July 29, 2013 10:42 AM UTC

Save Pera Cola Friends . . . Tell Your Story! How Did it All Go Down? We Want to Know the Truth!

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• by: PolDancer

“I have no doubt that the nation has suffered more from undue secrecy than from undue disclosure.  The government takes good care of itself.” ― Daniel Schorr

In 2010, the Colorado Legislature passed a bill that, for the most part, ignored prospective reform of the Colorado PERA pension system, and generated 90 percent of the cost savings in the pension reform bill (SB10-001) by retroactively taking up to 42 percent of contracted PERA COLA benefits.  (That is, the inflation protection due under Colorado PERA pension contracts.)

Were you involved with the development of SB10-001 in 2009/2010?  Tens of thousands of Colorado PERA retirees want to know the whole story.  They deserve to have the whole truth!  As it stands, they only have a murky sketch of what went down in 2009/2010.  PERA retirees own a good part of the Colorado PERA trust funds, and they paid into the PERA trust funds for most of their lives.  They should have complete information about this bill (SB10-001) that, if unchecked, will inexorably lower the quality of their lives in order to keep Colorado taxes low. Let's have complete transparency in Colorado government.

(I, for one, would find the full back-story on the 2009/2010 PERA COLA-taking fascinating.)

During debate on SB10-001, on the floor of the Colorado Senate, we heard that "this was a deal cut before this body met."  So, how was the SB10-001 "deal" cut?

Who gets to claim credit for coming up with the original proposal to take PERA COLA benefits?  Who brought the idea to the PERA Board?  How did the board react initially?  Who was not "on-board"?  How did the PERA Board address the obvious constitutional questions?  Were objections raised by PERA's legal staff?  How difficult was it achieving board unanimity?  What persuaded the trustees to run with the COLA-taking plan?  What objections were raised by board members?  Did the idea of a prospective reduction of the PERA pension multiplier ever come up?  If so, why was this idea dismissed?  Did the union's representatives resist going in that direction?

Why did the PERA Board opt against limiting PERA reform to the creation of new tiers as was their historical practice?  What options for the creation of new tiers were priced out by actuaries?

What were the early conversations about the COLA-taking idea?  Why were so many prospective public pension reform options excluded?  (It was pointed out at PERA's Denver "Listening Tour" meeting that only a few reform options on the table impacted those who actually owe the PERA debt, i.e., PERA-affiliated employers.)

Who dissuaded Legislative Leadership from submitting an interrogatory (through Ritter) to the Colorado Supreme Court on the constitutionality of the developing SB10-001 proposal?  We know that the PERA Board wanted to send this interrogatory to the Supreme Court, why were PERA's lobbyists not able to make this happen?  Did Legislative Leadership shut it down?

How was Governor Ritter, an attorney himself, persuaded to make the COLA-taking attempt?  What did he have to say about the adverse Colorado public pension case law?

How was the decision made to hire the Dubofsky law firm to create the legal opinion rationalizing the COLA taking?  Who had the idea to hire Dubofsky?  Was her firm hired for legal expertise in this area of the law or for other reasons?

How did Colorado PERA's lobbyists (including any of Senator Shaffer's "bad lobbyists") go about persuading the members to support SB10-001?

We know that certain lobbyists were assigned to target various caucuses at the Legislature, how did lobbying strategies differ for each caucus?

Former Colorado legislators involved in SB10-001's development, how were you lobbied?  What was your role?  Why were you convinced or unconvinced that SB10-001 was a real solution?

When did Colorado PERA officials first anticipate that they would have to fight a court battle to take the COLA benefit?  Why was the decision made to proceed considering the significant legal battle ahead?

Who had the idea to put the "request" for the PERA Board to develop pension reform recommendations into SB09-282 at the end of the 2009 session?  Did the PERA Board really "ask itself" to make these recommendations by having its lobbyists place that language into SB09-282?  Who filed the amendment request with legislative staff?  A PERA lobbyist?  Senator Penry?  Did a lobbyist take this idea to Senator Penry?

Did PERA's lobbyists coach Senator Penry on strategy to enact the SB10-001?  Did they warn him against making public statements that the COLA was contractual, (happened.)  Was PERA's legal strategy to take the COLA unsettled at that point in time?  Why did PERA go forward with the COLA-taking attempt if the legal strategy was unsettled?  PERA officials had the Dubofsky opinion in hand, was there a debate over attempting to use "actuarial necessity," or Dewitt?  Why did we hear Senator Penry talking about "actuarial necessity" rather than Dewitt at the beginning of the 2010 session?

