Another COLA brief and O.J.

Pro Se plaintiff Charles Ouslander filed another brief on November 13 with the New Jersey Supreme Court in the Cost-of-Living-Adjustment (COLA) case which essentially called the state’s arguments idiotic. Though he never used that word he used several similar ones (emphasis added):

The State’s obstinate unwillingness to read the statute in accordance with well established rules of statutory construction, especially in light of the law and public policy supporting the protection of public employees’ rights, is a testament to its effort to divert attention from the State’s unrelenting refusal to properly fund the pension system. (page 1)

the State repeatedly elides any attempt on its part to properly construe this dispositive phrase. (page 2)

the State’s arguments that COLAs are not protected pension benefits is a conceit premised on a brazen disregard of the most fundamental principles of statutory construction. (page 2)

Tellingly, the State does not, and presumably cannot, set forth any argument – beyond a naked assertion – as to why COLAs are not subsumed within the meaning of the term “benefits program”. (page 3)

The State, however, stubbornly, and therefore tellingly, refuses to acknowledge the ordinary and well-understood meaning of the phrase “benefits program” as it applies to those retirement benefits which are subject to the non-forfeitable right statute. (page 4)

the State’s claim the non-foreitable right lacks specific terms that are contractually protected is simply wrong. (page 5)

Presumably, the dictionary used by the State also included definitions for the same words they now claim the Legislature failed to adequately explain, specifically the meaning of the words “benefits” and “program”. (page 6 footnote)

The State’s bizarre and unpersuasive claim that the pension adjustment statutes are not part of “the laws governing the retirement system” is erroneously based on the placement, numbering and statutory citation of the law, as opposed to its substantive legal effect over a specific subject. (page 10)

Moreover, the State’s ongoing failure to even acknowledge, let alone address, the extensive body of decisional authority requiring that pension statutes be liberally construed for the person intended to be benefited in this context is simply bewildering. (pages 10-11)

The State’s assertion that the Appellate Division misconstrued Senator Inverso’s statements, the legislative history of the non-forfeitable right and the circumstances in which it was created is both strained and disingenuous. (page 14)

the State’s claim that ERISA is irrelevant in interpreting the non-forfeitable right is wholly specious. (page 15)

The State’s claims that COLAs are not earned benefits and are therefore not within the protected coverage of the non- forfeitable right are also – individually and collectively – demonstrably incorrect. To arrive at this patently erroneous conclusion, the State – yet again – simply disregards applicable, binding law and legislative history in our State. (page 16)

Curiously, the State, once again, fails to provide this Court with binding, precedential legal authority that is both on point and dispositive. (page 17)

Despite the Appellate Division’s clear, comprehensive and correct legal analysis that the Debt Limitation and Appropriations clauses in our State Constitution are simply inapplicable to the disbursement of monies from State pension funds, the State unreasonably continues to rely on these provisions. (page 18)

The State disfigures beyond recognition this Court’s holding in Burgos v. State, 222 N.J. 175 (2015), by arguing that “in order to preserve base pensions for active employees, the State would be compelled to appropriate money to cover COLAs.” (page 19)

What the State is actually arguing is that because of its steadfast, repeated and ongoing failure to properly fund the pension system for the last twenty years, it has resorted to holding onto earned pension benefits, which should be disbursed, in the hopes of extending the solvency of the pension funds. (page 19)

 

The state still has to file its final brief and a decision will probably come down around February which may tell us more about the merits of the judges than the case.

It is obvious now that O.J. Simpson killed two people (that we know of) and it was the criminal justice system as applied to celebrities that was on trial in his case as the jurors were confused into ignoring the obvious.

Likewise this COLA case is clear-cut yet it will be decided by a group of people who owe their jobs to a governor and legislature* who prefer to see a particular outcome and, if the state comes up with anything that this court can latch onto without too much embarrassment, they might get it.

.

.

.

* Yes even the Democrats in the legislature who get all that union campaign cash would want to see COLAs eliminated since those union donations are secure while not having to put money into the pension fund would free up funds to repay their other backers.

35 responses to this post.

  1. Posted by Tough Love on November 28, 2015 at 7:18 pm

    It’s really a shame that the State has to concoct a supposedly defensible position instead of laying the NAKED TRUTH on the table…….

    That multiple administration succumb to the financial lure of Public Sector Union campaign contributions and election support, and knowingly violated their fiduciary responsibility and allegiance to ALL of NJ’s Taxpayers (NOT just the PUBLIC Sector workers) by granting pensions and benefits that either they KNEW (or should have known) were FAR greater than necessary to attract and retain a qualified workforce, were many multiples greater in value than the pensions granted comparable Private Sector workers, and were CLEARLY unaffordable.

