The Top Ten: Damning Evidence in the Colorado PERA Retiree Lawsuit, Justus v. State.
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by: PolDancer
Here's a synopsis of the "Top Ten" for the casual reader:
(1) Colorado governments face no fiscal "crisis" that would warrant the breach of their pension contracts. They spend a mere two percent of revenues on public pensions.
(2) The Colorado General Assembly has not paid its full pension bill for a decade. It comes with dirty hands.
(3) The Colorado General Assembly has adopted PROSPECTIVE, legal pension reform for Colorado county governments (SB12-149). It can also adopt such PROSPECTIVE, legal pension reform for the Colorado PERA pension system. SB12-149 is proof that the Colorado Legislature can adopt "less drastic" pension reform than the breach of "fully-vested" PERA public pension contracts. The 2010 PERA COLA taking was unnecessary.
(4) The Colorado PERA COLA benefit is an "AUTOMATIC" COLA benefit, a contractual obligation of Colorado PERA employers, rather than an "ad hoc" pension COLA that can be diminished by pension plan sponsors. Colorado PERA officials have confirmed this fact in writing.
(5) Opinions of Colorado Attorneys General and Colorado case law support the sanctity of Colorado PERA COLA pension contracts.
(6) Colorado PERA officials have testified before the Colorado Legislature that the PERA COLA is their contractual obligation. Their words are on the record at the Colorado Legislature.
(7) The taking of the PERA COLA benefit was planned by lobbyists and the Leadership of the Colorado Legislature. Thus, Leadership failed to send an interrogatory to the Colorado Supreme Court, or appoint an interim study committee to explore legal pension reform options. Colorado PERA was shopping for a legal rationale to break COLA contracts a full year prior to the adoption of SB10-001.
(8) The Colorado Legislature overreached in attempting to shift 90 percent of the PERA pension reform bill's costs away from those who actually owe the debt, Colorado PERA-affiliated employers, and onto those who DO NOT owe the debt, Colorado PERA pensioners. Not exactly "reasonable."
(9) Colorado PERA's actuarial funded ratio (AFR) has been much lower in the past, than its level at the time of the contract breach, yet no "crisis" was perceived by PERA or Colorado legislators or Governors in the past. Clear evidence that SB10-001 was arbitrary . . . political.
(10) In 2009, Colorado PERA selected a politically, and judicially, connected lawyer to create a legal rationale to break PERA COLA contracts. This connected lawyer worked with our gifted Colorado Supreme Court Justice Marquez (a former PERA legal advisor) on the lawsuit, Justus v. State.
Income inequality in the United States is bad enough without the Colorado Legislature exacerbating the problem by breaking the contracts of elderly, middle-class pensioners. The Colorado Legislature intends to take the property of Colorado PERA retirees in order to help preserve Colorado's status as a "tax haven," the state with the lowest per capita state tax burden in the nation. The Colorado Legislature has planned a deliberate breach of Colorado PERA retiree pension contracts that will result in Colorado corporations, corporate owners and executives controlling even more of the wealth in the state.
In 2010, a majority of Colorado legislators decided to use the force of government to take property from Colorado PERA pensioners, to renege on the contractual obligations of Colorado state and local governments, as well as taxpayers. Our state legislators took this action as a political favor for their voters, and for the constituencies that finance their state legislative campaigns.
In 2010, a troop of 27 statehouse lobbyists, hired by Colorado PERA-affiliated employers, rammed a bill through the legislative process (SB10-001) in an attempt to force their employer's debts onto the backs of Colorado PERA pensioners. Three years have passed, and I still cannot believe that a majority of the members of our own Colorado Legislature were capable of such immorality.
October 22, 2009
"PERA is obviously gearing up for some heavy-duty lobbying, one observer noted. The agency has hired two lobbyists from the firm Colorado Communiqué, 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."
Over the last three years, a great deal of information relating to the circumstances of the Colorado Legislature's 2010 PERA pension contract breach has come to light. Colorado PERA officials have already admitted (provided written and verbal testimony to the Legislature) that the Colorado PERA COLA benefit is a contractual obligation of PERA-affiliated employers.
Their legislative testimony is in agreement with the recent finding of the Colorado Court of Appeals that the PERA COLA provision IS such a contractual obligation. Why does Colorado PERA bother appealing a ruling on this question, when they agree with the Court of Appeals decision? It makes no sense. Further, it is obvious that the taking of one-third to one-half of a contracted annuity stream is a "substantial" impairment of the contract, just as the taking of one-half of a homeowner's equity would be a "substantial" taking.
In legal briefs, the State of Colorado and PERA Defendants present arguments in favor of the legislative taking of contracted Colorado pensioner benefits. In this article, I rank what I perceive to be the most damning evidence to the State of Colorado and PERA Defendant's legal arguments. I prioritize the evidence (discovered to date) that I believe most soundly refutes the State of Colorado and PERA Defendant's legal arguments that the taking of money from PERA pensioners to meet Colorado public sector debts was "reasonable and necessary." Even the evidence gathered to date, without formal discovery, demonstrates that the Colorado Legislature's 2010 PERA pension contract breach was completely arbitrary, and purely a political preference, rather than "reasonable," or "necessary."
The Top Ten:
(1) Colorado is not in the midst of a fiscal "crisis." Colorado is a wealthy state with a budget surplus. Colorado has paid off $700 million in local government pension debt that is not its responsibility, while ignoring its own contractual Colorado PERA debt. Colorado has recently made $100 million grants of discretionary property tax relief. Colorado governments can afford to pay their debts.
(2) The Colorado General Assembly has, historically, ignored its PERA pension bills (ARC), the Colorado PERA Board of Trustees has, historically, made it board policy to underfund the PERA pension system (a "90 percent cap.")
(3) The Colorado Legislature has recently adopted PROSPECTIVE, legal public pension reform honoring the accrued pension benefits of thousands of Colorado county government pensioners (SB12-149). Thus, the General Assembly has demonstrated that it is capable of public pension reform that conforms to the strictures of the Colorado Constitution. Similar legislation may be adopted to bolster the actuarial funded ratio (AFR) of the Colorado PERA pension system.
(4) The Colorado PERA COLA benefit is an "AUTOMATIC" COLA benefit, a contractual obligation of Colorado PERA employers. It has a legal status identical to any other provision of the written, statutory Colorado PERA pension contract. In spite of the wishes of those who would break PERA contracts, it IS NOT an "ad hoc" COLA benefit (provided by some states) that may be diminished by a pension plan sponsor for vested annuitants.
(5) A number of Opinions of Colorado Attorneys General support the sanctity of Colorado PERA COLA contracts.
(6) Colorado PERA officials have provided written testimony to the Colorado Legislature's Joint Budget Committee stating that the Colorado PERA COLA benefit is a contractual obligation of PERA-affiliated employers. Officials of the Ritter Administration (Governor Ritter signed SB10-001) have confirmed this opinion in a letter to the federal regulatory agency, GASB.
(7) The Legislative Leadership of the Colorado General Assembly failed to perform due diligence. Although encouraged to do so, Leadership failed to send an interrogatory to the Colorado Supreme Court to clarify the contractual nature of the PERA COLA benefit. Leadership failed to appoint an interim study committee to examine PROSPECTIVE, legal pension reform options. The taking of the PERA COLA benefit was preconceived, rather than the result of a deliberative process.
(8) The Colorado Legislature (and lobbyists hired by PERA employers) overreached in attempting to shift 90 percent of the costs of PERA reform away from those who legally owe the debt, PERA employers, and by incorporating an unnecessary "100 percent" funded ratio threshold into the PERA statutory contract.
(9) The actuarial funded ratio of the Colorado PERA pension system has been much lower in the past, than its level at the time of the SB10-001 pension contract breach. Yet, during those times, Colorado PERA officials supported PERA pensioner contractual rights.
(10) In early 2009, the supporters of the planned Colorado PERA COLA contract breach shopped for a law firm to create a legal rationale to justify the taking of the COLA benefit. They selected the law firm of an education advocate with impressive connections in the Colorado political and judicial communities. The selected attorney, Jean Dubofsky, worked on the Justus v. State lawsuit with current Colorado Supreme Court Justice Monica Marquez. While at the Colorado Attorney General's Office, our accomplished Justice Marquez provided legal advice to Colorado PERA.
