The legal debate over Cullerton’s latest pension theft proposal.

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Gino DiVito, attorney for the Illinois Retired Teachers Association, successfully arguing against pension theft before the Illinois Supreme Court.

A few weeks ago I wrote some blog posts about an op-ed piece and a longer article penned by attorney Eric Madiar.

Who is Eric Madiar?

He is the former lawyer for Democratic Illinois Senate President John Cullerton and advised him on pension law.

Madiar has a history of correctly warning the Illinois legislature that the Illinois Constitution and contract law give them limited options for messing around with our pension benefits.

The Article XII, Section 5 pension protection clause prohibits any diminishment or impairment of our benefits. The Illinois Supreme Court upheld the broad application of the pension protection clause in its historic ruling in May of 2015.

But now Madiar offers legal support for Cullerton’s pension reform, an idea that provides hope to Mayor Emanuel and Governor Rauner in their pursuit of cutting a deal reducing current employees’ future benefits.

Cullerton’s reform, supported by Madiar, is an attempt to meet the contractual legal requirement of consideration.

What is Consideration? Consideration requires that any agreement to change a contractual arrangement, such as retiree pension benefits,  provide in exchange something of equal or greater value.

Madiar believes that public employee unions could bargain pension benefits using the consideration of forced choice.

Cullerton would  have current employees choose between COLA increases in retirement or pensionable salary.

How does a choice between two diminishments meet the definition of consideration?

It doesn’t.

Dino DiVito and John M. Fitzgerald are lawyers who represented the Illinois Retired Teachers Association (IRTA) in the case against pension theft in Senate Bill 1. DiVito made the main oral argument before the Illinois Supreme Court when the Court ruled in our favor.

Yesterday CapitolFax posted an opinion by DiVito and Fitzgerald challenging the constitutionality of Cullerton’s forced choice proposal and disagreed with Madiar’s legal arguments.

It is worth a read.

DiVito and Fitzgerald write:

Mr. Madiar concedes that Illinois decisions have “invalidated legislation that unilaterally narrowed the statutory definition of pensionable salary,” but he argues that none of those decisions “involved an express offering of future salary increases on a non-pensionable basis” (emphasis in original). To us, that is a distinction without a difference. Changing the law to provide that future salary increases will not count towards one’s pensionable salary constitutes a diminishment of one’s constitutionally protected pension rights. Such a change would suffer the same fate as other changes to the Pension Code’s formulation of one’s pensionable salary.

Nor is the outcome different simply because a pension system member is given a “choice” between two alternative pension diminishments. Mr. Madiar argues that a diminishment of pension rights may be constitutionally valid if it is part of a “bargained-for exchange.” This argument may have persuasive force if a pension system member is being offered some new benefit in exchange for surrendering a pension right. In the Cullerton proposal, however, there is no new benefit. Under that proposal, at best, a pension system member is permitted to keep the current statutory treatment of his or her pensionable salary.

…….

Mr. Madiar also argues that the “choice” imposed on pension system members by the Cullerton proposal is not tantamount to duress. Even if true, that point would be irrelevant. If both options presented by the Cullerton proposal are unconstitutional pension diminishments, then the proposal would be invalid regardless of whether it constitutes duress in the legal sense.

In conclusion, we applaud Mr. Madiar for his continued scholarship on this crucial legal subject. We also agree that creative ideas will be necessary to address the chronic problem of pension system underfunding in this State. We strongly believe, however, that this particular proposal is unconstitutional.

What DiVito and Fitzgerald do not say in their CaptiolFax opinion is that the only real creative idea that will work is to fully fund the pension systems by raising adequate revenue.

Random thoughts. Frank Wills and Wikileaks.

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Frank Willis was the guard at the Watergate who alerted the police to the break-in.

I am writing this at a little past noon on the first day of the Democratic National Convention.

Democratic National Chairwoman Debbie Wasserman Schultz has just been booed off the stage where she was speaking in front of the Florida delegation. From all reports, it wasn’t just Sanders’ people booing. It was Sanders and Clinton delegates.

Is Clinton really going to put this woman on national television tonight?

Nate Silver says if the election were held today, Trump would win.

Clinton is on track to give it all away. It will be an incredible accomplishment against Trump, who is polling zero among African  American voters in key industrial states like Ohio and Pennsylvania.

Clinton’s people are blaming the leaks on the Russians.

They say we shouldn’t call it leaking emails. We should call it stealing emails.

No. We should call it stealing an election. Debbie Wasserman Schultz and the DNC broke the rules and secretly supported Clinton over Sanders. When Sanders people said so, they were dismissed and called conspiracy theorists.

