The State of Colorado and a state agency (Colorado PERA) are currently attempting to escape obligations to which the state and many Colorado local governments are contractually bound. Oral arguments in the resultant lawsuit, Justus v. State, will be heard by the Colorado Supreme Court in approximately two weeks. The State of Illinois, having adopted similar legislation abrogating contractual public pension rights, was recently enjoined from enforcing its own constitutionally suspect legislation.
As I have read court documents in the Illinois public pension lawsuit (the Complaint, and the Memorandum in Support of an Injunction) a number of recommendations for the Colorado PERA Board of Trustees have come to mind.
I provide my list of recommendations to the Colorado PERA Board below, as well as excerpts from the Illinois' pension case Complaint (and the Illinois Memorandum in Support of an Injunction) that I find pertinent to Colorado's public pension litigation in the case, Justus v. State.
My recommendations to the Colorado PERA Board of Trustees:
Do not ask Colorado's Judicial Branch to sully Colorado's foundational document in order to conceal Colorado Executive Branch and Colorado Legislative Branch pension mismanagement.
Take responsibility for the past mistakes of the Colorado PERA Board and PERA administrators. Do not ask Colorado's Judicial Branch to endorse breach of contract, or to ignore precedent and on-point Colorado public pension case law in order to conceal PERA's skeletons.
(Public pension attorney Robert Klausner: ‘The belief is that if the employer [the state] prevails, it will have been worth the political risk,’ Klausner says. ‘And if they lose, they will be no worse off than before.’ Klausner adds that legislatures are . . . letting the courts be the ‘bad guy’ if they overturn the law.”
Allow legislation impacting the Colorado PERA pension system to be initiated by state legislators who oversee the pension system after extensive interim study. Do not use PERA's lobbyists (internal or external) to place language into statute "outsourcing" this oversight function to the PERA Board.
Stay out of politics. Do not allow the PERA trust funds to be used for political purposes such as business loan programs. Do not strive to develop political and judicial relationships. Eliminate the advocacy of public policy positions from Colorado PERA publications. Eschew all outside influence from special interest groups and attorneys with connections to those special interests. As trustees overseeing Colorado PERA administrators, refuse to authorize any political activities of these administrators while acting in an official capacity.
Adopt the posture of educating the members of the Colorado Legislature regarding public pension administration and contractual obligations rather than one of lobbying the Legislature for specific outcomes. Many U.S. public pension systems function perfectly well without paying hundreds of thousands of dollars each year to lobbyists. Consider eliminating the lobbying function of Colorado PERA in its entirety, and simply responding to legislative requests for information through a liaison.
Do not ask Colorado state legislators to violate their oaths of office in order to compensate for, or conceal, past PERA Board mistakes or legislative mismanagement.
When hiring outside attorneys to investigate the constitutionality of contemplated PERA system legislation, favor attorneys who have spent a lifetime in public pension jurisprudence, rather than attorneys who may have limited experience in the legal subject, but offer political or judicial influence.
Develop a sound legal strategy prior to Board action that will result in expected litigation, and stick with that strategy throughout the course of the litigation. This will allow for consistent legal representation during the litigation. Ask PERA's legal representatives if they have previously written legal briefs contravening legally questionable legislative proposals that the board has under consideration.
I give credit to the Colorado PERA Board of Trustees for their 2009 attempts to initiate submission of interrogatories to the Colorado Supreme Court regarding the constitutionality of the contemplated PERA pension system "reform" legislation. For some reason, the politicians in control at the time refused this PERA Board request. However, the PERA Board could have, in turn, refused to participate in the continued marketing, political and lobbying effort for SB10-001 unless Legislative Leadership requested that such interrogatories be submitted to the Colorado Supreme Court. Apparently, political considerations induced the board to drop its insistence on the submission of interrogatories in 2009. Why did Colorado's Legislative Leadership have no desire for direction from the Supreme Court on the constitutionality of the proposal?
Be skeptical when outside stakeholders with obvious financial interests in legislation encourage the Board to endorse constitutionally suspect legislation. Further, be skeptical regarding recommendations that come from PERA's own legal department.
Recognize the historical failures of the PERA Board of Trustees. The Board has failed to insist that the Colorado General Assembly meet its obligation to pay each year's actuarially required PERA pension system contributions. The Board's assumption that the placement of PERA employer and employee contribution rates in statute was sufficient, and that annual supplemental appropriations to meet PERA contractual obligations were unneeded was folly. The Board should endeavor to remedy this situation through regular reports to legislative oversight committees regarding the General Assembly's current PERA pension ARC obligations.