#1: COLORADO STATE AND LOCAL GOVERNMENTS FACE NO FINANCIAL "CRISIS."
Prior to the adoption of SB10-001, Colorado PERA officials assured us that the Colorado PERA pension system faced no "crisis":
August 11, 2009
Colorado PERA Board Trustee Casebolt assures PERA retirees present at Colorado PERA Denver meeting of the PERA “Listening Tour”: “PERA faces no immediate danger of being unable to pay benefits, in fact, PERA can pay benefits for many years to come, based on our current funding and our benefit structure coupled with over $30 billion in assets, at present market value.”
Colorado PERA in “Setting the Record Straight”: “But what’s not mentioned is that this liability is not due and cannot be made payable today, just like a mortgage.” “PERA is a long-term investor with an investment horizon that spans not just 10 years, but 50 or 70 years.”
https://www.copera.org/pera/about/issues.htm
March 1, 2012
Representative Kagan, March 1, 2012, House Finance Committee: "(In adopting SB10-001) we had put PERA . . . on an actuarial sound footing without waiting for a crisis to hit, without waiting for exposés and pressure . . ."
(My comment: Here, Rep. Kagan notes that the Colorado General Assembly adopted SB10-001 in 2010, breaking PERA pension contracts, while Colorado PERA faced no financial "crisis.")
April 12, 2013
From Governing Magazine:
"Tax revenues increased in all but five states in fiscal year 2012, with some recording noticeable gains. In all, states collected $794.6 billion, a record-high that represents a 13 percent increase from 2010 totals, not adjusting for inflation."
"Governing compiled current and historical revenue data reported to the Census Bureau into the chart below."
Colorado Total Revenue Collected, 2008: $9,624,636,000
Colorado Total Revenue Collected, 2012: $10,250, 628,000
State financial crisis? From the Denver Business Journal: “. . . next year’s money — $924.3 million above the amount the state will spend this year, according to Legislative Council — is up for grabs.”
States that are able to voluntarily pay off debts that ARE NOT their contractual obligations, while ignoring debts that ARE INDEED their contractual obligations do not, by definition, face a financial "crisis":
April 2, 2013
The Colorado Legislature has paid off local government pension debt that IS NOT the contractual obligation of the State of Colorado. (This 2013 $142 million appropriation brings the total to $700 million for this purpose.) “House Republican leaders are floating a proposal to repay a longstanding debt (My comment, this is not a state 'debt,' sloppy reporting) to the state’s Fire and Police Pension Association in full as a way to get some GOP lawmakers to vote in favor of the $20 billion state budget for next year, which will be up for debate in the House on Thursday.” “‘It’s (House Minority Leader) Waller’s effort to buy some Republican votes,’ one GOP lawmaker told FOX31 Denver Tuesday." "Waller, who is almost certain to run for Attorney General (next) year, would like to be able to demonstrate that he leads a group of lawmakers who are pragmatic and responsible; and helping forge a bipartisan budget compromise would help him make that case.”
FPPA testimony (Dan Slack, CEO, FPPA) regarding the obligation of the State of Colorado to pay for local government "Old Hire Police Officers Pension Plans" to the Colorado General Assembly's Police Officers and Firefighters Pension Reform Commission (29 minutes into the hearing):
"So the State has made certain commitments, but has been very careful not to make binding obligations upon itself as the state to provide some assistance with funding for these plans."
The fact that the State of Colorado has directed $700 million ($142 million at the 2013 legislative session) to the payment of public pensions (Old Hire Fire and Police pensions) that ARE NOT its contractual obligation, the fact that the State of Colorado is making a $105 million discretionary grant of property tax relief in the budget for the coming fiscal year, proves that the State of Colorado has available financial resources and is quite able to perform under the terms of its Colorado PERA public pension contracts.
Next year’s property tax relief grant, from the Colorado Long Bill – $105 million in property tax relief:
Colorado State Budget 2013/2014 (Long Bill SB13-230), page 238, “Homestead” property tax relief grant: $105,200,000
#2: THE COLORADO GENERAL ASSEMBLY HAS NOT PAID ITS (FULL) PUBLIC PENSION BILL FOR A DECADE.
Colorado state and local governments (employers) have not paid their full pension bills for a decade. Colorado PERA members (workers) have ALWAYS paid their required Colorado PERA pension contributions, every month from their paychecks, without fail. These workers are required under Colorado law to make their PERA pension payments. In the history of the Colorado PERA pension system public workers have NEVER missed a payment. Why does Colorado law not similarly force Colorado PERA-affiliated employers to pay their own PERA pension bills?
Now that the Colorado Legislature has run up the PERA pension debt by failing to require PERA-affiliated employers to pay their pension bills, the Legislature seeks to push this EMPLOYER pension debt onto former employees.) That is plainly immoral and illegal.
October 10, 2003
“In 2003, (Treasurer) Coffman warned that the state’s pension fund may be in jeopardy after legislators lowered the state’s contribution from the general fund. [Associated Press, 10/10/03]”
“Adding to the problem is the fact that the legislature voted to reduce the amount of the state's contribution into the program from 12.2 percent in 1991 to 10.15 percent in 2004, Coffman said.” (October 10, 2003, Rocky Mountain News)
Colorado PERA officials place blame on the Colorado General Assembly for creating the latest PERA financial downturn: “Other notable factors (for the downturn in PERA’s fiscal position) include employers not contributing the actuarially determined contribution rates, the sale of purchased service credit at rates below actuarial costs, and the raising of benefits in the late 1990’s coupled with decreasing employer contributions.”
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.”
Colorado PERA Executive Director Meredith Williams' comments on February 23, 2012 to the House Finance Committee relating to the Legislature's historical underfunding of its PERA pension obligations:
"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."
March 1, 2012
House Finance Hearing: Don Schaeffer, Colorado PERA retiree, "I actually worked at PERA for 20 years." "In my job at PERA, I was the Communications Director, and that started somewhere back in the early 80s." "In the year 2000 . . . we (PERA) were fully funded and they (the General Assembly) said 'Oh, we have too much money," and so then we had (pension contribution) cuts, and we had benefits added and so forth."
(My comment: I ask: Why should Colorado PERA retirees, who have fully-vested public pension contracts relinquish their constitutional rights to compensate for such policy decisions of the Colorado General Assembly?)
March 1, 2012
House Finance Hearing: Rep. Hullinghorst, "We got ourselves into this mess in the 1980s to begin with, in the 1980s and 1990s, when the Legislature just on a whim decided they were going to do this and that with PERA, and made some changes that were very detrimental to the system."
Even the Colorado PERA Board of Trustees has sought to limit the funding available to the Colorado PERA pension system in the past. Now, having supported underfunding the system, the Board seeks to compensate by breaking Colorado PERA pension contracts.
1999
George K. Baum study performed under the auspices of Colorado PERA (presented on Colorado PERA letterhead) for State Treasurer Mike Coffman asks: “Why does PERA appear to have a policy to keep a 10% unfunded liability?” (If Colorado PERA had a policy, in the past, to cap the funded ratio of the PERA pension at 90 percent, why does the PERA Board propose to break PERA contracts in SB10-001 until a 100 percent funded ratio is achieved? As PERA officials have noted, the pension debt comes due over up to 70 years, it is not "due tomorrow.")
Was the PERA Board's "90 percent cap" on the actuarial funded ratio of the PERA trust funds a formal or informal board policy? By what means did the PERA Board seek to "cap" the trust funds? In what years has this policy been in place? Did the PERA Board make recommendations to the Legislature to maintain this 90 percent funded level?
#3: THE COLORADO LEGISLATURE HAS ADOPTED PROSPECTIVE, LEGAL PENSION REFORM HONORING ACCRUED PENSION BENEFITS OF THOUSANDS OF COLORADO COUNTY GOVERNMENT RETIREES. THE LEGISLATURE CAN ALSO HONOR COLORADO PERA CONTRACTS.
May 16, 2012
The Colorado General Assembly enacts the bill SB12-149, reforming certain Colorado public pension systems and honoring the accrued public pension benefits of public workers who are members of those pension systems, after having retroactively taken accrued benefits from Colorado PERA retirees in 2010.