I am being told that the leaking of DNC emails was like the break-in at the Watergate by Nixon’s  Plumbers.

No, no. Nixon was trying to steal an election. So was the DNC.

Wikileaks is like Frank Wills.

Mr. Wills was the security guard at the Watergate who discovered the break-in and alerted the police.

You know who is scared this afternoon?

First are the Republicans who would not support Trump. Trump is a son-of-a-bitch and very unforgiving. If he wins this thing, they are screwed.

Scared as well are Clinton Democrats who are watching as she gives this thing away. As well they should be.

I ain’t afraid of no ghosts.

But I am shaking my head as Clinton and her apologists  as they double down on Schultz, making her honorary campaign Chair.

I’m sort of looking forward to her gaveling the convention open tonight. Trump’s speech was long and boring. It was hard to stay awake.

Schultz won’t have any trouble keeping me awake.

The whole world will be watching.

 

Love right-to-work and low wages? Indiana is the place. Pence is the guy.

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Whenever Republican Governor Bruce Rauner and his legislative supporters (like Ron Sandack) talk up their Turnaround Agenda of low corporate taxes and right-to-work, they love talking about how great Indiana is.

They’re right.

If you love having the right to collective bargaining taken away and shitty wages, Indiana is the place.

Crain’s reports that with Republican’s Mitch Daniels and Mike Pence as governors, Indiana has the lowest wages of any state in the mid west.

Illinois has the highest.

Low wages are what Rauner, Pence and Trump call a “business-friendly climate.”

Of course low wages are business friendly.  Unless the business wants to have customers who earn enough money to buy things.

One of the reason’s wages are low is that Mike Pence’s Indiana is a Right-to-Work state.

Oneof the reasons Illinois’ wages are the highest in the mid west is that Illinois is a union state.

That’s how it works.

Illinois Republican State Rep. Sandack’s mysterious resignation. I’m thinking he suddenly wants to spend more time with his family.

Ron Sandack and Dan Biss on the Daily Show.

Last night news broke that Republican State Representative Ron Sandack suddenly resigned his post claiming “cyber security issues.”

What the hell is that?

Sandack is known for being active on Twitter and Facebook.

Sandack resigned from the Illinois House because he was cyber bullied?

C’mon.

I’m thinking Anthony Weiner. Which is a very disturbing image to have in my head before my second cup of coffee.

Glen Brown wrote about Sandack last May.

Months ago Sandack told me not to send him e-mails anymore because I referred to some legislators as liars and thieves. I wrote him back and asked: what should I call people who disregard truth and steal what other people have earned? He did not respond.

Ronald Sandack and others like him chose not to honor their oath of office in December, 2013 when they voted “Yes” to break a constitutional contract (SB 1) with public employees. Breaking a promise is a theft of “trust.”

Regarding the importance of keeping the income tax rate at 5% for maintaining the State’s fiscal health, Sandack was quoted yesterday in the Chicago Tribune:

“Maybe we’ll get a voice this time,” Sandack said. “It’s simple: the tax increase is a bad idea. It’s a renege of a promise that it would be temporary, and I’m glad at least 30 Democrats saw that for what it is.”

In the book, The 48 Laws of power by Robert Greene, there is an appropriate allusion to describe the many politicians in the Illinois House and Senate. It’s called “The Liar”:

“Once upon a time there was a king of Armenia who, being of a curious turn of mind and in need of some new diversion, sent his heralds throughout the land to make the following proclamation: ‘Hear this! Whatever man [or woman] among you can prove him [or her] self the most outrageous liar in Armenia shall receive an apple made of pure gold from the hands of His Majesty the King!’

“People began to swarm to the palace from every town and hamlet in the country, people of all ranks and conditions, princes, merchants, farmers, priests, rich and poor, tall and short, fat and thin. There was no lack of liars in the land, and each one told his tale to the king. A ruler, however, has heard practically every sort of lie and none of those now told him convinced the kind that he had listened to the best of them.

“The king was beginning to grow tired of his new sport and was thinking of calling the whole contest off without declaring a winner, when there appeared before him a poor, ragged man, carrying a large earthenware pitcher under his arm.

“‘What can I do for you?’ asked His Majesty.

“‘Sire!’ said the poor man, slightly bewildered. ‘Surely you remember? You owe me a pot of gold, and I have come to collect it.’

“‘You are a perfect liar, sir!’ exclaimed the king. ‘I owe you no money!’

“‘Then give me the golden apple!’

“The king, realizing that the man was trying to trick him, started to hedge. ‘No, no! You are not a liar!’

‘Then give me the pot of gold you owe me, sire,’ said the man.

“The king saw the dilemma. He handed over the golden apple.”

