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Analysis turns thumbs down on pension “consideration” plan

Wednesday, May 16, 2018

* Lari A. Dierks takes a very long, but quite sound look at the pension “consideration” proposals currently under consideration. Her conclusion

Illinois faces drastically increasing pension payments that will continue to strain the revenue available for other vital state services. While current employees’ retirement benefits could be modified through classic contract principles, the illusory proposals offered by Governor Rauner or Senate President Cullerton will likely fail in the courts. To successfully withstand a constitutional challenge, the consideration offered to employees must provide a true benefit that is not currently available to the employee. While this idea is generally inconsistent with the overall goal of pension reform, it may be possible to offer a new, subjectively greater, benefit to the employee that would result in monetary relief for the state.

At the end of the day, significant decisions must be made by the Governor and the legislature to ensure the fiscal health of the state and the pension systems. The Illinois Supreme Court established the boundaries of these potential decisions through its decisions emphasizing that pension benefits may not be unilaterally diminished or impaired. It is true that the court may entertain modification of pension benefits using the classic contract principles of valid offer, acceptance, and consideration. Still, the key to this caveat left by the court focuses on the validity of the consideration offered. The choice between two currently available benefits does not satisfy the test for valid consideration; thus, it is unlikely that the current “consideration” proposals would withstand the court’s scrutiny. Put bluntly, such a false promise of consideration does nothing to rectify Illinois’ growing pension payments and liabilities. Going forward, responsible debate should focus on true consideration, reform of the tax system, or modification of the state’s statutorily required contribution.

The article’s title is “A Lesson from Goodfellas: Why Current Illinois Consideration Based Pension Reform Proposals Still Fail.” I believe it refers to this video clip that you shouldn’t watch if you don’t like profanity or are at work.

- Posted by Rich Miller        

63 Comments
  1. - Ray del Camino - Wednesday, May 16, 18 @ 12:31 pm:

    Fine work by another proud Saluki.


  2. - Roadypig - Wednesday, May 16, 18 @ 12:38 pm:

    Or to put it in a less profane way then the movie Goodfellas, failure to plan on your part does not constitute an emergency on my part. But F U, pay me does sum up the situation legally


  3. - Anonymous - Wednesday, May 16, 18 @ 12:39 pm:

    Maybe the need to seriously consider another ERI. Get rid of the top salary people and either contract out or hire lower paid employees.


  4. - Frank Ambrose - Wednesday, May 16, 18 @ 12:42 pm:

    Now if we can only get those in power to accept this, a clear and accurate analyeis, we could move forward and attempt to find a way to get the state back on a reasonable financial path.


  5. - City Zen - Wednesday, May 16, 18 @ 12:43 pm:

    ==Maybe the need to seriously consider another ERI==

    No thanks. They are always money losers for the taxpayers. If they weren’t, no one would take the ERI.


  6. - Grandson of Man - Wednesday, May 16, 18 @ 12:47 pm:

    I believe this is one area where Democrats should stop being “neoliberals” and start demanding progressive taxation to help pay for pensions. Democrats already forced workers to accept pension cuts, with new workers and Tier II. Enough is enough. It’s time for Rauner, who said he made a lot of money from pensions, and other super-rich to be taxed at rates much higher rates.


  7. - hfkddh - Wednesday, May 16, 18 @ 12:49 pm:

    ‘Put bluntly, such a false promise of consideration does nothing to rectify Illinois’ growing pension payments and liabilities. Going forward, responsible debate should focus on true consideration, reform of the tax system, or modification of the state’s statutorily required contribution.’

    If every member of the General Assembly and the Governor would read and understand these two sentences, then they might be able to get something done.