    Pension & benefits so fraudulently granted should NOT be honored …. and NOT funding them is the CORRECT and RIGHTFUL action to take for ALL of NJ’s betrayed and beleaguered Taxpayers.

    Reply

    • Posted by The Resident Nutcase on November 28, 2015 at 7:55 pm

      It’s really a shame that the State has to concoct a supposedly defensible position instead of laying the NAKED TRUTH on the table…….
      That multiple administrations failed to make the required contributions into the pension creating this fiscal Avalanche that will need to be repaid by current and future taxpayers. While public employees especially the safety pensions have never missed one payment in years, the state has failed to keep up its end of the deal. And instead of making things right, they attempt to lay blame, as well as other idiots on this blog, on the workers backs and their union representation. Make the payments!!!!!!!!

      Reply

      • Posted by Tough Love on November 28, 2015 at 8:14 pm

        Funding requirements FOLLOW FROM (and are in DIRECT PROPORTION TO) the “generosity” of the Plan, a very generous Plan being very costly, and hence very difficult to fully fund.

        The lack of full funding is not the CAUSE of the pension mess in NJ, but a CONSEQUENCE of the real ROOT CAUSE …. grossly excessive pension & benefit “generosity”.

        Reply

        • Posted by Tough Love on November 28, 2015 at 8:19 pm

          And to prove my “point” by example……..

          If NJ’s Plans were 10 times MORE generous (than the already ludicrous level in place today), YOUR position would remain the SAME ….. “make the payments”.

          How absurd ………… the reasonableness of “funding requirements” can ONLY be analyzed by considering the reasonableness of the Plan’s “generosity”.

          Reply

      • The state employees made the payments they were legally required to make, but what they were legally required to make were a tiny portion of what honest actuaries would have recommended that they make. For years, pension contributions for NJ employees were much lower than 5% of salary because the unions wanted those payments to be as low as possible.

        As others have said, the pension contracts are in a different realm than all other contracts.

        If you hire someone to do something for you, the person you are hiring has no influence over you other than the demonstrated quality of their work and through requesting a reasonable compensation. The person can’t do anything equivalent to electorally or financially pressuring you to hire him or her. Also, any contract you make is paid off by _you_, not people 20-30 years in the future.

        I don’t see these pension “promises” as having the sacredness that promises made in a regular contract have since the negotiating process behind union contracts is so completely different. No other employees can “elect their own boss.”

        Reply

    • Posted by Anonymous on November 28, 2015 at 8:28 pm

      make the payments moron, they will come out of your paycheck! AND NOTHING YOU CAN DO ABOUT IT!

      Reply

  2. Posted by Tough Love on November 28, 2015 at 8:07 pm

    Quoting …. “Likewise this COLA case is clear-cut yet it will be decided by a group of people who owe their jobs to a governor and legislature* who prefer to see a particular outcome and, if the state comes up with anything that this court can latch onto without too much embarrassment, they might get it.”

    Or ….. perhaps it will be decided by wise men who realize that the COLA suspension (if not technically defensible) is the best (and ONLY realistic) choice from a menu of very poor options. Wasn’t than the basis for the Congress’s recent (and startling) decision to allow reductions in the already ACCRUED pensions in Multi-employer Plans ?

    ————————————–

    And speaking of VERY poor options, do you believe that the NJ pension Commission WANTED to recommend freezing DB Plan accruals for all current workers and materially reducing their healthcare coverage and premium subsidy ?

    Of course not ………… but like just as in the COLA fight, it’s the best (and only realistic) choice from a menu of VERY poor options.
    ————————————–

    Sometimes you just HAVE TO get your head out of your a** and choose from the short list of REALISTIC options….. that’s called leadership.

    Reply

  3. Posted by Anonymous on November 28, 2015 at 8:56 pm

    The COLA briefs from both sides have more holes than hand me down briefs most of us have expirenced during our childhood!

    Reply

    • Posted by S Moderation Douglas on November 28, 2015 at 11:09 pm

      Maybe they should go commando.

      Reply

      • Posted by Tough Love on November 28, 2015 at 11:27 pm

        Welcome SMD. Feel free to leave some of your BS here too ………. care to critique my commentary so far ?

        Reply

        • Posted by The Resident Nutcase on November 29, 2015 at 12:06 am

          It’s been critiqued to death. It’s the same old copy paste venom. Nothing new!!!
          Decades of not funding the pensions is the root cause.
          You’re idea of equal and fair falls short. And in the end, the pensions will be funded. So keep blowing smoke, telling lies and spreading propaganda.