Why did PERA submit a written document to the JBC stating that the COLA was a contractual obligation prior to the attempt to take it?

Which state legislators were unhappy about having PERA run the COLA-taking show?  Who originated the idea to have PERA pension reform recommendations developed outside of the Colorado legislative process?  In most states, the members of the state legislature are educated about public pension administration and contractual obligations, then the state legislators actually make the policy decisions.  In most states, it is the elected state legislators who debate and determine public pension policy.  Why did Legislative Leadership agree to have this entire process moved outside of the Colorado legislative process?  What advantages did moving the pension reform debate outside of a normal public policy-making  process offer the various interested parties?

What is special about this policy area, Colorado public pension policy, that it should be developed outside of the legislative process?  Too complex for state legislators to grasp?  How do other state legislatures manage to debate public pension reform options in open legislative hearings?  How many arrange to have a "deal cut" with union lobbyists and then ignore all other reform options?

How much of the ultimate 2010 PERA reform legislation was actually finalized by the Colorado PERA Board of Trustees in Executive Session?

Former Colorado PERA staffers, remember, you were employees of a "transparent" organization.  Be transparent, what's the real story?  What "deals" were cut?  Who were the players in that "smoke-free" room?

What instructions were provided to Colorado PERA's actuaries during consideration of pension reform alternatives in 2009/2010?  Why do PERA's actuaries feel compelled to continue to point out in PERA CAFRs that the 100 percent funded ratio in SB10-001 is a "MUCH STRONGER POSITION THAN REQUIRED TO MEET CURRENT GASB STANDARDS"?  Don't they know that this harms the case for the bill?  Did they suggest an 80 percent threshold as a more "reasonable" breach of PERA COLA contractual obligations?  How was the decision reached to "go big" and seek a 100 percent funding ratio threshold in SB10-001?

Why has the PERA Board had a practice of limiting the PERA trust fund's funding ratio to 90 percent in the past?  Was this official board policy?  When was this policy scrapped?  Did this board policy come up during the discussion of placing a 100 percent funded ratio threshold into the PERA statutory contract?
Why did Meredith begin job hunting in the months after SB10-001 was enacted?  Did he just need a change of scenery?  Was he fully on-board with the COLA-taking plan?

In light of his past comments supporting PERA COLA contractual rights, how was Greg Smith brought on board?

What were the roles of Colorado's public sector unions and the Colorado Coalition for Retirement Security in developing the COLA-taking plan?

Why were PERA's lobbyists unable to kill SB12-149 at the 2012 legislative session?  Why were PERA's lobbyists or staff unwilling to put a pension funding threshold into SB12-149?  How was Senator Steadman able to rationalize sponsoring a bill that honored the vested contracts of Colorado county government retirees, SB12-149, after having supported SB10-001 breaking Colorado PERA retiree pension contracts?

Who has lobbied the Legislature to finish paying off $700 million in local government legacy pension debt (Old Hire Fire and Police pensions) before the SB10-001 case is completed?  Local government lobbyists perhaps?

During the meetings at which SB12-149 was developed did Cindy Birley make the case that prospective reform of Colorado pensions under Colorado case law was much more likely to pass court muster?  What compromises were PERA's lawyers/lobbyists able to achieve in the developing SB12-149?

I think it was critical that Colorado PERA retirees decided to defend their PERA COLA benefits in court in 2010.  I see that lawyers for the City of San Jose are arguing in court that, since city employees have agreed to increases in their pension contribution rates in the past, further increases in those contributions are now permissible.  The lawyers make the argument that contributions can be increased, since the employees "cannot waive a legally protected vested right."  My take-away is that public employees who do not defend their contractual pension rights in court, public employees who compromise, will eventually see lawyers for public pension plan sponsors arguing in court that those rights are not vested.  What is not nailed down will be taken.

Words of wisdom: “Sunlight Is the Best Disinfectant,” U.S. Supreme Court Justice Louis Brandeis.

Let the world know what really happened with the 2010 Colorado PERA COLA-taking.  Post the real story on the Save Pera Cola Facebook page, or post it anonymously on ColoradoPols if that is your preference, or send it anonymously to saveperacola.com.  In any event, let's have the whole unadulterated truth!  We only live once, let's seek truth while we have the chance!

Do your part to support contractual public pension rights in Colorado, contribute at saveperacola.com.  Friend Save Pera Cola on Facebook!

http://saveperacola.com/