  8. - Perrid - Wednesday, May 16, 18 @ 12:49 pm:

    I’ve always thought it was weird that Cullerton was trying to split hairs on what a pensionable salary was. He’s trying to have his cake and eat it too; if you told employees to take a reduction in the COLA or never get another raise, in my mind that would pass the constitution. Cause a boatload of other problems, not least with union contracts and step increase, but I think it would pass this test. Not a lawyer so take everything I say with a pound of salt, but it would make more sense to me, more so than making an argument that a salary increase is not reeeeeally a salary increase with regards to the pension.


  9. - buffalo soldier - Wednesday, May 16, 18 @ 12:52 pm:

    If a recent law school grad can understand this, certainly, the General Assembly and the Governor should be able to figure it out.


  10. - Jocko - Wednesday, May 16, 18 @ 12:56 pm:

    I’m hoping this will stop candidates (both incumbents & challengers) from working people up over “Pension Reform” this fall.


  11. - RNUG - Wednesday, May 16, 18 @ 1:03 pm:

    Someone gets it …


  12. - Demoralized - Wednesday, May 16, 18 @ 1:05 pm:

    This is a very interesting read and provides a pretty good overview of the situation. This should be required reading for individuals who want to make changes to pensions. Avenues were laid out to make changes if the powers that be would only take the time to read and actually comprehend what the Court has told them.


  13. - PublicServant - Wednesday, May 16, 18 @ 1:07 pm:

    All salary increases were subject to pension consideration before. Anything less now is pension diminution, and just not workable. If your boss tells you he can’t consider you for a raise because you didn’t agree to reduce your AAI, I’d head straight to court because that’s a pension impairment. On the other hand, if your boss is willing to lie and say you’re work is just not up to par…along with every other 3% AAI employee, I’d still win in court because of the obviousness of the pattern. A law like that is unconstitutional on its face, if the option to keep your current benefits in place without any change to key components of those benefits is not offered. Any first year law student could see that. But there are none so blind as those who will not see. Pay up, or I’ll see you in court.


  14. - wolf - Wednesday, May 16, 18 @ 1:09 pm:

    The “recent law school grad” also ran point on pensions for the House Democratic staff, so safe to say she’s not coming in cold.


  15. - Demoralized - Wednesday, May 16, 18 @ 1:12 pm:

    ==Lari A. Dierks is likely misinterpreting the law.==

    Ok. Why do you say that?


  16. - Streamwood Retiree - Wednesday, May 16, 18 @ 1:13 pm:

    Sure, Anonymous. Just hire some crap employees at minimum wage. Spoken like a true Republican. Only “our sort” need to eat.


  17. - PublicServant - Wednesday, May 16, 18 @ 1:13 pm:

    ===Lari A. Dierks is likely misinterpreting the law.===

    Says who, Clarence Darrow?


  18. - Water Princess - Wednesday, May 16, 18 @ 1:16 pm:

    Lari Dierks is my hero. That’s all.


  19. - Juvenal - Wednesday, May 16, 18 @ 1:30 pm:

    Offering employees a four-day, 32 hour work week is consideration.

    Offering employees an extra 10 days vacation each year is consideration.

    Offering employees a 3- month sabbatical at 30 percent salary every five years is consideration.

    If you want employees to give up money, offer them the one thing no one ever has enough of: Time.


  20. - Anonymous - Wednesday, May 16, 18 @ 1:39 pm:

    Just give me my pension and my cola. Then I’m outta here


  21. - 47th Ward - Wednesday, May 16, 18 @ 1:39 pm:

    Excellent reference to Goodfellas, but when you’re talking contracts and consideration, it’s tough to beat the Godfather, when Vito Corleone and Luca Brasi offer the bandleader $10,000 to release Johnny Fontaine from his contract.

    The consideration there? Either his brains or his signature were going to be on the contact. His choice.

    I always felt like the choice between a career-long pay freeze and keeping the 3% compounded pension bump, vs. annual pay increases but no guaranteed 3% pension hike, was closer to the Don Corleone style than Cullerton would have liked to admit.