(The federal public pension regulatory agency, GASB, has adopted new public pension reporting requirements that will place the focus of pension plan sponsors on total pension liabilities of affiliated employers. Do not use this pending change of emphasis on the part of GASB as an excuse for historical PERA pension system underfunding. The argument is weak. The PERA pension system has not paid its bills for a decade, ensure that PERA actuarially required contributions are made each year in the future.)
Do not attempt to shift market risk onto vested PERA members who bear no market risk under their pension contracts.
When PERA-affiliated employers claim an inability to meet their contractual obligations perform due diligence. For example, with little effort Board members might have discovered in 2009 that the PERA-affiliated employer, the State of Colorado, has given away many billions of dollars in potential tax revenue in the last two decades in the form of business subsidies, and has voluntarily cut its revenue stream. This knowledge might have induced the board to give little credence to any claims of "poverty," or an inability to meet state contractual pension obligations over the coming three to five decades.
Do not attempt to remedy past PERA Board asset allocation errors (i.e., alternative investment errors) and consequent losses to the PERA trust funds through constitutionally suspect legislation. Identify and take responsibility for past Board investment errors.
Do not attempt to remedy past board policy errors that have cost the system billions of dollars (e.g., the unanimous PERA Board endorsement of former Colorado Governor Bill Owen's "service credit fire sale" proposal) through constitutionally suspect legislation.
As fiduciaries, act to protect the contractual rights of PERA annuitants.
Excerpts from the Illinois Plaintiff's Memorandum in Support of Their Motion for a Temporary Restraining Order and Preliminary Injunction:
Plaintiff's Memorandum, Page 7:
"In contravention of that constitutional promise, welching on pension obligations is precisely what the State seeks to accomplish through the Act."
(My comment: November 18, 2004, Colorado Attorney General Ken Salazar's Opinion [post-DeWitt]: "Once a PERA member fulfills all the statutory requirements for a pension benefit and retires, the member’s fully vested pension right cannot be reduced by the General Assembly."
Plaintiff's Memorandum, Page 8:
"Presently, the Pension Code provides that retired members of SERS, SURS and TRS receive each year a 3% automatic annuity increase, compounded annually."
(My comment: Note that both the pension COLA benefits taken by the Illinois Legislature and those taken by the Colorado Legislature are "automatic" pension COLA benefits, i.e., non-discretionary pension COLAs. Discretionary public pension COLA benefits, known as "ad hoc" COLA benefits may be paid each year at the discretion of the pension plan sponsor. Colorado PERA officials have identified the Colorado PERA COLA benefit as an "automatic" COLA benefit on numerous documented occasions.
Note the position of the Ritter Administration in a letter to the federal pension regulatory agency GASB relating to contractual public pension obligations:
“The criteria suggested as the basis for differentiating these COLAs [automatic] versus ad-hoc COLAs is the statutes that exist as of the date of the employer’s financial statements.”
“The essential difference between an automatic COLA and an ad hoc COLA is the legal requirement; with this core difference there is no way for the two not to be substantively different. The legal difference in this instance is critical to the determination of whether the government is unable to avoid the surrender of resources to meet the obligation.”
“COSC agrees that an obligation exists since the government entity has entered into a duty, contract, or promise to provide compensation in the form of benefit payments during retirement; and furthermore, we agree that this obligation is a present obligation to the extent that the benefits owed have already been earned through past services, and are legally enforceable once vesting provisions have been met.”
"At this juncture, there is no practical way to ascertain with precision the number of employees who already have retired and who are considering retiring in an effort to avoid at least some of the Act's unlawful diminishments and impairments, or because of confusion as to how those diminishments and impairments will impact them."
Plaintiff's Memorandum, Page 12:
"This legal uncertainty will irreparably harm certain longtime employees who would prefer not to retire this year but who, as a practical matter, will be forced to do so. If the courts eventually determine that the new pension law is unconstitutional, all of the nonvoluntary retirements from the university will have been unnecessary."
(My comment: No such injunction was granted in Colorado. Irreparable harm from the enactment of SB10-001 has already occurred. This sustained harm is now part of the legacy of Colorado state government. In 2010, Colorado PERA trustees allowed self-interested groups to disrupt the lives of thousands, irresponsibly inflicting enormous harm.)
Plaintiff's Memorandum, Page 15:
"Illinois courts uniformly hold that a public pension system member has a vested right to receive the pension benefits that existed when she or he entered the system, plus any enhancements subsequently provided under the pension code."
(My comment: October 11, 2012, Colorado Court of Appeals 2012 decision in Justus v. State,
“We 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.”
