March 09, 2013 09:20 PM UTC

The Author of Colorado PERA's SB10-001 (COLA-Taking) Legal Opinion is an Education Advocate . . . a Former Colorado Supreme Court Justice.

• 3 Comments
• by: PolDancer

In 2010, the Colorado General Assembly enacted legislation that attempts a retrospective taking of accrued public pension cost-of-living (COLA) benefits.  The bill that proposes to claw back these contracted pension benefits from retirees was supported by Colorado’s pension administration arm, Colorado PERA.  That bill, SB10-001, was also supported by Colorado’s public education establishment and teachers’ unions.  In my opinion, the consensus of Colorado’s education establishment in 2010 was that a successful breach of Colorado PERA statutory COLA contracts would free up more money for public schools in the state and also limit the increases in Colorado PERA member contributions that were required to meet Colorado PERA unfunded pension liabilities.

Raising education funding is a worthy objective, but it should be accomplished through state and local government ballot issues, rather than through the breach of state pension contracts.  The desired breach of Colorado PERA pensioner contracts was self-serving on the part of Colorado’s education establishment.  Colorado PERA retirees were, in essence, considered a new source of funding for public school administrators and educators.  If Colorado PERA retiree contracts could be broken, needed efforts to persuade Colorado voters to approve new education resources would be accordingly diminished.

Now, advocacy of public education is commendable.  I am also an advocate of Colorado public education.  Personally, I am willing to double (or triple!) the amount of support I provide through taxes to public education in Colorado.  However, I will not support Colorado public education at all costs.  I will not support the breach of Colorado’s contractual obligations, or violation of provisions of Colorado’s constitution, in order to garner new resources for education in our state.

In 2009, Colorado PERA officials told us that the Colorado PERA Board of Trustees had ordered a legal opinion that sought legal justification for the breach of Colorado PERA pension COLA statutory contracts.

On December 17, 2009, the Colorado General Assembly’s Joint Budget Committee (JBC) met with representatives of Colorado PERA.  At that meeting, Colorado PERA’s General Counsel Greg Smith informed the JBC that Colorado PERA had hired an outside law firm to provide a legal opinion relating to Colorado PERA contractual pension obligations:

3:51 PM – Greg Smith – “We have obtained outside counsel’s opinion on this issue.”

This December 17 meeting is one of a number of instances in which Greg Smith has made reference to Colorado PERA’s “outside” legal opinion addressing Colorado PERA employer contractual public pension obligations.  This “outside” legal opinion was the foundation of Colorado PERA’s SB10-001 legal, lobbying and political campaigns.  It appears that the author of this “outside” Colorado PERA legal opinion is none other than former Colorado Supreme Court Justice and public education advocate Jean Dubofsky.

Former Colorado Supreme Court Justice Dubofsky notes on her resume that, at the request of Colorado PERA, she provided a legal opinion to PERA in 2009 arguing that the Colorado Legislature could legally take Colorado PERA retiree pension COLA benefits:

“at request of PERA (Public Employees Retirement Association) in 2009, provided legal opinion that general assembly could repeal automatic 3% cost-of-living adjustment for retirees without violating their vested rights; and

Link to Jean Dubofsky’s resume:

http://lawweb.colorado.edu/files/vitae/dubofsky%20.pdf

Jean Dubofsky also notes in a deposition submitted to the Colorado PUC that she is the author of a legal opinion addressing the legality of reducing the PERA COLA benefit:

“My most recent legislative experience (within the past two years) is  . . . a legal opinion addressing the constitutionality of reducing the cost-of-living increase for PERA recipients.”

(To access this document, paste “Colorado PUC E-filing system PERA legal opinion Jean Dubofsky” into Google.)

Why would the Colorado PERA Board of Trustees rely on a legal opinion relating to the contractual nature of public pension benefits from a law firm that does not specialize in public pension law?  Yes, Jean Dubofsky is a talented attorney, but she has not spent a lifetime in employee benefits law.

For many years, Jean Dubofsky has been involved with advocacy for Colorado public education.  Indeed, Jean Dubofsky is a founding member of an organization that provides Colorado public education advocacy:

“Former Colorado Supreme Court Justice Jean Dubofsky, a founding member and current chair of the Board of Directors of the Bell Policy Center . . .”

Link:

http://bellpolicy.org/taxonomy/term/1742

The Bell Policy Center advocates on behalf of public education in Colorado:

“To make Colorado a land of opportunity for all in the 21st Century, we have to start with education. Our top priority must be preparing our kids to be good citizens and to compete and prosper in a global economy.”

Link:

http://bellpolicy.org/node/12

Jean Dubofsky:

“There are a couple of public policy groups in Denver – one called the Bell Policy Center, of which I was one of the founding members. It was designed to develop policies that were more progressive for state legislators and local government in the state. They're still doing it.”

“They do an annual report, and then they work on a lot of legislation and draft a lot of legislation.”

“The other group is the Center on Law and Policy, and it was an outgrowth of the legal services work that I had done before the legislature – taking clients to the legislature and trying to get bills passed.”

http://bellpolicy.org/content/jean-dubofsky-public-policy-groups-matter

“Bell also tracks state legislation affecting K-12 and higher education. For more information, visit our Education issues page.”

https://bellpolicy.org/content/about

“We concentrate on issues affecting educational opportunity, economic opportunity, and health status.”