Language from SB12-149:
“(3) ANY MODIFICATION PURSUANT TO SUBSECTION (2) OF THIS SECTION SHALL NOT ADVERSELY AFFECT VESTED BENEFITS ALREADY ACCRUED BY MEMBERS OF SUCH DEFINED BENEFIT PLAN OR SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE PENSION BENEFITS OF RETIRED MEMBERS OR MEMBERS ELIGIBLE TO RETIRE AS OF THE EFFECTIVE DATE OF THE MODIFICATION, UNLESS OTHERWISE PERMITTED UNDER OR REQUIRED BY COLORADO OR FEDERAL LAW.”)
Reforms adopted by the Colorado Legislature for county government pension systems (administrative arms of the state) conform with the legal theories of Professor Amy Monahan regarding protection of accrued public pension benefits.
March 17, 2010
Professor Amy Monahan, University of Minnesota School of Law, "Public Pension Plan Reform, the Legal Framework": "This Article has argued that pension benefits that have already been earned through services rendered to the state should be protected against impairment, but that it is hard to find legal justification for protecting the rate of future benefit accruals.”
Denver attorney Cindy Birley (a champion of prospective public pension reform in Colorado) testifying before the Colorado Legislature’s Senate Finance Committee hearing on the bill SB12-149, on March 13, 2012: “Generally, you would not change people who have already retired . . .”. “There may be an issue with what we would call ‘definitely determinable benefits,’ and this is a tax code concept.” “The . . . Internal Revenue Code requires for a defined benefit plan that your benefit be . . . ‘definitely determinable’.” “So a benefit that fluctuated based on your funding, it may be difficult to change that unless it’s somehow a cost-of-living adjustment that’s done more on an ad hoc basis.” “Because, it may not qualify as a defined benefit plan." “We could adjust benefits for future retirees as long as it still meets Internal Revenue Code requirements.” “It still has to pass muster as a DB plan.”
What instructions did the PERA Board or staff provide to PERA's actuaries modeling costs of proposals for pension reform? Did PERA's actuaries not find it odd that nearly all pension reform alternatives under consideration in the summer of 2009 financially impacted PERA employees and retirees, rather than PERA employers? What actuary performed these services for PERA? How many years has this actuary worked for PERA? What has been the value of Colorado PERA's contracts for actuarial services in recent years? Over the totality of the contractual relationship?
#4: THE COLORADO PERA COLA BENEFIT IS AN "AUTOMATIC" PENSION COLA BENEFIT, RATHER THAN AN "AD HOC" COLA THAT MAY BE LEGALLY DIMINISHED BY A PENSION PLAN SPONSOR.
Note that the Colorado PERA Defendants are clearly aware of the difference between an "ad hoc" public pension COLA benefit and an "automatic" public pension COLA benefit. On page 5 of the May 10, 2010 PERA Defendant's Motion to Dismiss, PERA's lawyers write: "From 1975 to 1978, the General Assembly also enacted ad hoc increases." See also, page 6 and page 7 of the PERA brief: "The ad hoc increases were also eliminated." Although Colorado PERA administrators know the difference between "automatic" and "ad hoc" pension COLAs, they would prefer that Colorado courts not recognize the difference. Accordingly, since deciding to attempt a breach of Colorado PERA COLA contracts, Colorado PERA officials no longer describe the COLA as an "automatic" pension benefit (as has been their historical practice.)
For decades, in every paycheck, Colorado PERA retirees paid for their contracted, "automatic," PERA COLA benefit. The Colorado General Assembly voluntarily offered this "automatic," pension COLA benefit in the PERA contract. Colorado PERA retirees acted on this contractual offer, they chose to continue in state service, forgoing other job opportunities, and they retired under these contractual terms. The Colorado General Assembly has no right to claw back this earned, accrued, deferred compensation after the fact.
At some point in recent years the decision was made that part of Colorado PERA’s legal strategy would be to attempt to deny the “automatic” nature of the PERA retiree COLA benefit itself. In hindsight, so much evidence of the “automatic” nature of the PERA COLA benefit exists that this decision now looks foolish. Prior to 2009, Colorado PERA officials had correctly assumed that fully-vested PERA retiree benefits, including contracted “automatic” COLA benefits were inviolate.
When it became clear that Colorado PERA would attempt to deny the “automatic” nature of the PERA COLA as part of its legal defense strategy, PERA began placing “disclaimers” on documents published on its website that identified the PERA COLA as “automatic.” PERA officials stopped referring to the PERA retiree COLA benefit as “automatic.”
June 2011
National Institute on Retirement Security on “automatic” and “ad hoc” public pension COLAs: “One key design feature of a COLA is whether it is automatic or ad hoc in nature. An automatic COLA means the retiree’s benefit increases automatically every year by a certain percentage. An ad hoc COLA is granted at the discretion of the plan sponsor, usually when the fund is in a well-funded position and investment gains have exceeded expectation."
Douglas Greenfield: “The theory behind that is that a pension that has a COLA is the equivalent of a fixed pension . . . that you could just have a higher fixed pension and no COLA . . . and is just a method by which you are providing the benefit.” Greenfield participated in a panel discussion hosted by the National Conference of State Legislatures. The panel discussion was titled: “How Much Can States Change Existing Retirement Policy?”
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.])
From the Colorado PERA 2001 CAFR (financial report), page 64:
"Summary of Actuarial Methods and Assumptions"
"Benefits are assumed to increase at a rate of 3.5 percent after payments begin."
https://www.copera.org/pdf/5/5-20-01.pdf
From "Ask Meredith," December 16, 2009:
In December 2009, PERA’s Executive Director Meredith Williams was unaware of PERA’s ultimate legal defense strategy in the case, Justus v. State, when he wrote the following: “. . . most other pension plans, public and private, do not have automatic COLAs and remember that Social Security is not a retirement plan.)”
“Employees hired before January 1, 2007 remain in PERA Pioneer (and will receive) automatic increase of 3.5% per year after retirement.”
“PERA members hired January 1, 2007 or later, called PERA Centennial, no guaranteed annual increase after retirement.”
Further evidence of the absurdity of Colorado PERA’s denial of the “automatic” nature of the PERA COLA exists. PERA has historically communicated the “automatic” nature of the COLA benefit to the “fiscal note” staff of the Colorado General Assembly. These communications should be on file at the offices of these legislative staffers.
Colorado PERA tells us in a 2004 document:
“Whenever legislation is contemplated regarding PERA benefits or contribution rates, PERA asks the actuary for an estimate of the long-term impact. The results are communicated to Legislative Council for preparation of fiscal notes on such legislation.”
With such information from Colorado PERA, the Legislative “fiscal note” staff wrote the fiscal note for House Bill 00-1458 (the bill that improved the COLA benefit to a fixed 3.5 percent.) The fiscal note for this bill, HB 00-1458, includes the term “automatic” in the following description of the retiree COLA:
“Established 3.5% compounded annual automatic COLA effective March 2001.”
As we know, Colorado PERA contracts with outside, independent actuaries for supplemental actuarial reviews every five years. In 2001, Buck Consultants provided such an actuarial report to the Legislative Audit Committee of the Colorado General Assembly.
This Buck Consultants report clearly identifies the Colorado PERA 3.5 percent COLA as “automatic,” refers to “guaranteed benefits at retirement,” and the “fixed” COLA, that is “compounded annually for each year of retirement.”
The Buck Consultants report identifies the 3.5% PERA COLA as “automatic,” contrasting the PERA COLA with an “ad hoc” COLA “as approved by Legislature.”
Specifically, the report makes reference to:
“PERA’s automatic 3.5% per year COLA feature”;
“the guaranteed lifetime income provided by PERA”;
“COLA – Automatic 3.5%” as opposed to an “ad hoc” COLA;
“PERA guaranteed benefits at retirement”;
“Colorado PERA vesting requirement – five years.”
Further, the Buck Consultants report notes that:
“Effective March of 2001, the cost of living adjustment was set at an annual fixed rate of 3.5%”;
“PERA provides inflation protection to retirees with a 3.5% annual COLA,” and
“Post-Retirement Benefit Increases: Each year on March 1, benefits which have been paid for at least three months are increased. The increase is 3.5% compounded annually for each year of retirement.”
If Colorado PERA officials did not agree with the Buck Consultants characterization of the PERA retiree COLA as an “automatic” COLA, then why did these Colorado PERA officials not state their objections to this characterization when the Buck Consultants report was presented to the Legislative Audit Committee in 2001?