  22. - NIMBY - Wednesday, May 16, 18 @ 1:40 pm:

    Lari Dierks was the lead staffer for SB1 on pension reform and point person on house pension and labor committees so it’s safe to say she’s knows what she’s taking about.


  23. - Anon - Wednesday, May 16, 18 @ 1:43 pm:

    Within the next decade there is an excellent chance we see the federal government allow states to file for bankruptcy when it becomes clear that even with progressive taxation there isn’t enough money in the budget to both run the state and meet pension obligations.

    There are a ton of states that will reach that point sooner than later, and when it becomes a national problem because half the state governments find themselves in an unsolvable crisis we will see some action.

    People don’t want to hear that but, but it is the most likely outcome.

    Having states fall apart because even at extortionate tax rates they can’t meet their obligations to run the state and pay pensions is not tenable. States will keep jacking rates higher to cover ever smaller populations as people leave and that is by definition a death spiral.

    I could actually see a scenario at some point in which if the budget gets bad enough we see a governor purposely stop making pension payments to trigger a lawsuit in which the courts can’t solve a situation in which mandatory payments for all state government are larger than available funds.

    So much of Illinois spending is “mandatory” by court decree at this point that it is entirely likely there comes a day where mandatory spending far outweighs ability to pay, and the court has no ability itself to set tax rates.

    This will happen in some state in the next 15-20 years, and only then will the federal government start paying attention.

    People complain now about the budget. They have no idea whats coming when the next recession comes at the same time as the real pension payments start.

    This state will be ungovernable, and that is not an exaggeration.


  24. - Thoughts Matter - Wednesday, May 16, 18 @ 1:54 pm:

    Anon- the state has money to pay the pensions. The unfunded liability assumes every employee will take their pension at the same time, not going to happen. That’s why people bring up recalculating the payment ramp. There is no basis for the state to try to declare bankruptcy over an artificially calculated pension ramp. I’m sure RNUG can explain it better.


  25. - RNUG - Wednesday, May 16, 18 @ 2:02 pm:

    == there isn’t enough money in the budget to both run the state and meet pension obligations. ==

    Then the obvious solution is to do what Arkansas did in the middle of the Depression when they were short of funds: temporarily stiff the bondholders,cut expenses, and eventually (with a bit of Federal help) make everyone whole again


  26. - Oswego Willy - Wednesday, May 16, 18 @ 2:07 pm:

    First, Lari Dierks, great stuff, and any time you can go “Goodfellas” to make a point, you’re in my wheel house of interests.

    Second, the analysis and then comments here, some direct, some less direct, about states and bankruptcy…

    … I can’t take you atcal seriously when Rauner refuses the state having a budget, then still refusing to sign a budget after.

    This state, specifically with Rauner, is fully refusing to engage at the challenges, and purposely trying to play the crisis game to get to a ginned up crisis, manufactured by these refusals and honesty to purpose.

    My point is… we need, Illinois, need a plan that tackles the harsh realities, then assess where the reality meets the crisis.

    Refusing to pay, that’s a manufactured crisis.

    The ILSC ruling makes clear too… we’re paying…

    So, let’s focus on what should and needs to be done, not this bizarre want abd desire for state bankruptcy.


  27. - RNUG - Wednesday, May 16, 18 @ 2:22 pm:

    == So, let’s focus on what should and needs to be done, not this bizarre want abd desire for state bankruptcy. ==

    -OW-,

    if you are into conspiracy theories, the bankers want state bankruptcy or forced 401K govermental plans, so they can get their hands on the last untapped pool of money (goverment pension funds).

    Or we could jhust observe the current Governor only knows how to create business value by bankrupting companies …


  28. - RNUG - Wednesday, May 16, 18 @ 2:25 pm:

    Lari’s paper just got added to Eric Madiar’s Welching article as a “must read” on Illinois government pensions.


  29. - Oswego Willy - Wednesday, May 16, 18 @ 2:29 pm:

    ===if you are into conspiracy theories, the bankers want state bankruptcy or forced 401K govermental plans, so they can get their hands on the last untapped pool of money (goverment pension funds).