Plaintiff's Memorandum, Page 16:
"As a result, if an action is taken because of the impairments and diminishments for which the Act provides, only to learn subsequently that the Act is held unconstitutional, that action will have irreparable consequences. No person should have to make important life choices regarding employment, retirement and retirement security under that cloud of uncertainty. That is the very essence of irreparable harm."
Plaintiff's Memorandum, Page 19:
"State employees and teachers have held up their end of the constitutionally-protected pension promise and relied on that promise for retirement security. The State seeks to renege on that promise through the Act."
(My comment: August 14, 1984, Colorado Attorney General Duane Woodard in an Opinion of the Attorney General: “In resolving this question, I am guided by the cardinal principle that ambiguities in statutes regulating pension and retirement funds are to be construed in favor of the employee"
Plaintiff's Memorandum, Page 28:
" . . . the Act imposes changes to the pension systems that diminish and impair pension benefits in many ways, including reduction of automatic annuity increases; automatic annuity increase
skips . . ."
"Each of those changes to the pension code standing alone, let alone in concert, renders the Act unconstitutional and void."
Plaintiff's Memorandum, Page 29:
"Senator Hutchinson noted for her colleagues that a General Assembly member's vote in favor of the Act would abdicate the oath to uphold the Constitution that each member took . . ."
"Jorgensen v. Blagojevich: '[n]o principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem,' and holding that the Illinois Constitution prohibited the State from diminishing COLAs that Illinois judges were entitled to receive as part of their compensation . . ."
"People ex rel. Lyle v. City of Chicago . . . stating that '[n]either the Legislature nor any executive or judicial officer may disregard the provisions of the Constitution even in case of a great emergency,' and holding that even during the Great Depression, the City of Chicago had to pay municipal judges' salaries during their terms of office . . ."
"Ross v. Nlay Co. . . . noting that valid modification of a contract requires mutual assent and consideration, and holding that new benefits an employer unilaterally extended to employee were not sufficient consideration for modification of employment agreement because 'there was no bargained-for exchange, and no promises were made where [the employee] agreed to relinquish his contractual rights in exchange for the new benefits . . .'"
(My comment: March 5, 2011, Eric Madiar: "Is Welching on Public Pension Promises an Option for Illinois?" “In sum, welching is not a legal option available to the State.” “Courts, though, “sit to determine questions on stormy as well as calm days,” and the Constitution was upheld during the Great Depression.”
Plaintiff's Memorandum, Page 32:
"The public interest favors constitutional rights remaining inviolate at all times, good and difficult. See People ex rel. Lyle Legislative acts that violate an express Constitutional limitation are an affront to Illinois citizens, undermine the rule of law and damage confidence in the State government."
Plaintiff's Memorandum, Page 51:
Illinois Senator Hutchinson (from legislative hearing transcript):
"And if we don't respect the basic modicum of contract law, then we have a whole lot of other problems that we have to solve. Like maybe we could just rewrite all those underwater mortgages. Those are contracts. Last time I checked banks and chambers didn't want us to do that . . . "
(My comment: Note that lobbyists for the Colorado business association, Colorado Concern, lobbied for enactment of SB10-001, according to the records of the Colorado Secretary of State.
Note that the state's Budget Director, Henry Sobanet, formerly consulted for Colorado Concern, and was according to CASB, "intimately involved" in developing SB10-001. Note that John Ikard, President and CEO, FirstBank at the time, was a member of the Colorado Concern Board.
As a member of the Colorado Concern Board, did Ikard vote to authorize Colorado Concern lobbyists to lobby for the enactment of SB10-001 at the Colorado Legislature? The entire business of banking in the United States rests on the sanctity of contracts.)
Link to Memorandum:
Illinois We Are One Complaint, Page 2:
"Plaintiffs bring this action to correct the abdication by the Governor and General Assembly of the State of Illinois . . . of their most fundamental duty, to uphold the Illinois Constitution. In failing to fulfill that duty, the Governor and General Assembly unlawfully harm hundreds of thousands of current and retired State employees and teachers and breach the trust that all Illinois citizens place in them."
"The State chose to forgo funding its pension systems in amounts the State now claims were needed to fully meet the State's annuity obligations. Now, the State expects the members of those systems to carry on their backs the burden of curing the State's longstanding misconduct. Specifically, Public Act 98-0599 unlawfully strips from public servants pension amounts to which they otherwise are entitled as a matter of law, let alone fundamental fairness."
(My comment: Colorado PERA’s General Counsel Greg Smith blames the Colorado General Assembly for PERA’s fiscal downturn: “We have not been paid what’s called the actuarially required contribution.” “We’ve not been receiving that full contribution in any of our divisions for many years . . . seven years to be specific.”