Over the years, Colorado PERA has published, and periodically updated a memorandum with a title along the lines of “History of Colorado PERA Legislation.”
The 2009 version of this memorandum is stored on the website of the Colorado General Assembly at this link:
Right clicking on this PDF, and then clicking on “Document Properties” reveals that the memorandum was prepared by Mr. Karl Paulson of Colorado PERA on 11/30-2009.
When it became apparent that part of PERA’s legal strategy would be to deny the “automatic” nature of the retiree COLA benefit, PERA suppressed this “History of Colorado PERA Legislation” memorandum which identifies the PERA COLA as an “automatic” COLA benefit. However, they were unable to remove the copy stored on the website of the Colorado General Assembly. Colorado PERA officials replaced the memorandum with a “scrubbed” version of the memo, striking all reference to the “automatic” COLA, as well as pre-1993 references to the “ad hoc” PERA COLA, (which the COLA was at the time.) The “scrubbed” memo is available here:
The “History of Colorado PERA Legislation” memorandum from 2009 (that is, the “non-scrubbed version of the memo) describes the COLAs in HB 00-1458 as follows:
“HB 00-1458
Established 3.5% compounded annual automatic COLA effective March 2001.” “Prior to this date, the annual COLA equaled the lower of the actual inflation rate or annual 3.5% cumulative increases since retirement.” (The PERA COLA was improved from “automatic” lesser of 3.5 percent or inflation, to a flat “automatic” 3.5 percent in HB 00-1458.)
Additional PERA documents describing the PERA retiree COLA as “automatic” are available on PERA’s website at the following links:
#5: OPINIONS OF COLORADO ATTORNEYS GENERAL SUPPORT COLORADO PERA PENSION COLA CONTRACTS.
November 18, 2004
Colorado Attorney General Ken Salazar 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."
Colorado Supreme Court in Taylor v. PERA: “As was noted in Endsley v. Public Employees Retirement Association . . . (1974) ambiguities appearing in statutes regulating pension and retirement funds are construed favorably toward the employee.”
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"
Colorado PERA General Counsel Greg Smith: “The attorney general's opinion seems clear that fully vested employees — those retired or with enough years of service to retire — cannot see any benefits reduced, including cost-of-living adjustments.”
Colorado PERA Executive Director Meredith Williams commenting on Colorado Attorney General Ken Salazar’s 2004 Formal Opinion on PERA benefits (PERA Retiree Update, page 1):
“The AG’s opinion states that when a PERA member retires and begins receiving pension benefits such member’s pension rights have fully vested and such pension benefits may not be reduced.”.
https://www.copera.org/pdf/5/5-40-08.pdf
December 8, 2008
"Ask Meredith" column on Colorado PERA website: “That leaves the benefits being earned by members (active and inactive) as the only area to examine for savings. The Attorney General’s opinion contains the following language: 'Once a PERA member fulfills all the statutory requirements for a pension benefit, retires and begins receiving a pension, the member’s fully vested pension right cannot be reduced by the General Assembly.'”
https://www.copera.org/pera/about/askm.htm
January 2009
Colorado PERA Executive Director Meredith Williams: “The AG’s opinion states that when a PERA member retires and begins receiving pension benefits such member’s pension rights have fully vested and such pension benefits may not be reduced.”
Meredith Williams, Feb 23, 2012, House Finance Committee:
"What you did in 2010, with Senate Bill1, no one in the country has done anything comparable . . . and this was pretty dicey stuff, and this is why we had to walk on that razor's edge. You can't fix it (the PERA pension system) too much, because over 90 percent of the fix incorporated in Senate Bill 1 in 2010 came out of the hide of people in the system . . . less than ten percent of that fix came from our employers/taxpayers. No one has ever done anything quite like that. I am quite anxious for the litigation to get behind us."
#6: COLORADO PERA OFFICIALS HAVE TESTIFIED TO THE LEGISLATURE'S JOINT BUDGET COMMITTEE: "THE COLA IS A CONTRACT."
December 16, 2009
Colorado PERA officials in written testimony to the Joint Budget Committee: “The General Assembly cannot decrease the COLA (absent actuarial necessity) because it is part of the contractual obligations that accrue under a pension plan protected under the Colorado Constitution Article II, Section 11 and the United States Constitution Article 1, Section 10 for vested contractual rights.”
Colorado PERA General Counsel: An "actuarial emergency" occurs when a pension plan runs out of cash to pay benefits:
February 21, 2004
“PERA General Counsel Greg Smith said his research shows that actuarial emergencies occur only when a pension plan does not have the cash to pay current benefits, and that's not the case with PERA, since the plan has $29 billion in assets and a constant stream of investment income that helps cover benefit costs.” – Rocky Mountain News, David Milstead.
Colorado PERA Board Trustee Casebolt: Colorado PERA has plenty of cash to pay benefits:
August 11, 2009
Colorado PERA Board Trustee Casebolt assures PERA retirees present at Colorado PERA Denver meeting of the PERA “Listening Tour”: “PERA faces no immediate danger of being unable to pay benefits, in fact, PERA can pay benefits for many years to come, based on our current funding and our benefit structure coupled with over $30 billion in assets, at present market value.”
Colorado Assistant Attorney General Heidi Dineen, Rocky Mountain News (in a four part series): "'Everyone agrees you certainly can make changes for people you haven’t even hired yet,' said Heidi Dineen, a state assistant attorney general retained to explore the issue for the Commission to Strengthen and Secure PERA. 'On the other side of the spectrum is pensioners, getting their pension checks, you cannot take that away.'"
"Smith said in his opinion that 'other (non-Colorado) courts have set a high burden to meet the necessity threshold.'"
“His (Colorado PERA General Counsel Greg Smith) briefing paper said 'there has never been a finding in Colorado that the state has reserved its power to make changes' in PERA's benefit structure.”
"The PERA board, however, relying on a legal opinion by General Counsel Greg Smith, thinks benefits cannot be cut for any active PERA member. That means not just current retirees and workers who are eligible to retire but the brand-new employee who has put less than a year of contributions into the plan."
"Smith argued, however, that there is no precedent for declaring an actuarial emergency unless a pension fund has a serious cash liquidity problem."
Colorado PERA General Counsel Greg Smith to Senate Finance Committee: “There are few case laws that address the issue, Smith said, but one, regarding a fire and police pension plan, was litigated when the plan ran out of money and benefits were being paid for with current revenues.”
Senator Josh Penry, co-prime sponsor, SB10-001 appearing on Your Show, Channel 20 with Channel 9 News (KUSA-TV) host Adam Schrager on at 10:30 a.m.:
“What the courts have said with the case law and opinions have said is that you can’t, it is a contract unless there is actuarial necessity.”
February 23, 2012
Colorado PERA Executive Director Meredith Williams' comments on February 23, 2012 to the House Finance Committee: "Those people all have a contract with their employer with the plan. You made changes to impact people like that in SB1."
January 29, 2010
2010 Senate floor debate on SB 10-001:
Rep. Lambert: “I have heard from my constituents, as many of you have, that this proposal will breach retiree’s contracts.”
Rep. Swalm: “We’re breaking new territory in this state by trying to reduce the COLA. We’re probably going to get a lawsuit out of that. If we cut the 3.5 percent COLA there will be a lawsuit.”
Rep. Gerou: in committee, said that it is a disservice to the state to rush a bill through when her committee knew that it will go to litigation, and said what we are doing to the retirees is wrong.
Rep. DelGrosso: said that it is “tough” for him to tell people that he is going to break their contract.
Senator Harvey: “We have made a commitment. We have a contract with current retirees. That is already in place. Reforms should be made for new hires. We do not have that commitment to new hires.”
Senator Spence: “The bill places an unfair burden on retirees.”
Senator Scheffel: “We are breaching our promises to existing retirees.”
Senator Lundberg: “This bill is a deal that was cut before this body met.”
February 10, 2010
Joel Judd, Chairman, House Finance Committee, during the hearing on Senate Bill 10-001 Chairman Judd stated (near the end of the hearing) that SB 10-001 (the “COLA theft bill”) must be supported "because that's where the money is."
2012 House Finance Hearings:
Representative Chris Holbert – February 23, 2012, House Finance Committee, hearing on HB12-1250: "We have a contract, an obligation to the vested members of PERA, and we have to meet that . ."