    Or we could jhust observe the current Governor only knows how to create business value by bankrupting companies …===

    I was hoping someone with a credibility would go there.

    Yep, that’s my tin foil hat thought. Accidents don’t happen at level of monies. Rauner showed no real concern or worry about not having budgetS… wonder why?

    Another point you’re spot on, - RNUG -

    ===Lari’s paper just got added to Eric Madiar’s Welching article as a “must read” on Illinois government pensions.===

    Yep.


  30. - Al - Wednesday, May 16, 18 @ 2:34 pm:

    Ending the Liquor and Casino monopoly licenses holders taxpayer funded multibillion dollar subsidy will provide ample funds to pay the pensions. Do not believe State financial reports which fail to comply with the full disclosure of financial activities to the public. 20 cents of every State tax dollar goes to the Liquor and Casino subsidy. The corrupt income tax provides for a standard deduction of $2 grand which is $99 a year. You can’t even get 365 serving of rice on 28 cents a day. The income tax receipts and property taxes at 2% of value are how our streetwalkers for the Liquor and Casino hide their filthy deeds in broad daylight. Streetwalkers is an accurate Political Science term for members of the General Assembly.
    People posting with glee the federal government will allow states to declare bankruptcy or the State just could not possibly come up with the money are paid lobbyist of the Liquor and casino industry.
    If we merely adopted Washington State’s whiskey tax rate, Illinois would have $500 million in additional revenue.


  31. - Anon - Wednesday, May 16, 18 @ 2:35 pm:

    I’m with Juvenal, I would take time, whether ERI or other, in exchange for a reduced benefit. Why not survey current members for some idea of what they might agree to.


  32. - Grandson of Man - Wednesday, May 16, 18 @ 2:58 pm:

    Thanks to the contract and collective bargaining, Rauner can’t cater to his supporters and arbitrarily fire bargaining unit workers. Laid off workers would get bumping rights based on seniority in the current contract—something Rauner hates and wants to end.


  33. - illdoc - Wednesday, May 16, 18 @ 3:01 pm:

    Plus, can’t just get rid of tenured faculty at all the Universities


  34. - Mr. K. - Wednesday, May 16, 18 @ 3:03 pm:

    If they cut the work week from 37.5 to 22.5 hours (5 days to 3 days) — I’d take that for a reduced pension.


  35. - Anonymous - Wednesday, May 16, 18 @ 3:19 pm:

    I don’t think that’s a tin foil hat theory. I think that’s the truth. Why whine for years and bring up this debt on every occasion and continue to do absolutely nothing about it and watch it grow into gargantuan multiples? What normal bill paying person does that other than someone seeking bankruptcy or some other draconian event?

    There are solutions now and there wer proposed solutions to attempt to bring down this debt. Those that can take action refuse to. No tin foil hat theory. This is the plan.


  36. - Lucky than Good - Wednesday, May 16, 18 @ 3:22 pm:

    I like Juvenal’s ideas on consideration. They might actually coax a small percentage of employees over to tier 2.


  37. - Texas Red - Wednesday, May 16, 18 @ 3:31 pm:

    =temporarily stiff the bondholders

    Good luck with that; pension may have “shall not be diminished or impaired”, but remember that GO bonds have “full faith” and “irrepeabale”.

    ” All Bonds issued in accordance with the provisions of this Act shall be direct, general obligations of the State of Illinois… and the full faith and credit of the State of Illinois are hereby pledged for the punctual payment of the interest thereon as the same… and the provisions of this Section shall be irrepealable until all such Bonds are paid in full as to both principal and interest.


  38. - Demoralized - Wednesday, May 16, 18 @ 3:32 pm:

    ==Those that can take action refuse to==

    They haven’t refused to, and in fact have taken action. Tier II was a pretty big action.

