local bank about the possibility of obtaining a вЂњshared sacrificeвЂќ from the bankвЂ™s vaults . . . they declined.)
Somehow, a majority of Colorado legislators became convinced in 2010 that shifting the obligations of Colorado PERA-affiliated employers and taxpayers onto the backs of PERA retirees with fully-vested statutory contracts was appropriate . . . that forcing вЂњ90 percentвЂќ of the cost of their вЂњpension reformвЂќ proposal (SB 10-001) onto PERA pensioners was their legislative prerogative.
The 17-member SB 10-001 lobbying troop pointed out an easy mark . . . a group of elderly, unorganized, unrepresented pensioners . . . absent from the lobbies of the Capitol.В The bulk of these PERA retirees are rightly focused on enjoying their remaining years after serving Colorado governments for three or more decades.В Some of these PERA retirees are in no position to defend their rights at the Colorado Capitol. В Many are ill, hospitalized, distracted by chronic pain . . . they offered little resistance.В Most reprehensible of all was the stateвЂ™s taking of contracted benefits from such PERA retirees.
Instead of uniting with retired public workers to defend all worker rights, the natural allies of Colorado PERA retirees вЂ“ ColoradoвЂ™s public sector unions вЂ“ perpetrated the greatest act of treachery by union officials and lobbyists in the history of the U.S. labor movement.В They supported the breach of the contracts of their union brethren.В This claim of unprecedented treachery is not hyperbole . . . no record of a more egregious act of treachery exists in the history of the U.S. labor movement.
What regard did ColoradoвЂ™s public sector unions show their retired union вЂњbrothers and sistersвЂќ in 2010?В the workers who toiled at their side for many years?В What recognition did the Colorado General Assembly have for these workers?В Just this: a swift kick in the teeth.
From the Colorado Constitution:
вЂњEach member of the general assembly, before he enters upon his official duties, shall take an oath or affirmation to support the constitution of the United States and of the state of Colorado . . .вЂќ
The Colorado LegislatorвЂ™s Oath of Office (Colorado Secretary of State):
вЂњI do solemnly swear by the everliving God, that I will support the Constitution of the United States and of the State of Colorado, and faithfully perform the duties of the office of upon which I am about to enter.вЂќ
From the Colorado Constitution:
вЂњNo ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.вЂќ
From the 2004 Colorado Attorney General Opinion:
вЂњOnce a PERA member fulfills all the statutory requirements for a pension benefit and
retires, the memberвЂ™s fully vested pension right cannot be reduced by the General Assembly.вЂќ
Clear Colorado public pension case law was on the books in Colorado at the time of the Colorado PERA pension contract breach.В The Colorado Supreme Court concluded in McPhail:
вЂњ . . .we believe that in a case, such as that before us, involving contributory system it is the only reasonable conclusion that can be reached (the contract principle.)вЂќ
вЂњIt would be unjust and contrary to our basic notions concerning the validity of contracts to hold that this provision could be changed by the lawmakers.вЂќ
вЂњWe conclude that the (Colorado constitutional Contract Clause) applies to the status of the plaintiffs here and prevents the enforcement of the (Denver Charter Amendment) against them.вЂќ
From the Colorado Court of Appeals 2012 decision:
вЂњWe consider McPhail and Bills dispositive (indisputably bringing to a conclusion a legal controversy) of whether plaintiffs here have a contractual right to a particular COLA.вЂќВ In the cases McPhail and Bills, the Colorado Supreme Court вЂњfound a contractual right based on membersвЂ™ provision of services and contributions to the retirement fund.вЂќ
In light of all this, please explain how it is possible that state legislators who supported SB 10-001 in 2010 have avoided violation of their oaths of office.
In 2010, our Colorado General Assembly:
-В cavalierly abandoned the rule of law in our state;
-В exhibited an indifference to moral, and legal restraints on its actions;
-В disregarded an on-point Colorado Attorney General opinion relating to contractual public pension rights;
-В В ignored an opportunity to seek guidance from the Colorado Supreme Court (through an interrogatory) relating to these contracted rights;
-В В disavowed unmistakable, adverse Colorado legal authority, relating to public pension rights;
-В В failed to ask its own attorneys for legal guidance prior to breaching public pension contracts;
-В В summarily rejected legal, prospective, вЂњless drasticвЂќ alternatives to the breach of public pension contracts (that are being adopted across the nation);
-В В abdicated its public policy-making authority to the lobbying corps;
-В В ignored its historical underfunding and mismanagement of the Colorado PERA pension;
-В В disregarded its complicity in creating the вЂњproblemвЂќ it uses to justify pension contract breach;
-В В revealed its hypocrisy by placing a 100 percent funding threshold into pension reform legislation in light of its own past policies of underfunding the PERA pension and the fact that such a threshold is unnecessary;
-В В exhibited a desire to inflate away legitimate government debts through seizure of contracted pension COLA benefits;
-В В demonstrated a lack of good faith and fair dealing with PERA pensioners;
-В В revealed an eagerness to вЂњchange the ground rules in the middle of the game;вЂќ
-В В disingenuously characterized market volatility as justification for breaching fully-vested public pension contracts;
-В В revealed a casual preference to welch on the public debt, and most repugnant of all,
-В В betrayed the trust of Colorado PERA pensioners who have held up their end of the bargain.
Colorado is better than this.
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