Representative Kevin Priola – February 23, 2012, House Finance Committee, hearing on HB12-1150: " . . . taxpayers know that in the end they're on the hook, State of Colorado taxpayers are on the hook for any (PERA) unfunded liability down the road . . "
House Finance Committee Chairman Brian DelGrosso, February 23, 2012:
"I voted against Senate Bill1, and I voted against Senate Bill 1 not because I felt like we didn't need to fix PERA, I agreed with that part of it, but I voted against Senate Bill1 for the fact that it did adjust some of the COLAs and it did adjust stuff for folks that were already retired and people that were about ready to retire, and to me I felt like that was violating a contract that those people had got into . . . they played by the rules that were of the game at the time, and these folks . . . got up to where they about to retire or were retired, and now all of a sudden we were going to change the rules of game on them after they were done playing. So to me, that was why I voted against Senate Bill 1, because I felt like that violated some of the contractual issues that we had."
Representative Jim Kerr, February 23, 2012: "The taxpayers . . . are obligated to fulfill the (PERA) benefits as soon as someone starts drawing those benefits down."
Representative Jim Kerr, February 23, 2012: "They've earned those benefits . ." ". . . The taxpayers . . . they're the ones who ultimately have to make the (PERA) fund whole . . ."
Representative Jim Kerr, February 23, 2012: "If you're in a defined benefit program, you have a guarantee." "PERA does have a guarantee." "A defined benefit plan is a guarantee."
Representative Dickey Lee Hullinghorst, February 23, 2012: "Our state employees earn retirement benefits when they work."
Representative Spencer Swalm, February 23, 2012: "There is a contractual obligation here. This is a defined benefit plan, those benefits are guaranteed, and ultimately the taxpayers of the state are on the hook."
Representative Dickey Lee Hullinghorst, February 23, 2012: "I would like to know exactly what that (PERA) contractual relationship is." "We are employers and we pay into PERA as a part of a benefit that's earned by our employees."
Colorado PERA Executive Director Meredith Williams in response to Representative Hullinghorst's question, February 23, 2012, (after preliminary remarks):
"We never have to answer that question. It's not a black and white answer."
(My comment: Why is Colorado PERA's Executive Director, Meredith Williams now hesitant to succinctly state the contractual rights of PERA's members? Are the employees of PERA-affiliated employers expected to work for decades without knowing clearly what their rights are under their PERA contracts? Are they expected to work each day for pension benefits that are undefined?)
Representative Hullinghorst, March 1, 2012, House Finance Committee: "My understanding is that when you go to work, and you sign up for PERA benefits, and you are required by the state to do that . . . that's a contract, and I think that this is potentially actionable."
Representative DelGrosso, March 1, 2012, House Finance Committee: "The problem that we ran into with Senate Bill 1 . . . is that when they start adjusting things like the COLA . . . that's where it opens us up to lawsuits, because people are like 'hey, I'm five years away from retirement, I'm ten years away from retirement, I'm one year away, I am retired,' and then we go and make changes that's where we have lawsuits, because hey this a violating a contract . . . "
Representative Kefalas, March 1, 2012, House Finance Committee: "It still does affect those members that have signed contracts that are non-vested. Is that correct? And therefore I still have concerns about L.001."
(My comment: Here Rep. Kefalas expressed concern about impacting PERA benefits of "non-vested" PERA members, yet he supported Senate Bill 10-001, a bill abrogating "fully-vested" Colorado PERA pension contracts . . . a bill that took one-third of the accrued public pension benefits of Colorado PERA retirees. This is stunning admission.)
Representative Kagan, March 1, 2012, House Finance Committee: "This is a benefit cut to public employees who work hard all of their lives and one of their measures of compensation is their benefits package, that's how we manage to attract such fine public employees as we have on such low salaries is because they know 'yeah, the salaries aren't as high as I'd like, but I'm still very loyal to the state, I work very hard for the state for a very low salary because I do have a respectable benefits package, and I'm sure that that benefits package will be there for me when I retire.' Now you come and you say we're going to cut those benefits, we're going to reduce the value of that package . . ."
Representative DelGrosso, March 1, 2012, House Finance Committee: "These new hires know what their retirement will be, so when they're getting into the system they can choose to accept the job or not knowing what their retirement benefits will be."
"We are still involved in lawsuits over Senate Bill 1 on whether or not those were constitutional because we made changes to people that are currently in the system that were vested, current retirees. So, Senate Bill 1 did affect people's current retirements and those that were retired."
Representative DelGrosso, March 1, 2012, House Finance Committee: "We have to look 25 to 30 years into the future to avoid the lawsuits that we are currently involved in because of Senate Bill 1." "We're forced to, to avoid lawsuits, to look that far into the future."
Representative Hullinghorst, March 1, 2012, House Finance Committee: "The current suits are relative to COLA." "There was some awareness that that possibly could draw some suits." "It was much less a problem with cutting benefits than any other thing you could look at in that regard." "This is a more difficult . . . approach than the COLA situation."
(My comment: Incredibly, here we have Rep. Hullinhorst stating that enactment of PROSPECTIVE public pension reform for NEW HIRES is a "more difficult approach" for the Colorado General Assembly than is the outright, intentional breach of fully-vested Colorado PERA pension contracts of PERA members who had worked for PERA-affiliated employers FOR DECADES. The lobbyists earned their pay.)
Representative Kefalas, March 1, 2012, House Finance Committee: "I am concerned that this will undermine the contractual obligations that we have made with folks who are state employees and that could invite litigation and I think that's something the state does not need."
(My comment: Again, Rep. Kefalas defends the interests of non-vested Colorado PERA members, members who have NO contractual right to any PERA annuity.)
THE RITTER ADMINISTRATION'S "GASB LETTER."
Why did officials in the Colorado State Controller's Office describe Colorado PERA pension benefits as a "present obligation" arising from the "employment exchange transaction," in a letter to federal regulators, just six months after SB10-001 was signed? Why did they write that taking the COLA benefit changes the "net economic benefit to the employee" that was "entered into" in the "exchange transaction agreement" six months after the bill was signed?
Did officials in the State Controller's office disagree with Governor Ritter's action on SB10-001? Were they astonished that the General Assembly would attempt to break Colorado public pension contracts? Were they prevented from speaking openly, believing that such candor would end their careers? Did they hope that their letter would be discovered in order that their view of state contractual pension obligations be known? How many state employees find themselves in this predicament? How many employees of the Colorado Attorney General's Office, or the state Judicial Branch are in this predicament? employees of PERA-affiliated local governments?
Ritter Administration GASB Letter:
“Because the exchange transaction which gave rise to this present obligation was made between the employer and the employee who is also a member of the pension plan, a reduction in member benefits [such as COLAs] . . . serve[s] to change the net economic benefit to the employee that was entered into at the time of the exchange transaction agreement.”
Here the Ritter Administration states clearly that a reduction in a COLA benefit [that is earned in an “exchange transaction”] changes the “net economic benefit” to the employee under the employee’s pension “agreement.” Under SB 10-001, the “net economic benefit,” for an average PERA member was “reduced,” according the Ritter Administration, by “$165,000.”
Read the entirety of the Ritter Administration letter on the GASB site here:
Excerpts, Ritter Administration Letter to GASB on contractual public pension obligations:
“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.”
“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.”
“Because the exchange transaction which gave rise to this present obligation was made between the employer and the employee who is also a member of the pension plan, a reduction in member benefits (such as COLAs), or an increase in required employee contributions both serve to change the net economic benefit to the employee that was entered into at the time of the exchange transaction agreement.”
“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.”
#7: THE TAKING OF ACCRUED PERA COLA BENEFITS WAS NOT THE RESULT OF A DELIBERATIVE PROCESS . . . IT WAS PRECONCEIVED. THE LEGISLATURE DID NOT PURSUE AN INTERROGATORY OR APPOINT AN INTERIM STUDY COMMITTEE, AS THIS WOULD HAVE INTERFERED WITH THE PLANNED COLA TAKING.