    The issue is the unwillingness to use the roadmap given them by the Court and draft a plan that follows that map. As long as they continue to try and reduce benefits they are, as you said, wasting time and watching the problem continue to grow


  39. - RNUG - Wednesday, May 16, 18 @ 3:44 pm:

    == and the full faith and credit of the State of Illinois are hereby pledged for the punctual payment of the interest thereon ==

    The Legislature can just change the meaning of punctual like they did for the Prompt Payment Act …


  40. - Sue - Wednesday, May 16, 18 @ 3:46 pm:

    Cullerton’s plan won’t survive a constitutional challenge. The only avenue would have been the State’s police powers but the S Ct refused to accept that argument. There was precedent under a Kansas State case during the 30’s where the US Supreme Court permitted the abrogation of public contracts during the depression. The Illinois Ct held the State created this mess and would not apply the Kansas type of ruling. Perhaps when things get truly dire 10 years from now the Court might reconsider but for now get used to more taxes and far fewer State provided services


  41. - Anonymous - Wednesday, May 16, 18 @ 3:58 pm:

    Correct that Tier 2 was a pretty big action taken.

    How many years have passed with nothing but watching the debt grow and accompanying whining?

    We don’t tolerate whining from children. Why tolerate from our adult leadership?


  42. - JS Mill - Wednesday, May 16, 18 @ 4:12 pm:

    = if you told employees to take a reduction in the COLA or never get another raise, in my mind that would pass the constitution. Cause a boatload of other problems, not least with union contracts and step increase, but I think it would pass this test.=

    You need to read this…

    = The choice between two currently available benefits does not satisfy the test for valid consideration; =

    =People complain now about the budget. They have no idea whats coming when the next recession comes at the same time as the real pension payments start.=

    Except that the pension ramp actually will go down and pension payments will level off before they actually decline due to Tier II. So your argument does not hold water. You want bankruptcy, because the idea of stiffing public employees is appealing to you and those like you. Jeepers, I wonder what kind of impact that would have on the state economy? For 95% of pensioners, the pensions are modest and reasonable.

    If the pension is not sustainable, help me understand why the funded/unfunded percentage has held relatively steady for nearly 50 years? Very seldom has the pension fund actually needed to dip into the principle to make annual payments to annuitants.

    The amount of debt will decrease, just not in the immediate future, Tier II takes care of that.


  43. - Juice - Wednesday, May 16, 18 @ 4:22 pm:

    Texas Red, that’s a statutory protection, which would be trumped by the constitutional protection offered to pensioners.


  44. - Anonymous - Wednesday, May 16, 18 @ 5:20 pm:

    Been retired since 12.31.11. Paid all of my costs into the system. State did not. Am not willing to take any cuts whatsoever. With luck, may last another 10 years. Just pay me what was promised.


  45. - Ron - Wednesday, May 16, 18 @ 5:54 pm:

    Where will the money come from as it stands illinois has the fifth highest state and local tax burden in the nation. We are losing population faster than any state other than West Virginia.


  46. - Demoralized - Wednesday, May 16, 18 @ 6:09 pm:

    Ron

    How about you just type your name and submit a blank comment and we’ll all concede that you meant to say the same thing you’ve said 10,000 times before.


  47. - Morty - Wednesday, May 16, 18 @ 6:34 pm:

    Demoralized, the crazy guy screaming at the heavens on the street corner isn’t actually looking for a response ;)


  48. - Steve - Wednesday, May 16, 18 @ 7:20 pm:

    Offer to buy out pension. I guarantee many will take the lump sum if its generous enough.
    Offer it to them tax free.


  49. - walker - Wednesday, May 16, 18 @ 7:45 pm:

    What RNUG correctly told us 2 years ago. Why don’t we stop wasting everyone’s time and limit all pension discussions and “proposals” to fiscal plans to pay off the pension debt over time. We did it before; we can do it again.