(Armenian Folk-Tales and Fables, retold by Charles Downing, 1993)

Jonathan Halabi at the AFT. The wrap up.

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Jonathan Halabi (left) and Arthur Goldstein cover the AFT for their blogs.

-Jonathan Halabi is a New York City teacher, union activist and blogger at JD2718. I have been reposting his reports from the American Federation of Teachers convention in Minneapolis which wrapped up last Thursday.

AFT Convention 2016. Ended three days ago. What do I take away from Minneapolis?

This was a better convention then my two previous. It was very different from my two previous, 2010 and 2014.

  • There was a presidential endorsement. Which meant a lot of supporting speakers, the usual cast of politicians, plus the candidate. That was different, neither better nor worse, just what the AFT does. But it ran through the convention, from the first day to the last, with regular digs at the RNC in Cleveland.
  • Social Justice. Fairness. Equality. Fight back against hospital consolidation (and conglomeration). ¡Si se puede! Remove block on funding for research on gun violence. Support work of the AFT Racial Equity Task Force. No more Flints. Stand with Planned Parenthood. Girls and Young women’s education. And a special order of for safe communities and racial justice (these should have been separate resolutions. I mentioned in a previous post that the motivation for this was the most electric speech of the convention).
  • Economic Justice. Against income inequality. Oppose the TPP. Crackdown on offshore tax havens. End out-of-control drug prices. Rein in abusive medical billing and crippling debt. Overturn Citizens United. Fight against student loan debt. Ending garnishing social security to pay student debt.  Planning for the wave of state and local public employee retirements. Paid sick days. More accurate COLA for Social Security. Protect and expand the Social Security Safety net. Full funding.
  • Fighting in education and nursing. Fight against unfair employment practices in higher education. Sepsis awareness. Professional standards for healthcare workers. Support, respect PSRPs. Summer nutrition programs. Safe schools for all. Organizing (three resolutions)
  • No hot K-12 issues. My previous two conventions were dominated by the ruling caucus from the UFT, Unity, introducing and fighting for pro-reform k-12 resolutions. Last convention Michael Mulgrew threatened to punch anyone who tried to take away “Common Core.” This time? Nothing like that. The ESSA resolution was positive/neutral. And the CTE resolution was positive. And the AROS resolution got a lot of attention from progressive unionists.

ESSA Resolution Highlights:  Fight for Neighborhood Schools (what a change that would be for NYC), elevate teacher voice, framework of indicators broader than test scores, better and fewer tests, better teacher evaluation / multiple measures / no value added (still not good enough, but a huge step back from a few years ago), good PD (ugh)…

What is AROS? Alliance to Reclaim Our Schools. It coordinates union/community action in support of public schools, and has organized two major national “walk-ins” (not walk-outs). The resolution promises support for local action, and builds for coordinated local action involving at least 1000 schools in October.

An equivocal charter resolution did not come to the floor. The AFT leadership is not ready yet to oppose charters (or oppose high stakes testing). But they did have the sense not to push their unpopular positions forward and disrupt the proceedings.

Reasonable resolutions are one thing, undoing the damage the AFT contributed to by trying to compromise with the reformers over the last decade is another. We are not there yet.

  • More negotiating in committee, or outside of committee, less yelling on the convention floor. More talking and testifying on the floor. That’s just what happens when there’s fewer hot issues. People got up and spoke to resolutions that might not have been paid much attention – and explained why they were important. It meant we heard from a lot of regular delegates, from all over the country. That was good, very good. There was only one, marginal caucus in opposition. Their procedural arguing got tiresome, but not disruptive.
  • No pro-war resolutions. We had a resolution against the global privatization of education and public services, and an anti-Islamaphobia resolution. What a nice change from previous years when we had to listen to official speakers channel the war criminal Dr. Kissinger. Unfortunately, the resolution to support academics in Turkey did not make it to the floor. And as the convention opened, Turkey’s government was stretching their counter-coup into the schools and universities. That being said, the resolution would have done little more than raise awareness.

Summary:  The AFT was consumed by the presidential endorsement, and kept the rest calm. The convention did a solid job on social justice, racial justice, and economic justice. The AFT is not yet ready to reverse course on the bad compromises they made with anti-public education reformers in the last decade plus, but they are slowly backing away.

Here is a link to many of the resolutions.

Here’s my tweets from the convention:  @jd2718x

Here’s my blog posts:

There’s one more post coming – about visiting Minneapolis, about meeting people, about sightseeing, about food, about conversations (don’t worry, if you are reading this, I’m not writing about that conversation)… but this is it on the big issue politics.

Mark Stefanik’s letter from Galway. Trump the Intruder.