          Reply

        • Posted by S Moderation Douglas on November 29, 2015 at 2:14 am

          Boorish, repetitive, libelous, opinionated (of course), exaggerated, illogical, crude, insulting, punctuation error which produces an ambiguity, misspelling (only one, oddly), and, of course, the excessive and inappropriate use of caps lock.

          I’ll get to your second post tomorrow.

          Reply

  4. Posted by Anonymous on November 29, 2015 at 9:48 am

    If the union executives and their legal counsel spent less time counting monetary gains and more time monitoring the pension legislation the members would be protected. Having a long-term strategy to address legislative and managerial concerns is basic to union leadership. Where were they when it became apparent that the existing pension systems would not work? Why weren’t’t the unions using member resources to develop workable solutions, that provide lifetime income through retirement. The failure they attribute solely to past and present administrations is shared. You were entrusted to protect workers pension and even in failure the union executives are well paid. While cleanup this mess, spend some quality time strengthening your own foundation. Right now you all are a part of the collective failure.

    Reply

    • Posted by The Resident Nutcase on November 29, 2015 at 10:35 am

      The local PFRS will and does work. You’re like the others who blindly lump all pensions into one group. Can’t do that. The local plans are sustainable and will work if left alone. Chapter 78 was a hard pill to swallow but it will help these pensions in the long run.
      The local plans are so because of proper funding by both the member and the municipality. Unlike the state plans, who have no such match. If the state did in fact make their proper payments into the local plans instead of robbing the money, those local plans would be even better!!!!

      Reply

      • Posted by Anonymous on November 29, 2015 at 1:02 pm

        The comment is specifically geared to state union executives, the local plans are still connected to the state and the employees are members of the state unions. The criticism remains valid.

        Reply

        • Posted by Anonymous on November 29, 2015 at 1:10 pm

          What?

          Reply

        • Posted by The Resident Nutcase on November 29, 2015 at 1:38 pm

          The employees are not members of the state unions….. Unless they are in the state plans…. Which is the majority.
          But the local plans have nothing to do with the state. Other than being robbed blind by them. The local plans should be given over to the local unions to manage.
          The state plans are in jeapordy due to lack of funding over decades.
          The local plans have never had a pension holiday by neither the employee nor the employer, thus the reason they are well funded and sustainable.
          When people, especially the likes of TL and her ilk, speak of pensions…. They’d be right showing a clear distinction between the two.
          There are local pension funds.
          There are state pension funds.
          Of the two…… The local funds are in wayyyyy better shape.

          Reply

          • Posted by Tough Love on December 1, 2015 at 4:50 pm

            Baloney, NJ’s Local Plans are in TERRIBLE shape …. read my later comment time-stamped …. November 29, 2015 at 11:58 pm

          • Posted by Tough Love on December 1, 2015 at 4:57 pm

            Implying that NJ’s LOCAL Public Sector pension Plans are in “OK” shape by reference to NJ’s STATE Plans (which are in worse shape) is like saying that the world is safer from Nuclear calamity because the USA now has fewer nuclear warheads than it once had ….. noting that we still have enough to destroy the world MANY times over.

      • Posted by S Moderation Douglas on November 29, 2015 at 2:35 pm

        Good point. I wonder how that works out legally and morally. I’ve said before, California is not out of the woods. The “greatest recession” put the system on edge, and another bad one could push CalPERS over the edge.
        (CalPERS is a state agency, but contracts to manage most of the cities, counties, and special districts). Way back in the nineties, Gov. Pete Wilson “borrowed” from CalPERS to balance the budget. Gov. Whitman probably got the idea from him.
        Worked out well for us, though, because that prompted a bill (or constitutional amendment) to give CalPERS plenary authority. The legislature, or city council, etc. CANNOT short the required contribution.

        As a result, CalPERS is probably in about the same condition as the local pensions you discussed. Not great, but salvageable. Which kind of answers the question of the root cause. It’s not the generosity of the pension, obviously. You have the evidence right in your state. Two or more systems with similar employees and similar benefits, but the one that is barely on life support is the one that didn’t keep up the payments. SMH. How hard is that to understand?

        Here’s the legal and moral conundrum: if California stumbles along and manages to pay full obligated pensions for the next fifty or five hundred years, and New Jersey pensioners get a haircut, that’s life. Two sovereign states with their own unique problems and solutions. But in New Jersey, you could literally have a state policeman living next door to a city policeman, and through no fault of his own, the state cop could get a serious haircut while the city cop remains whole. Not “fair”. Or the city cop could be forced to take a similar cut, even though he ….and his city made the required payments all along. Also not fair.

