In Colorado, the reward for a lifetime of public sector service is a retirement spent in litigation to force your former employer to meet its contractual obligations, and in countering that employer's deception. Welcome to Corruptible Colorado.
Although residents of the State of Tennessee lack the wealth and high incomes of Colorado residents, they have confidence that their state government will act responsibly and honor its contracted debts.
The table at the link below reveals that the State of Colorado had the 13th highest per capita income in the nation in 2012 (I have seen reports of Colorado ranking tenth in the nation in per capita income) while the State of Tennessee ranks 34th in the nation in per capita income.
Thus, we have this situation in which one of the poorer states in the nation is demonstrating for one of the richer states in the nation how to pay state bills, honor state debts, and responsibly manage a public pension system.
The Tennessee Legislature has recently enacted a bill that requires governmental sponsors of public pension plans in the state to pay their pension bills on time. As we have seen, the Colorado Legislature has failed to pay its full public pension bills ("actuarially required contributions," ARC) for the last twelve years and has accordingly racked up an impressive public debt. Under the terms of its new legislation, the Tennessee Legislature will now insist on payment of public pension ARCs by pension plan sponsors in Tennessee, while the Colorado Legislature continues in its attempt to break Colorado PERA public pension contracts and "clawback" compensation that has already been earned by Colorado PERA pensioners.
It is apparent that something is rotten in the State of Colorado, and that a backroom "deal" was "cut" by Colorado politicians, Colorado PERA officials, and lobbyists in 2009 to pay off state debts with money taken from elderly pensioners.
In 2009, a group of Colorado PERA officials, some Colorado politicians, special interest groups acting in their own financial interest, and lobbyists all sat in a backroom and plotted to break Colorado PERA pension contracts through deception. They accomplished this by taking the pension reform debate outside of the normal, open legislative process (having their lobbyists place this language into a bill at the end of the 2009 session) by running a statewide campaign to break Colorado PERA pension contracts (that was intended to demonstrate the support of Colorado PERA pensioners for the breach of their own pension contracts) and by assembling a team of 27 lobbyists to push the contract breach proposal on sitting state legislators. Like it or not Coloradans, this is your state government in action.
The bill breaking Colorado PERA pensioner contracts was signed into law by Governor Ritter in 2010. Naturally, Colorado PERA retirees sued to prevent the use of their property to keep taxes low in Colorado, and to free up public funds for politician's favorite programs (including annual gifts of billions of dollars in corporate welfare.)
Since current Colorado PERA pension administrators are complicit in underfunding the PERA pension plan, mismanagement of the pension plan, and in the attempted breach of Colorado PERA plan sponsors' contractual obligations, the burden of defending contractual public pension rights in Colorado falls on the shoulders of Colorado PERA pensioners.
Now that the Colorado PERA retiree lawsuit, Justus v. State, has arrived at the Colorado Supreme Court, the Colorado Legislature and its pension administration arm, Colorado PERA ask the court to bless their breach of pension contracts. Further, the State and PERA ask that the Colorado Supreme Court go so far as to deny Colorado PERA retirees their right to a jury trial, since a trial would expose Colorado PERA's legacy of pension mismanagement.
In the past, Colorado PERA pension administrators have made numerous statements (and have written and cited legal briefs supporting Colorado public pension contracts.) Prior to agreeing to the "deal" to break PERA pension contracts, PERA officials admitted to pension mismanagement:
March 11, 2009:
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.”
Even after agreeing to the deal to attempt the PERA COLA contract breach, Colorado PERA officials admitted that the PERA COLA was their contractual obligation:
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.”
Over the course of the last twelve years, Colorado PERA pension administrators like former Executive Director Meredith Williams and current Executive Director Greg Smith could have acted responsibly by regularly and emphatically insisting that the Colorado Legislature pay its public pension bills to meet state contractual obligations. Instead, Greg Smith and Meredith Williams held their tongues. They allowed members of the Colorado Legislature to labor under the delusion that simply establishing insufficient Colorado PERA contribution rates in statute was the equivalent of actually meeting the pension system's obligations under existing PERA pension contracts.