Complaint, Page 5:
"Both retired and current State employees rely for retirement security on the full pension payments the State has promised. Personal financial commitments and planning based on the State's promise —often years in the making —now are in jeopardy."
(My comment: PERA Retiree Sue Ellen Quam at the Colorado PERA Denver "Listening Tour" in 2009: "I was a legislative liaison for many, many years. I sat in the Joint Budget Committee for many, many years, and I remember legislators saying ‘You know, you don’t get very good salary increases and your benefits really stink, but you’re gonna get a really good retirement and so just hang in there.” “So, I find it to be discouraging that the Legislature may be considering saying, ‘We got you on your salary, we got you on your benefits, and now we’re going to get you on your retirement.” “I’ve heard rumors that the 3.5 percent increase may be reduced or eliminated and that it’s OK with PERA members. It’s not OK with this PERA member.”)
Complaint, Page 19:
"At base, this litigation concerns an ethical and moral promise to provide a certain level of retirement security for the women and men who chose to serve Illinois and its citizens."
"The majority of Illinois' public employees in State retirement systems are not eligible to receive Social Security, including all employees who are members of TRS and SIJRS and many' SERS members. For many individuals, their State pension is their life savings and is all that that stands between them and poverty."
(My comment, May 29, 2011, Colorado PERA Executive Director Meredith Williams, Pueblo Chieftain:
“Most PERA beneficiaries don’t qualify for Social Security so their modest PERA benefit may be the only steady retirement payment they’ll ever receive. After careers in public service, this is a reasonable reward. They have earned it.”
Complaint, Page 21:
"The pensions that Illinois' public servants receive are not mere gratuities. In addition to the work each pension system member performs while serving Illinois and its residents, members contribute a substantial portion of their paychecks to their pensions."
(My comment: Note that the nationally recognized public pension attorney, Joseph Marcucci, uses Colorado's on-point public pension case law to illustrate a "clear demarcation" of public pension gratuity theory and contract theory. The Colorado Constitution prohibits the payment of "gratuities," thus the statutory PERA COLA benefit cannot be a gratuity.
June 23, 2010, Nicholas Joseph Marcucci, Emeritus Board Member at the National Association of Public Pension Attorneys, “Constitutional Issues When Altering Public Pension Benefits”: “In most states there is a fairly clear demarcation between the gratuity theory and the contract theory and a seminal case or two where the courts make the change. Police Pension and Relief Board of the City and County of Denver, et al. v. McPhail, 39 Colo. 330, 338 P.2d 694 (1959); and, Police Pension and Relief Board of City and County of Denver, et al., v. Bills, et al.” [To access this Word document, paste "Constitutional Issues When Altering Public Pension Benefits Marccuci" into Google.])
Complaint, Page 26:
" . . . the State added the compound component in an effort to stave off some of inflation's impact diminishing the value of a member's pension and to create for members with lesser pension amounts at least some hedge against poverty that inflation may cause."
"Moreover, the compounded automatic annuity increase is a benefit for which most members have paid."
"Now, however, those contributions are for naught. Through its enactment of Public Act 98-OS99, the State is set to undermine the retirement security it constitutionally promised and for which Plaintiffs and the class they represent paid through work and salary contributions."
(My comment, 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.])
Complaint, Page 27:
" . . . Public Act 98-0599 diminishes and impairs the annual automatic annuity increase to which each SERS, SUBS and TRS member is entitled, whether the member already is retired or hereafter retires."
Complaint, Page 29:
"Stated otherwise, the degree of diminishment and impairment caused by the change in the pension formula will increase with each passing year."
Complaint, Page 30:
"As with the change in the formula used to calculate the automatic annual increase itself; the degree of diminishment and impairment to a pension system member's benefits caused by skipping one or more automatic annual increases will increase. with each passing year."
(My comment: August 2, 2010, Ritter Administration Letter to GASB on contractual public pension obligations:
“In Colorado, a class action lawsuit has been filed challenging recently passed statutory reductions in annual COLA increases which for an average member would result in $165,000 of reduced benefit over a 20 year period.”
Complaint, Page 33:
"Illinois history is replete with the successive failures of the Illinois General Assembly and Governor to make payments to the State pensions systems for which Illinois law called. For years, led by successive Governors and members of the General Assembly, including many currently in office, the State has failed to pay an actuarially-sufficient amount to fund its pension systems. All along, the State and its elected officials did so knowing that they were shortchanging the pension systems, cheating Illinois' public servants and violating the public trust."