        I hope you guys can work it out, though I really don’t have much faith in your government. (Or mine, really.) Maybe they will both surprise us.

        Reply

      • The state payment of teacher pensions allows for the local payment of higher wages etc. so it’s all one pot. State must pay accrued obligations and make changes going forward – including transferring teacher pensions back to hiring localities.

        Reply

        • Posted by Tough Love on November 30, 2015 at 11:14 am

          The Localities should pay no more than they do now ……… already overcompensating their OTHER workers via their grossly excessive pension/benefits promises (especially the Police).,

          There is no justification ………. for the FREE teacher retiree healthcare (with 25 years of service) and pensions with a value at retirement 3+ times those of Private Sector workers making the SAME pay, with the SAME years of service, and retiring at the SAME age. ….. even IF the State DID have the money to pay for it.

          WITHOUT having the money to do so, the pensions & benefits must be reduced.

          Reply

  5. Posted by S Moderation Douglas on November 29, 2015 at 4:07 pm

    Interesting that you compare New Jersey’s COLA case to OJ.

    I think there is a great likelihood that OJ killed two people. But from what I have seen and read, had I been on the jury, I probably would have voted to acquit. Celebrity had nothing to do with it. The biggest stumbling point was Dr. Lee “There’s Something Wrong Here”.

    The jury was derided because they “didn’t understand” the complexity of DNA. I understood it fairly well: according to Dr. Lee, that damning DNA was very likely planted. There is good reason to believe police tampered with evidence. They may have done the wrong thing for the right reason, but it left enough reasonable doubt that OJ could not have been legally convicted. It’s not justice, but it’s the law.

    “justice is a concept in philosophy; also to some extent in psychology, sociology, economics, etc. Law is what a bunch of mostly long-dead politicians thought would get them reelected. There’s no connection between the two. None.”

    Same thing in the COLA case. What is “just” is not the same thing as what is legal. Ironically, the “justices” are duty bound to make their decision on “what a bunch of mostly long-dead politicians thought would get them reelected”, not on “justice”.

    Reply

  6. Posted by Tough Love on November 29, 2015 at 11:58 pm

    2 thoughts as a catch-up on today’s reading here:

    (1) SMD, in a comment above said ….”As a result, CalPERS is probably in about the same condition as the local pensions you discussed. Not great, but salvageable. Which kind of answers the question of the root cause. It’s not the generosity of the pension, obviously. ”

    SMD is clearly trying to hoodwink the readers again. CalPERS ability to force HUGE payments on it Member Cities, thereby keeping up what should accurately be described as a quite very poor (but not as bad a many others) funding ratio, in no way LEADS TO the conclusion that excessive pension generosity does not exist and is not a BIG problem (as well as the ROOT CAUSE of the pension mess there any everywhere else). THAT follows from the fact that (a) the funding ratios continue to decline even when actual asset returns equal the assumed asset return assumption (b) CA’s Cities continue to cut staff, reduce services, and raise taxes year after year in order to meet the annually-increasing pension funding demands from CalPERS (c) CalPERS has IN PLACE a sliding scale to further increase employer (i.e.,taxpayer) contributions by ANOTHER 50%.

    (2) SMD claims that CalPERS funding ratio, and BH claims that NJ LOCAL Plan funding ratios (both “officially” in the high 70’s) are “sustainable”. Both INTENTIONALLY ignore that those “official” funding ratios are phony, being based on absurdly optimistic assumptions as to future investment & mortality experience, and ignoring all elements of risk (because the consequences of adverse experience are forced upon taxpayers). Simply switching to the NEW GASB basis lowers those high-70s funding ratios to the mid-60s. To put that in perspective, the US gov’t forces corrective action on Private Sector Plans when their funding ratios (NOW calculated on a basis even MORE conservative than the NEW GASB standards applicable to Public Sector Plans) drop below 80%, and forces a Plan freeze once the Plan funding ratio drops below 60%. If CalPERS and NJ’s Local Plans calculated their funding ratios using the SAME assumptions & methodology that Private Sector Plans MUST use, there is a good chance that their funding ratios would indeed drop below that 60% level.

    To conclude that they are in anything but horrible shape is incorrect and self-serving.
    And neither should be considered “sustainable” without further unjust demands for more taxpayer money to continue to fund promises many multiples greater than what Private Sector Taxpayers get in retirement.

    Reply

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