Greg Smith and Meredith Williams sat back and said nothing as Colorado state legislators systematically underfunded the PERA pension system, driving the pension system's funding ratio down from 105 percent in 2001 to 69 percent in 2009.
Only on rare occasions have we heard Greg Smith or Meredith Williams mention the public pension "ARC" in public, Meredith Williams' comments on February 23, 2012 to the Colorado House Finance Committee (relating to the Legislature's historical underfunding of its PERA pension obligations, i.e., the failure of the Legislature to ensure payment of the ARC through appropriate statutory contribution rates, or supplemental appropriations):
"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."
In 2009, in an unusual off-script moment, Colorado PERA's former General Counsel (and current Executive Director) Greg Smith condemned the Colorado General Assembly's failure to meet PERA pension system ARC obligations. Greg Smith's moment of candor occurred prior to legislative enactment of the 2010 PERA COLA contract breach in SB10-001. On August 11, 2009, at the Denver meeting of the Colorado PERA “Listening Tour” Colorado PERA’s General Counsel Greg Smith blamed the Colorado General Assembly for the decline PERA’s actuarial funded ratio:
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.”
Having failed to lead, having failed to take responsibility, having participated in the mismanagement of the Colorado PERA pension system, these Colorado PERA officials now seek to cover their tracks through breach of public pension contracts. In 2010, rather than acting as professional public pension administrators, they endorsed a scheme advocated by self-interested groups and lobbyists to rectify a tradition of pension mismanagement by the Colorado Legislature and the Colorado PERA Board of Trustees. They suggested that other U.S. pension systems follow their example of contract breach.
Having shirked their duty, Greg Smith and Meredith Williams decided to compound their errors by agreeing to go along with this scheme to take money (fully-vested PERA pension benefits) from elderly Colorado pensioners. Going forward, Colorado residents, voters, judges, and elected officials should know the character of the state we live in. Colorado state employees will shirk responsibility for their past mismanagement, they will misrepresent, and they will hire attorneys to attempt to deceive courts in legal briefs. They will deceive in order to maintain Colorado's political status quo through which billions of dollars in state and local government resources are sent to corporations via tax exemptions and subsidies.
Shortly after SB10-001 (the bill breaking Colorado PERA pension contracts) was signed into law by Governor Ritter, Meredith Williams began a search for a new job. He failed to land a position for which he was a finalist in Texas, and ultimately escaped the mess he helped create in Colorado when he found work in California. Apparently, he wanted no part of the aftermath of this Colorado PERA self-inflicted legal fiasco.
The Tennessee Legislation, (from chattanoogan.com):
"Governor Bill Haslam has signed into law a bill that officials said is designed to assure Tennessee local government entities fully pay the annual payment to their public employee pension plans in order to protect the financial stability of local governments and to protect workers’ pensions."
"The legislation, called the first of its kind in the nation, was sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Rep. Steve McManus (R-Memphis) and written by state Treasurer David Lillard, Jr."
"The new law, called the Public Employee Defined Benefit Financial Security Act of 2014, will require all local government entities that operate pension plans in Tennessee to pay the payments recommended by their actuaries each year. These payments, formerly known as the Annual Required Contribution or ARC, are the amount of money actuaries determine is needed to annually fund in a financially-sound manner the benefits provided by public pension plans."
"Under the new law, local government entities that have not been paying 100 percent of their ARC will have six years to gradually ramp up their yearly payments. If local government entities fail to pay 100 percent of the ARC after that phase-in period, the state will have the authority to withhold money it provides to those governments and use it to make the required payments."
"Previously-existing law had long required that the approximately 500 local government entities in the Tennessee Consolidated Retirement System, or TCRS, pay 100 percent of the yearly ARC. Local government entities in TCRS have also long been subject to possible state intercept of funds if they failed to pay 100 percent on the ARC. As a result, TCRS is ranked by various organizations as having one of the best funded pension plans in the nation. This legislation simply applies these best practices to local government pension plans that are not already in TCRS."