April 14, 2009
Colorado PERA Executive Director Meredith Williams testifies to the Senate Finance Committee hearing on SB09-282 (03:28 PM) stating that "the PERA Board is committed to presenting a proposal to the General Assembly that addresses retirement benefit issues for Colorado PERA.” Mr. Williams made this statement one week BEFORE the requirement for the PERA Board to provide recommendations to the Legislature regarding PERA reform was placed into SB09-282 (on April 21, 2009.) In court documents, Colorado PERA emphasizes that, in 2009, the PERA Board was simply responding to the General Assembly’s “legislative mandate” to make PERA pension reform recommendations. Response Brief submitted to the Denver District Court:
Senator Josh Penry, in a videotaped discussion with Representative Mike May, (videocenter. denverpost.com) said ‘we can’t, can’t miss this window.’ And, . . . we have an opportunity to pass something that Republicans have long advocated, a significant increase in retirement age, which the PERA Board embraced, reigning in the cost of living increases . . .
“Penry went on to say, ‘I think it is important to pass something because if you lose actuarial necessity, as you know, it becomes extremely difficult to increase retirement age. You cannot change course and this year, when PERA’s investment numbers come out, their investment returns . . . numbers are going to be significant, like double, 15-16% investment return. So that could change the specter of actuarial necessity. We gotta’ do it this year or else these other structural changes won’t be possible.”
Why did the Colorado General Assembly believe that market volatility in 2008/09 was a "window of opportunity" to break PERA pension contracts, but market volatility in 2001 was NOT a "window of opportunity" to break PERA pension contracts? In October 1987, U.S. stock markets fell 23 percent over ten days (beginning with "Black Monday.") Why was this 1987 market volatility not seized by Colorado legislators as an opportunity to break PERA pension contracts? What was the reaction of the Colorado PERA Board to the market drop in 1987?
February 1, 2010
Senate “Third Reading” debate on SB10-001 (watch on the Colorado Channel):
Senator Renfroe: “Or, if you want it to go out of here with the PERA-approved document and nothing else then let’s just approve this one and vote mine down.”
COLORADO PERA BOARD OF TRUSTEES CONTROLLING THE LEGISLATIVE PROCESS.
Colorado PERA’s propaganda has emphasized that the Colorado Legislature requested that the PERA Board of Directors make recommendations to shore up the PERA trust funds. I ask if this Colorado PERA assertion is an attempt to mislead. Colorado PERA went so far as to emphasize the General Assembly’s “legislative mandate” in a Response Brief submitted to the Denver District Court:
“By LEGISLATIVE MANDATE the PERA Board extensively studied the underfunding and consulted with its members . . . before proposing a solution to the General Assembly.”
I ask: Did Colorado PERA plant this request language into SB 09-282 at the end of the 2009 legislative session in order to lend a patina of legitimacy to what was in fact a premeditated attempt to breach pension COLA contractual obligations?
Recall Senator Lundberg’s statement on the Senate floor during the SB 10-001 debate: “This bill is a deal that was cut before this body met.”
Was Colorado PERA’s ostensible, impartial examination of pension reform options in 2009 in reality a ruse constructed by PERA lobbyists to add legitimacy to a process with a predetermined conclusion? To falsely portray a preordained conclusion to breach pension COLA contracts as the result of an extensive, deliberative process?
I wonder, did the request for a PERA study actually come from the Colorado General Assembly? Was this request the product of SB 10-001 co-prime sponsor Senator Josh Penry’s mind? Did he conceive this idea to request PERA recommendations? Or, was this idea planted in the Penry brain by PERA’s lobbyists?
In 2009, the Colorado General Assembly enacted legislation (SB 09-282) to merge Denver Public Schools with Colorado PERA (specifically, to merge the assets and liabilities of Denver Public Schools into Colorado PERA.) A provision of SB 09-282 required that the PERA Board of Trustees submit recommendations to the Colorado General Assembly regarding methods of responding to the decrease in the value of the association's assets on or before November 1, 2009. Note that this bill asks for “possible methods” to respond to the decrease in the value of PERA’s assets. The General Assembly did not ask that the PERA Board dictate a plan that would breach PERA’s contractual pension obligations. Implicit in the request from the General Assembly was the fact that the requested “possible methods” would be constitutional.
On April 21, 2009, Senator Penry, the co-prime sponsor of SB 10-001 amended SB 09-282 on the floor of the Senate. His prepared amendment to the bill required the PERA Board to make recommendations to the Legislature regarding “possible methods” to respond to the decrease in the value of PERA’s assets. His amendment required that this report be provided to the Legislature by September 1, 2009. Two days later, Senator Sandoval amended the bill (SB 09-282) to move the deadline for submission of the report from September 1, 2009 to November 1, 2009. (The PERA Board wanted more time? It looks like the PERA Board may claim some ownership in the statutory language requiring the “study.” In fact, PERA lawyers may very well have drafted the entire amendment.)
Questions for Senator Penry: Did you originate the idea to require the PERA Board to make recommendations to the General Assembly regarding possible methods to respond to the decrease in PERA assets of your own accord? Or, did you offer this amendment on behalf of a PERA lobbyist? Another lobbyist? Another legislative member?
The drafter of SB 09-282 was a lawyer from the General Assembly’s Office of Legislative Legal Services, Nicole Myers. Questions for Ms. Myers: Who asked you to draft the amendment requesting that the General Assembly make recommendations regarding methods to respond to the decrease in PERA assets? A lobbyist? A PERA lobbyist? Did a PERA lobbyist make this request on behalf of Senator Penry? Did a PERA lobbyist provide a draft of their desired language in this regard? Please check your records.
LEGISLATIVE LEADERSHIP OF THE COLORADO GENERAL ASSEMBLY WANTED TO KEEP STATE LEGISLATORS IN THE DARK ON PERA PENSION RIGHTS.
In 2009, the General Assembly's Leadership did not want to know the truth, and they did not want others to know the truth. Thus, Leadership did not pursue an interrogatory to the Colorado Supreme Court addressing the constitutionality of their proposal to take contracted, accrued PERA COLA benefits. The Denver Post Editorial Board encouraged the General Assembly to pursue an interrogatory. This advice was ignored by Legislative Leadership. (Better to put thousands of old people through hell.)
Leadership did not want the rank and file members to know the truth. In 2009/2010 how many members of the Colorado Legislature could tell you the difference between an "automatic" public pension COLA benefit and an "ad hoc" COLA benefit? Two? Three out of 100?
How many state legislators could tell you what an ARC is in 2009? How many knew that the General Assembly had skipped full payment of that ARC for a decade? How many can answer even the most basic questions regarding public pension contractual rights even today?
How many had read the on-point Colorado case law regarding the contractual nature of pension COLA benefits in our state? How many had even read the four page Colorado Attorney General's opinion on the contractual nature of public pension benefits in Colorado?
Can these state legislators be blamed for their lack of knowledge in this very complex subject area, if that ignorance was by design of the Leadership of the General Assembly? That ignorance worked to the benefit of self-interested parties (public sector unions) and their 27-member troop of lobbyists pursuing the PERA pension COLA contract breach.
Why would any state legislator assume that public pension benefits in Colorado are not part of contracted compensation for public sector workers in the state? Do they expect that these employees will work for compensation that is not determined in advance, that is not "defined," as in "defined benefit" pension plan? Did they hold the opinion that public sector workers in Colorado will give a day of labor for whatever compensation is deemed appropriate by the benevolent sovereign, the Colorado General Assembly?
November 15, 2009
Denver Post Editorial Board: "First, let court rule on PERA. Before legislators take on reforms, they should first ask the state Supreme Court to determine how much leeway they have."
"As Colorado lawmakers prepare to consider the financial rescue of the state employees' retirement fund, they ought to first figure out just how much legal leeway they have to overhaul it." "Legislators need to understand how much power a designation of 'actuarially necessary' gives them to modify benefits paid to members." "We think lawmakers should ask the state Supreme Court for a ruling so they know exactly what they can do." "Administrators of the Colorado Public Employees' Retirement Association, or PERA, recently asserted that the fund's foundering finances give the state the legal footing to cut future cost-of-living increases for people who already are retired. But what if that were challenged in court and found to be illegal?" "On the other hand, if annual hikes for retirees can be adjusted, why can't a case be made to increase the retirement age for many of those who are still working and contributing to PERA — a reform that is missing from the PERA board's plan?" "It's in Colorado's best interest to get out in front of the PERA problem, file an interrogatory with the state Supreme Court, and get a clear fix on what legislators can and cannot do. We're confident that PERA solutions will be far more clear after that."
http://www.denverpost.com/opinion/ci_13776995
January 15, 2010
“PERA also is hoping the Legislature will ask the Colorado Supreme Court to review the matter through interrogatories before the end of the session.”