  50. - Anonymous - Wednesday, May 16, 18 @ 8:23 pm:

    I’m not so sure many would take the lump sum pay out. Most public employees aren’t paid enough to have much other retirement savings. Not because they didn’t save, but because there wasn’t anything left after paying for necessities. They don’t make much. Fact. For many, the pension IS the retirement plan. There is no 3-pronged savings plan. Although all we hear about is the outliers making a fortune, they are outliers.


  51. - Anonymous - Wednesday, May 16, 18 @ 8:27 pm:

    I would also take a lessor Pension for a ERI. I would retire today with a lessor Pension if allowed.

    Or

    A lessor Pension for more vacation time as others have stated.

    I would not agree to go to tier ll.


  52. - wondering - Wednesday, May 16, 18 @ 8:29 pm:

    The COLA problem is going to evaporate. We are on the road to inflation. The federal tax cut and deficit ensure it.


  53. - Ed Higher - Thursday, May 17, 18 @ 9:00 am:

    ===Juvenal=== You can’t eat vacation days or pay the rent with them. Many state employees already have plenty of time off. What they would like is not to have to have that 2nd or 3rd job.


  54. - PublicServant - Thursday, May 17, 18 @ 10:07 am:

    ===The COLA problem is going to evaporate. We are on the road to inflation. The federal tax cut and deficit ensure it.===

    Another Chicken Little with a Crystal Ball heard from. It’s not a COLA, and can I use the crystal ball after you’re done with it? Thanks.


  55. - Da Big Bad Wolf - Thursday, May 17, 18 @ 1:12 pm:

    Bankruptcy for states is just not going to happen. The creditors, venders and bondholders, etc. will argue in front of the judge that the state can always increase its revenue, which it can.
    A state can also default on its bonds without a bankruptcy judge a la Arkansas, but good luck ever selling another bond. It took decades for Arkansas to refinance their bonds, and in the end they did it by raising taxes anyway.


  56. - A State Employee Guy - Thursday, May 17, 18 @ 2:35 pm:

    Aside from giving disgracefully short shrift to the specifics inventive proposal (maybe by design), the author fails to point out that subjects of collective bargaining can without question be set by statute; a number of states use the “laundry list” approach, which explicitly says what subjects are or are not allowed to be bargained. So, if the GA wants to statutorily set OT at 40, change vacation benefits, and F with bumping rights, they’d be able to do so. The argument that these things are Art 5-protected pension benefits is, quite frankly, laughable.


  57. - A State Employee Guy - Thursday, May 17, 18 @ 2:37 pm:

    Ugh, autocorrect. “The specifics of the incentive proposal.”


  58. - Anonymous - Thursday, May 17, 18 @ 6:40 pm:

    - A State Employee Guy - Thursday, May 17, 18 @ 2:35 pm:

    Vacation days are already low and not better and in many cases worse then the private sector.

    I know. I came from 22 years in the private sector.


  59. - Anonymous - Thursday, May 17, 18 @ 6:43 pm:

    Many other State employees would rather have the time and live very simple lifestyles.


  60. - Anonymous - Thursday, May 17, 18 @ 6:43 pm:

    - Ed Higher - Thursday, May 17, 18 @ 9:00 am:

    The above is in response to Ed Higher


  61. - Anonymous - Thursday, May 17, 18 @ 6:46 pm:

    Yes, money is tight but so is time.

    Give me more vacation and I will accept a reasonable adjustment in my pension or an ERI.


  62. - wondering - Friday, May 18, 18 @ 7:12 am:

    Public Servant: You split hairs. In the vernaculur here, it is referred to as COLA. Indeed, it was intended to adjust for inflation, but capped. Many economists are predicting inflation.


  63. - wondering - Friday, May 18, 18 @ 7:31 am:

    vernacular…My point, was/is, the 3.0% seems high during these times, but it is a long term a match to the 50 plus year 3.1% average inflation average. Do you advocate a true COLA?


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* Williams has full confidence in Renteria, staff


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