(My comment: Colorado PERA Executive Director Meredith Williams, February 23, 2012, testimony to the Colorado House Finance Committee relating to the Legislature’s historical underfunding of its PERA pension obligations, i.e., the failure of the Legislature to ensure payment of the ARC through appropriate statutory contribution rates, or supplemental appropriations):
“We’ve had a significant problem over the years, in that . . . contributions, payments by [PERA] employers into PERA have been kind of the last thing in the budget building process, and we have not made the required payments. Unfortunately, in our line of work, where we’re involved in compounding shortfalls grow, particularly when the shortfalls continue year after year after year.”)
Complaint, Page 46:
"The State's unilateral diminishment of its contractual obligations and impairment of the pension benefits and rights of the Representative Plaintiffs and the members of the Class . . . is an illegal exercise of its sovereign powers."
"Each Representative Plaintiff and each Class Member has satisfied her or his obligations under her or his respective pension system contract. The same cannot be said for the State."
Complaint, Page 48:
"The State, in contrast, has not complied with its contractual obligations under those contracts."
"That diminishment and impairment violates the Contracts Clause of the Illinois Constitution. Specifically, the Contracts Clause instructs that the State shall pass no law that impairs the State's contractual obligations: 'No ex post facto law, or law impairing the obligation of contracts or making an irrevocable grant of special privileges or immunities, shall be passed."
"But Public Act 96-0599 materially, substantially and unilaterally diminishes and otherwise impairs the pension amount and other retirement benefits to which each Representative Plaintiff and each Class Member contractually is entitled."
"The State's impairment of its contractual obligations to the Representative Plaintiffs and the Class Members is neither reasonable nor necessary to advance a legitimate public purpose. The State's longstanding, deliberate and willful failure to fund each of SERS, SUBS and TRS with an actuarially-sufficient amount has caused the purported problem it now tries to remedy through Public Act 98-0599. And, the State has other options by which it could remedy the situation it purports to address through enactment of Public Act 98-0599 – options that do not impair its contracts with the Representative Plaintiffs and the Class Members."
(My comment: August 13, 2005, Colorado PERA Executive Director Meredith Williams, "The liabilities of the system, frankly, will be paid out over multiple decades, and we're talking 70 or 80 years. We're kind of designed for the long haul and we know we're going to experience ups and downs in the marketplace."
Complaint, Page 50:
"The Takings Clause of the Illinois Constitution instructs: Private property shall not be taken or damaged for public use without just compensation as provided by law."
"The State has not offered the Representative Plaintiffs or Class Members consideration that would justly compensate them for the impairment and diminishment of their pension benefits."
(My comment: From McPhail, “Here the contract was set forth in the basic law and the rights were acquired following 25 years of faithful service during which time the plaintiffs paid an actual and regular consideration.”)
Complaint, Page 52:
"Each Representative Plaintiff and Class Member has a private, vested contractual right to, and a legitimate expectation that she or he would receive, upon retirement the pension amount and other retirement benefits for which the Pension Code provided when she or he first became a member of her or his respective State retirement system as well as any increase in or other improvements to those benefits. The Representative Plaintiffs and the Class Members rely on those benefits as security in retirement."
"Of course, the State has had the power, authority and ability to adequately fund each of SERS, SUBS and TRSand it still does. By voluntarily choosing not to, and now claiming that it will not adequately fund those State pension systems absent implementation of (the public act)and other retirement benefits she or he would otherwise receive . . ."
(My comment: June 3, 2003, Colorado PERA Executive Director Meredith Williams, CAFR Summary to Members, 2002, 5/21 [REV 6/03]: “PERA directs its efforts at keeping the funding ratio, [the ratio of assets to accrued liabilities] for the three divisional retirement funds at a minimum of 80 percent. A funding ratio over 80 percent is considered good.”
Complaint, Page 53:
"The State cannot avoid its unconstitutional taking of the private property of each Representative Plaintiff and Class Member by further breaking the law. In other words; the State cannot avoid the ramifications of its unlawful conduct through enactment and application of the Public Act 98-0599, which itself is unconstitutional."
Complaint, Page 55:
"PLAINTIFFS DEMAND A TRIAL BY JURY ON ANY ISSUES WHICH ARE, OR MAY BECOME, TRIABLE BY JURY."
Link to the original Illinois We Are One Complaint:
Finally, in regard to the Illinois Legislature's attempted breach of public pension contracts:
“ . . . a short-lived pension reform that is invalidated by court order after protracted litigation . . . would be a disservice to the taxpayers.”
Gino L. DiVito, Tabet DiVito & Rothstein LLC, Chicago, ILL
Support public pension contractual rights at saveperacola.com.