"That may include asking Colorado's Supreme Court, via what's called an interrogatory from the legislature, about what changes can be done legally."
"It will complicate the situation, but given how disruptive such a change could be — imagine the accounting nightmare of changing benefits only to see the court strike it down some years later — it would be helpful if the court could answer such a question in advance of legislation."
http://www.denverpost.com/opinion/ci_12856631
November 22, 2010
Colorado PERA General Counsel Greg Smith at 2010 PERA Shareholder meeting (10 minutes into this YouTube video): “We need to know the answer of whether this action was constitutional.” (My comment: Would it not have been simpler to send an interrogatory to the Colorado Supreme Court in 2009?)
#8: THE COLORADO LEGISLATURE OVERREACHED IN PUSHING 90 PERCENT OF THE COSTS OF SB10-001 ONTO PERA RETIREES AND IN PLACING AN UNNECESSARY 100 PERCENT FUNDED GOAL INTO THE PERA CONTRACT.
January 22, 2010
SB10-001 co-prime sponsor Senator Josh Penry and bill sponsor Senator Greg Brophy: “Fully 90 percent of the PERA fix comes from benefit cuts to current and future retirees.”
http://www.denverpost.com/search/ci_14242354
January 26, 2010
"With SB1, Shaffer and Penry have said the state can realize solvency in the PERA fund within 30 years. Previously, the Legislature had targeted a 60-year fix."
"The difference between the past approach and SB1, Penry said, is that the new plan boldly tackles benefit reductions, which he said will constitute 90 percent of the PERA fund's recovery and generate plenty of opposition along the way."
Colorado PERA Executive Director Greg Smith, at the “Fall 2011 PERA Shareholder’s Meeting,” (thirty-six minutes into the video):"‘Only ten percent of the fix” of the [SB10-001] reforms in 2010 came from additional employer contributions."
April 17, 2011
Senator Brandon Shaffer, co-prime sponsor, SB10-001, Denver Post: “I sponsored last year's legislation, known as Senate Bill 1, to protect PERA. The bill required shared sacrifice, but frankly most of it — 90 percent of the burden — falls on the shoulders of PERA's current and future members and retirees.”
http://www.denverpost.com/opinion/ci_17858107
May 29, 2011
Colorado PERA Executive Director Meredith Williams, Pueblo Chieftain:
“In fact, about 90 percent of the changes enacted by Senate Bill 1 are falling on the shoulders of current and future PERA members and retirees — not other taxpayers.”
COLORADO PERA GENERAL COUNSEL: TO MEET CONSTITUTIONAL MUSTER, A CHANGE TO A PENSION CONTRACT MUST BE THE "MINIMUM NECESSARY."
February 2011
Colorado PERA General Counsel Greg Smith writes in Government Finance Review: "Adjusting public pension benefits in Colorado: a fiduciary process": "Necessity is judged on two levels: 1) whether a less drastic modification could have been implemented; and 2) whether, even with modification, the state could have achieved its stated goals. To determine whether the changes were reasonable, the changes MUST BE THE MINIMUM CHANGES NECESSARY to solve the economic problems of the plan. (See United States Trust Co. v. New Jersey, 431 U.S. 1, 1977.)"
(The next year, [June 26, 2012] Colorado PERA’s independent actuary, Cavanaugh MacDonald Consulting, LLC, reports in the 2011 Colorado PERA CAFR: “It should be noted that the changes made to the PERA structure as a result of SB10-001 have as a goal 100% funding of the accrued liability within 30 years for all divisions. The results of the December 31, 2011, valuations combined with financial projections of all divisions, indicate that this goal, WHICH IS A MUCH STRONGER POSITION THAN REQUIRED TO MEET CURRENT GASB STANDARDS, is still achievable with the exception of the Judicial Division.”
#9: COLORADO PERA'S FUNDED RATIO HAS BEEN MUCH LOWER IN THE PAST, WHILE PERA PENSION CONTRACTS WERE HONORED.
December 31, 2009
At the time of the breach of Colorado PERA pension contracts, the Colorado PERA actuarial funded ratio (AFR) stood at 68.9 percent. This funding level is 9.1 percent below the 40-year average of the PERA actuarial funded ratio. It was 11.1 percent below an 80 percent AFR level considered “well-funded” by Fitch Ratings, 1.1 percent below a 70 percent AFR level considered “adequately-funded” by Fitch Ratings, and 3.1 percent below the Wilshire Associates average U.S. public pension actuarial funded ratio that year. At the time of the contract breach the PERA AFR stood at a level 1.1 percent below the level at which Standard and Poor's considers public pension systems to have "above average" funding. In 2010, the General Assembly determined that the Colorado PERA pension plan faced such financial stress that PERA pension contracts must be broken at a 68.9 percent AFR. Should all U.S. public pension contracts be abrogated at that funding level?
Fitch Ratings (one of the three large rating agencies in the United States): “Fitch generally considers pensions with funded ratios 80% and above to be well-funded.”
“Mr. Williams was quoted in the same report as saying ‘Most pension funds are considered sound at 80 percent funding levels.’”
“Meredith Williams ‘said at the Senate Finance Committee hearing in January that PERA needed to be funded at 100 percent. When the PERA representatives were asked by a member of the committee why in view of the fact that PERA had only been funded at 100 percent for about seven of the past thirty years (My comment, actually two of the last eighty-one years), it was necessary now. The answer was ‘it just makes things easier.’”
Keith Brainard, Research Director, National Association of State Retirement Administrators testifies before the a subcommittee of the U.S. House of Representatives:
“Only 30-40 years ago, most public plans were financed primarily on a pay-as-you-go basis.” “Even after the most recent and unprecedented financial downturn, most state and local government pension trusts have plenty of assets to continue to pay promised benefits for years, and values already have rebounded sharply since the market low.” “The percentage of all state and local government spending on pensions has hovered around three percent during the last decade.”
Fitch Ratings notes that a 70% actuarial funded ratio for public defined benefit pensions is considered an “adequate” actuarial funded ratio. "Fitch generally considers a funded ratio of 70% or above to be adequate and less than 60% to be weak."
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.”
July 7, 2004
PERA response to July 5, 2004, Rocky Mountain News Editorial:
“PERA’s funded level was below 60 percent in 1970, and there was not a perceived crisis in PERA’s financial health.”
PERA official: Legislators say PERA is "too well-funded" at an 87 percent actuarial funded ratio. Colorado PERA Field Education Services Division Director Dennis Gatlin states: “PERA’s funding ratio was at 87 percent (in 1985) and legislators claimed that the association was ‘too well-funded.’ In 1970, the ratio was 54 percent, he added. According to Gatlin, PERA has been overfunded, when its assets equaled more than its liabilities, only twice in its 73-year [My comment: now 82-year] history, in 1999 and 2000.” Silver and Gold Record:
"Note that PERA’s funded status was lower 30 years ago than it is now. You may recall that there was no perceived 'crisis' in PERA’s funded status in 1975.” “What the PERA Board and staff would like is for the funded status curve to be flat or stable at around 80 percent. Why? Because not all benefits are due and payable today or tomorrow . . . PERA can weather the ups and downs in the markets.” “There are legal provisions that protect retirement benefits for current members and retirees, including the contract clause restrictions established by court cases in Colorado and other jurisdictions.”
A Federal Reserve paper, by Ronald A Wirtz, notes that public pension actuarial funded ratios in the 50 to 60 percent range were typical in the 1970s:
“From a long-term perspective, however, one can't really pin too much of the pension problem on the recent stock market pullback . . .". "During the 1970s, funding ratios generally hovered between 50 and 60 percent.” (Yet, public pension contracts in the United States were honored.)
February 24, 2006
“In an e-mailed statement, spokeswoman Katie Kaufmanis said PERA’s funded status at the end of 2004 ‘is the same as the funded status 20 years ago, and there was not a perceived crisis at that time. . . . PERA continues to enjoy positive cash flow and will be able to meet current and future retirement benefit payments for many decades in the future.’”