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-By Mark Stefanik. Mark is an old friend, middle school Language Arts teacher and union activist.

Rick Blaine came to Casablanca for the waters; I have come to Galway for the races.

Rick needed anonymity to elude the Nazis and to deny his grief.  I seek anonymity to confront my grief, to patch that bruised and battered sense of self that accompanies losing my mate of 38 years.  

This will not be a blog about grief, however; I’m still too busy navigating those seas to offer directions. Rather, I want to address the concept of intrusion, of a world disrupted not by an event but by the presence of just one person.  Recall Rick’s iconic lament: “Of all the gin joints in all the towns in all the world, she walks into mine.”

In Casablanca he got Elsa.

In Galway I got Trump.  

I’ll get on with it momentarily, but first, perhaps, I should explain my choice for ‘of all the towns in all the world.’  It’s a bucket list thing.  The Irish are mad for their horse-racing, and the peak of that madness occurs in late July with an entire week of racing and partying.  The hub of Galway is Eyre Square, a grassy park dotted with sculptures and statues, from which the streets branch out like so many spokes, each lined with shops and pubs and ancient churches.  There are brilliant flowers everywhere in window boxes and on the riverfront lawns.  Street musicians play in singles, pairs, or complete bands.  The food, as they say, is brilliant.  In fact, the only native contradiction to this idyll was a humorous one.  A seagull the size of a small drone swooped over a man walking in front of me and deposited a massive amount of what might be described as licorice-veined yogurt down the fellow’s back.  And if all of this is not enough to distinguish Galway, the prominent statue of Oscar Wilde speaks volumes about the culture of the town.

So, a good escape for me until the shield of my anonymity was pierced.  

There are folks from all over the world visiting Galway, but there aren’t so many Americans that my Chicago accent goes unnoticed.  Indeed, I had hoped that my voice would be a conversation  starter and it was, but that’s where the intrusion became nearly universal.  I do not exaggerate when I state that within 1-2 minutes of establishing my ‘American-ness’, I’d get the one word question, “Trump?” and we’d be off on the daft, and to many Irish, frightening turn in American politics. I’d want to talk about the races or the arts festival or books or food; instead, I’d be detoured by the new Gaelic-American ice-breaker-Trump.

Intrusion.

I finally had a good conversation late last night riding home on the bus with a retired professor.  Of course I had to put the ‘intrusion’ to rest, but the ride was long enough that we could actually discuss what we were currently reading.

And lest you think that this talk is just gab and the world famous Irish charm towards visitors, let me quote my host when we were having one of our first talks.

“We have Putin on one side of us, and now it looks like Trump on the other side.”

These are not polite jests to a Chicago boy about Al Capone or Michael Jordan.  In 1968, protestors at the Democratic National Convention coined the phrase, “the whole world is watching.”

It still is.

So be forwarned, if you’re planning to travel outside the USA, you travel as a wee ambassador.  Get Uncle Sam representing freedom and prosperity out of even your wildest assumptions about perceptions of our country.  Instead, prepare for the ‘intrusion’, and, like me, resign yourselves to the fate of Lucy Ricardo when confronting a world of Ricky Ricardos:

“You got plenty of ‘splaining to do.”

Rauner: A quick glimpse and confirmation.

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-John Dillon. John blogs at Pension Vocabulary.

(Given recent events, a revised blog from February)

On his way to seek what he believed to be his earned right as consul of Rome, businessman Marcus Crassus had the Appian Way adorned with the crucified bodies of slaves who had been bold enough to revolt: exactly one hundred and seventeen paces between each, seventeen crucifixions per mile on either side, six thousand suffering souls along three hundred and fifty miles of roadway.

 Twenty of the slaves were held up along the march to Rome, so they could construct the crosses, unseen by their fellows marching ahead.  After they were done with their toil, they were crucified. 

 Like today’s business-savvy politicians, he well knew the importance of coercive control and hidden agendas. The last thing Crassus wanted was another revolt, another Spartacus – a cornered adversary. 

Now, according to released emails in which Rauner characterized CPS principals and “managerially incompetent” and instructors as “illiterate,”  his spokesperson Lance Trover has been forced to admit that the governor’s thoughts were hasty or intemperate or even “inaccurate.”  If you are a public school teacher – especially in Chicago – it’s kind of like the dutiful Roman soldier dealing with a horrified group of captives who had happened to look back too soon. 

And now it’s out.  Hidden tantrums and vicious slanders between Rauner and his wealthy advisors/friends – Zell, Pritzker, Emanuel, Griffin, etc.  A man who has accidently uncloaked his naked, venomous aversion for all things public – schools, workers, human services. 

Read the entire post here.