“'Each year that a local government doesn’t fully fund its ARC, it creates a liability that will eventually have to be paid,' said Representative McManus, the bill’s House sponsor. 'Those liabilities add up over time. And when the costs of providing those pensions come due, it can create a tremendous burden for future generations of taxpayers if the pension plans have been underfunded for years.'”
“'A local government that fails to pay 100 percent of its ARC each year is like a runner with a shorter stride than the people he is racing against,' Treasurer Lillard said. 'With each stride, the runner falls farther and farther behind the competition. For local governments not funding annual pension payments, it is the taxpayers who ultimately lose.'”
“'This legislation is something all states should consider,' said Charles E.F. Millard, managing director, head of pension relations for Citigroup and a former director of the United States Pension Guaranty Corporation. 'The health of public pensions depends upon their investment returns and plan structures, of course. But the key determinant of the health of our public plans is whether the public employer makes its full annual contribution. If everyone did this, public pensions would be far healthier than they are today.”
“'From a credit standpoint, we have always viewed full funding of the ARC as a positive and important element of a government’s liability management,' said John Sugden, a senior director at Standard & Poor’s Ratings Services."
John Sugden quoted in the Gazette Telegraph:
"You're capturing at a potentially low point. We're going to see the market strengthen. We've seen these numbers fluctuate over time. Back in 1975, it was 51 percent, and with the market boom in the '90s, it was 100 percent or close to that."
Back to Chattanoogan.com:
“'Tennessee has a well-deserved reputation as one of the best financially managed states in the nation,' Treasurer Lillard said. 'This landmark legislation continues that proud tradition by applying a common sense approach to local government pension funding.'”
"The Public Employee Defined Benefit Financial Security Act of 2014 is Public Chapter 990, which may be viewed at
A few excerpts from the Tennessee legislation:
"For the purposes of this section, 'Actuarially determined contribution (ADC), formerly known as the 'actuarially required contribution' means the actuarially determined annual required contribution that incorporates both the normal cost of benefits and the amortization of the pension plan's unfunded accrued liability."
"Each political subdivision shall develop a funding policy for financing the obligations under the pension plan. Such funding policy shall be legally adopted and approved through a resolution by the political subdivision's chief legislative body or governing body."
"For political subdivision employees hired on or after the effective date of this act, the political subdivision may freeze, suspend or modify benefits, employee contributions, plan terms and design on a prospective basis. The provision in the foregoing sentence does not affect any judicial precedents or statutory law as they apply to employees who were employed prior to the effective date of this act."
(My comment: Note that the Tennessee Legislature intends to permit PROSPECTIVE changes to the accrual of public pension benefits in their state. Oddly, after having adopted retrospective legislation, taking accrued benefits from retirees in the Colorado PERA pension system in 2010, two years later the Colorado Legislature adopted SB12-149 honoring the accrued pension benefits of retirees in Colorado county government pension systems. So, if you happen to be a retiree in certain county government pensions in Colorado, your pension contract is honored. On the other hand, if you are a Colorado PERA retiree in Colorado, your pension contract has been abrogated. A constitutional double standard on public pension contracts is now enshrined in Colorado law.)
Back to the Tennessee legislation:
"The accrued benefits earned prior to any adjustment pursuant to subsection (a)(1) above shall remain an enforceable right and may not be reduced without the written consent of the political subdivision employee . . ."
"Keith Brainard, director of research in Georgetown, Texas, at the National Association of State Retirement Administrators, said he hadn’t heard of a measure like the Tennessee proposal that includes a provision for the state to intercept tax dollars to support pension funds outside of its control."
"The bill was championed by Treasurer David Lillard, a former county commissioner who said he understands the pressure on local governments to use pension contributions to patch budget holes."
"The hallmark of just about every distressed pension plan in the country is that they at one time or another reduced their annual payments,' Lillard said."
"The combined funding ratio for those plans was 65 percent, where an 80 percent level is considered optimal for funds to be able to pay future claims. In comparison, the 18 systems that paid their full amount were 80 percent funded, and the three state plans were 89 percent to 96 percent funded."