Silver and Gold Record: “Williams noted that most people don't have enough money to pay off their mortgages, and that PERA's assets have exceeded its total liabilities only twice in its 75-year history. ‘We have 74 percent of the mortgage, but some people are making hay out of that,’ he said. ‘They want to close down your pension fund.’" (Williams later supported the breach of Colorado PERA pension contracts when the Colorado PERA actuarial funded ratio was five points lower than this level.)
https://www.cu.edu/sg/messages/4871.html
June 5, 2006
PERA CAFR: “PERA directs its efforts to keeping the funded ratio (the ratio of assets to accrued liabilities) for the divisional retirement funds at a minimum of 80 percent.” (Page 7)
Silver and Gold Record: “One attendee asked if there was any similar controversy in the 1970s, when PERA's unfunded liability went as low as 54.7 percent. Williams said former Gov. Richard Lamm, who co-chaired the PERA commission, made that same observation last year when he recalled that there was no outcry when he was governor and the unfunded liability was below its current level. Williams compared the unfunded liability to having a mortgage, and asked how many people have enough money on hand at any one time to pay off all or even half of their mortgages.” “He (Meredith Williams) added, however, that since PERA is not permitted to increase member contributions without a commensurate increase in benefits, the money is technically being paid by employers, from their salary-raise pools. Williams said this ‘employer contribution’ will not affect retirees . . .”
https://www.cu.edu/sg/messages/5245.html
December 17, 2009
The Colorado General Assembly's Joint Budget Committee (JBC) meets with representatives of Colorado PERA. Rep. Jack Pommer, Joint Budget Committee Chairman to JBC: “Are we not just saying we’re going to pick 30 years (as a PERA investment time horizon) because if we’re not balanced within 30 years that creates actuarial necessity which then let’s us change retiree benefits?”
Colorado PERA General Counsel Greg Smith on PERA's return assumption:
" . . if we fall short of the 8 percent, what it does is it takes us longer to pay off that unfunded liability, instead of doing it in 30 years it may take us 35 years, it may take us 38 years, it may take us 50 years."
(My comment: Here Colorado PERA's General Counsel admits that the 30-year time frame for amortization of PERA liabilities set in Colorado statutes is arbitrary. The 30-year period is merely an arbitrarily set goal, however this "goal" in Colorado law was used to justify the breach of Colorado PERA pension contracts in 2010. Thus, an important actuarial assumption used to justify the taking of fully-vested Colorado PERA benefits in SB10-001 was arbitrary. This assumption, put in statute by the same General Assembly that enacted SB10-001, was used to calculate projections of PERA's future unfunded liabilities, placing unnecessary financial pressure on the PERA trust funds. Note that just 15 years ago, Colorado PERA's "maximum amortization period" was set in statute at 60 years.
Administrators of public pension funds in the United States expect market volatility. To paraphrase the author of a recent law review: “The unanticipated severity of an anticipated event does not justify unilateral modification of a contract.” In any event, Colorado PERA pensioners, who have fully-vested pension contracts, by design bear no market risk in their DEFINED benefit pension plans.)
“Courts, though, “sit to determine questions on stormy as well as calm days,” and the Constitution was upheld during the Great Depression.”
Colorado Supreme Court Justice Monica Marquez has worked for the defense in the Colorado PERA retiree lawsuit, Justus v. State:
August 30, 2010
Attorney Jean Dubofsky, author of the Colorado PERA "COLA-taking" legal opinion: "I worked on" the case, Justus v. State, with Colorado Supreme Court Justice Monica Marquez. The author of the Colorado PERA "COLA-taking" legal opinion wrote a letter of recommendation for Monica Marquez to serve on Colorado Supreme Court: “In particular, I’ve worked on several cases where she provided superb briefing, argument and/or advice for the Attorney General’s office, including congressional redistricting, the challenges to voter-approved Amendments 41 and 54 to the Colorado Constitution, and the current challenge to the amendments to PERA (Justus v. State), the government’s pension system.”
“ . . . and Ms. Marquez would bring to the court sophistication about the numerous cases that involve, for example, TABOR, ballot titles, election issues, voter-initiated constitutional amendments, property tax, public pensions, labor law, and regulations issued by a wide variety of state agencies.”
“Sincerely, Jean E. Dubofsky.”
(Personally, I believe that Justice Marquez has such strength of character, and commitment to the rule of law, that she could hear the case, Justus v. State, objectively, in spite of her prior work on the case; however, I expect that she will recuse herself as she did in Lobato.)
In 2009, Colorado PERA officials told the members of the Joint Budget Committee that they had obtained outside legal counsel's advice regarding Colorado PERA contractual rights:
December 17, 2009
Colorado PERA General Counsel Greg Smith – “We have obtained outside counsel’s opinion on this issue.”
Attorney Jean Dubofsky, at the request of Colorado PERA, creates a legal opinion arguing that the Colorado Legislature may 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;"
Jean Dubofsky deposition submitted to Colorado PUC stating 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.)
March 7, 2013
Colorado Supreme Court Justice Marquez recuses herself in Lobato case deliberations, since she had previously worked on the Lobato case at the Colorado Attorney General's office: “The seventh, Justice Monica Marquez, recused herself because she had worked on the Lobato case while an attorney with the attorney general’s office.”
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2 thoughts on “The Top Ten: Damning Evidence in the Colorado PERA Retiree Lawsuit, Justus v. State.”
Excellent synopsis! According to my reading, the lawsuit defendants chief argument appears to be a lack of spelled-out "durational" verbiage in statute associated with the 3.5% annual benefit increase. Do they see this as a "silver bullet" in their argument, or am I off course somehow?
The Defendants have testified before the Legislature that paying the PERA COLA is a PERA contractual obligation. If the PERA COLA were "ad hoc" it could be freely adjusted by the pension plan sponsor. It is not an "ad hoc" COLA. If the PERA COLA were an "ad hoc" COLA, PERA officials would not have testified to the Joint Budget Committee that it was a contractual obligation that could not be impaired short of actuarial necessity. Colorado PERA officials and their actuaries and legislative staff have put it in writing many times that the PERA COLA is an "automatic" COLA benefit. The plain language of the PERA statutes states that the COLA "shall" be paid. The Colorado Legislature removed the "ad hoc" language from the PERA statutes years ago. This fact was recently recognized by the Colorado Court of Appeals. In spite of PERA's wishes, an "automatic" pension COLA cannot legally, retroactively metamorphose into a "ad hoc" pension COLA. There is a purpose for the existence of the language "automatic COLA," and "ad hoc COLA" in public pension administration.
The legislative history of the COLA makes it clear that the COLA is a long-term liability of the Colorado PERA pension system. For this very reason, it has been incorporated into actuarial assumptions of Colorado PERA's actuaries, and was described as such a liability by the Ritter Administration in the referenced letter to the federal pension regulator GASB.
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 short, the PERA "silver bullet" you ask about is a "blank." Al
June 17, 2013 03:58 PM UTC
2 Comments
Excellent synopsis! According to my reading, the lawsuit defendants chief argument appears to be a lack of spelled-out "durational" verbiage in statute associated with the 3.5% annual benefit increase. Do they see this as a "silver bullet" in their argument, or am I off course somehow?
Hey hawkeye;
The Defendants have testified before the Legislature that paying the PERA COLA is a PERA contractual obligation. If the PERA COLA were "ad hoc" it could be freely adjusted by the pension plan sponsor. It is not an "ad hoc" COLA. If the PERA COLA were an "ad hoc" COLA, PERA officials would not have testified to the Joint Budget Committee that it was a contractual obligation that could not be impaired short of actuarial necessity. Colorado PERA officials and their actuaries and legislative staff have put it in writing many times that the PERA COLA is an "automatic" COLA benefit. The plain language of the PERA statutes states that the COLA "shall" be paid. The Colorado Legislature removed the "ad hoc" language from the PERA statutes years ago. This fact was recently recognized by the Colorado Court of Appeals. In spite of PERA's wishes, an "automatic" pension COLA cannot legally, retroactively metamorphose into a "ad hoc" pension COLA. There is a purpose for the existence of the language "automatic COLA," and "ad hoc COLA" in public pension administration.
The legislative history of the COLA makes it clear that the COLA is a long-term liability of the Colorado PERA pension system. For this very reason, it has been incorporated into actuarial assumptions of Colorado PERA's actuaries, and was described as such a liability by the Ritter Administration in the referenced letter to the federal pension regulator GASB.
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 short, the PERA "silver bullet" you ask about is a "blank." Al