“Every child should have the opportunity to attend a quality public school.”

https://bellpolicy.org/content/frequently-asked-questions

“Colorado now spends less (on K-12 education) than the national average per pupil.”

“What more should Colorado do?”  “Ballot questions: The passage of Referendum C in 2005 is expected to bring approximately $1 billion more into the public schools by 2010 and to raise overall school funding by at least $250 million a year after that.”

http://www.bellpolicy.org/PUBS/annual/2005/G3Literacy.pdf

“The Daily Sentinel reports on the Bell's outreach tour in 2005 in support of Referenda C and D.”

http://bellpolicy.org/taxonomy/term/215?page=6

“To remedy that situation, the Denver-based Bell center has begun a statewide effort to convince voters to support Referendums C and D on this November’s ballot.”

“Referendum C asks voters to lift temporarily the TABOR revenue limits on the state budget — as is allowed under TABOR — and use that additional money for health care, public education and higher education and transportation projects.”

“Bell is engaged in an admirable undertaking to educate people about the critical impacts that will occur if Referendums C and D aren’t passed.”

http://bellpolicy.org/sites/default/files/PUBS/coverage/2005/05SentinelRefCedit.pdf

“Both efforts reflect our interest in and concern about education – especially Colorado’s poor record getting low income and minority kids to graduate from high school or enter and complete college.”

http://www.thebell.org/PUBS/comment/2005/12Agenda2006.pdf

Of the 27 lobbyists who supported SB10-001 in 2010, 15 lobbyists represented the educational establishment, and six of the lobbyists were paid directly by Colorado PERA.

Link to the Colorado Secretary of State’s Directory of Lobbyists by Bill for SB10-001:

http://www.sos.state.co.us/lobby/SubjectSearchResults.do?&cmd=passgo&pi1=1

“. . . the well-staffed higher education lobby is sure to be involved in this issue as well.”  “All that lobbying power will be focused on 100 legislators . . .”

Link:

http://statebillnews.com/2009/10/pera-woes-loom-large-for-education/

Jean Dubofsky also has a long history of representing the interests of Colorado PERA.  Thirty-eight years ago Dubofsky represented Colorado PERA as Deputy Colorado Attorney General in the case Taylor v. PERA.  The case was decided by the Colorado Supreme Court on November 17, 1975.  In their decision, the Colorado Supreme Court recognized Colorado PERA pension benefits as “vested rights,” and held that any ambiguities in Colorado public pension statutes are to be construed favorably toward the employee member of the pension system.  Here are a few excerpts from Taylor v. PERA:

“Prior Colorado cases were cited with approval, defining a retrospective act as one ‘. . . which takes away or impairs vested rights acquired under existing laws, or creates a new obligation . . . .’”

“There is no question that the retirement benefits payable to petitioner are a ‘vested right of which [she] cannot be deprived,’” (citing McPhail and Bills).

“We disagree with the view that these cases were based on the outdated rationale that government employee pensions are a gift, subject to whatever changes the lawmaker decides to make, rather than a right which becomes vested at the time of retirement.”

“Moreover, the fact that petitioner had certain pension rights at the time of retirement, in no way precludes post-retirement pension changes which increase rather than decrease benefits received thereunder.”

“In McPhail, supra, we stated that ‘. . . changes may be made in the pension system looking to strengthening and bettering it . . .’ as long as the vested rights of pensioners are not abridged or weakened.”

"As was noted in Endsley v. Public Employees' Retirement Association, 33 Colo.App. 416, 520 P.2d 1063 (1974), ambiguities appearing in statutes regulating pension and retirement funds are construed favorably toward the employee.”

Here are a few links to the case, Taylor v. PERA:

http://scholar.google.com/scholar_case?case=11856628789716288634&q=Jean+Dubofsky+Colorado+PERA&hl=en&as_sdt=2,6

http://www.leagle.com/xmlResult.aspx?xmldoc=1975925542P2d383_1915.xml&docbase=CSLWAR1-1950-1985

I also noticed that the defendants in the case Justus v. State copied a Motion to Dismiss the case to Dubofsky’s law firm in Boulder on June 23, 2010:

Link:

http://saveperacola.files.wordpress.com/2011/04/2010-06-23-state-defs-reply-in-support-of-motion-to-dismiss1.pdf

In addition to her connections to the Bell Policy Center, Dubofsky is a former President, and current board member of the Colorado Center for Law and Policy:

http://www.cogreatwomen.org/dubofsky.htm
http://www.cclponline.org/who_we_are/page/board-of-directors

I recognize that former Colorado Supreme Court Justice Dubofsky has provided admirable service to the State of Colorado.  However, in my opinion Colorado governments and public policy advocacy groups should direct their efforts to raising the funds necessary to adequately fund public services in our state, including public education. The repudiation of Colorado’s contractual pension obligations is not supportable.

Colorado PERA active and retired members, defend your contractual public pension rights and the rule of law in Colorado.  Contribute at saveperacola.com, and Friend Save Pera Cola on Facebook!