"'We always believe in local control in our cities,' said (Tennessee Municipal League) Executive Director Margaret Mahery. 'But I guess, just like all of us, sometimes we maybe needed a little push.'”
(My comment: Note that officials of the Colorado Municipal League [CML] did nothing to prevent the Colorado Legislature from abrogating the pension contracts to which CML member Colorado municipalities were parties. Colorado municipalities believed that they had the opportunity to erase billions of dollars of their debts in 2010.)
An on-line comment posted on the Bloomberg article:
"A pension plan is not largesse, but deferred compensation, thus the failure to pay an agreed pension, where the employee has contributed their agreed share, is constructively a theft of wages. Operationally, failure to make scheduled contributions to a pension plan is extorting a zero interest rate loan from the plan. Almost all of the loudly trumpeted municipal/state pension shortfalls are due to the failure of the trustee to compel the employer to contribute their agreed funding."
(My comment: Colorado PERA Board trustees and PERA administrators your culpability in creating this legal fiasco is widely recognized.)
"Norris’ bill gives governments like Memphis that haven’t been paying their ARC five years to steadily increase their funding until they do so. Because the five-year clock starts after June 30, 2015, they would actually have six years."
"Lillard, the treasurer, said he and his staff drafted the bill that Norris is introducing. Last month the treasurer’s office produced a report that reviewed 31 public pension plans statewide that are not part of the Tennessee Consolidated Retirement System. Of those 31, only 13 paid less than their ARC in 2012."
(My comment: Colorado Treasurer Walker Stapleton seems happy to go along with the Colorado "COLA-theft" plan [SB10-001] to address Colorado PERA unfunded pension liabilities.)
"Norris said he would ask a joint House and Senate group called the Council on Pensions and Insurance to make a recommendation on his proposed bill on Feb. 10."
(My comment: Note again, the Tennessee Legislature debated public pension policy out in the sunlight, while Colorado PERA's lobbyists pushed this 2009/2010 Colorado PERA pension policy "debate" into the shadows.)
Excerpts from the Tennessee State Treasurer's pension report, "Treasury Department State of Tennessee Report to the Legislative Council on Pensions and Insurance," January 27, 2014:
"The Governmental Accounting Standards Board in 2012 acted to abolish the concept of the ARC, and effective for fiscal years beginning after June 15,2014, no longer requires governmental employers to report an actuarially determined annual required contribution in their financial reports. The new GASB standards will no longer set the parameters within which an employer's ARC must be calculated. The Government Finance Officers Association (GFOA) and other professional finance organizations have adopted positions calling for governments to adopt a funding policy based on an actuarially determined annual funding amount."
"Thus, the TCRS and also each Tennessee local government with a defined benefit pension plan should adopt a written pension funding policy based on an actuarially determined annual contribution."
"The GASB also required inclusion of a liability entry in financial statements for the net pension liability. For governments who underfund the annual contribution, a blended discount rate must be used to determine net pension liability, resulting in a significantly higher liability entry and pension expense."
"Accordingly, Senate Bill 2079 and House Bill 2037 have been introduced and will be heard by the Legislative Council on Pensions and Insurance on Monday, February 3, 2014, at 1:00 PM CST in Legislative Plaza Hearing Room LP 29, when a presentation will be made by the Tennessee Treasury Department. These proceedings will be webcast and may be viewed at
http://wapp.capitol.tn.gov/apps/livevideo/. and will be archived for subsequent viewing."
"The chief legislative body of a local government or other participating local government entity must pass a resolution to participate in TCRS. The resolution provides the terms of participation (prior service, COLA, formula, etc.). The resolution also provides that the local government is financially responsible for the pension cost, including administrative cost and investment cost, associated with their employees and retirees."
"Under the law governing the participation of local governments in TCRS, if a local government does not pay its annual ARC payment, the Commissioner of Finance and Administration has the right to intercept any state-shared taxes that are otherwise apportioned to the local government. These intercepted funds are utilized to pay the required ARC payment."
"Current Tennessee law requires annual payment of the ARC for state employees, inclusion in the budget by the Department of Education and appropriation by the General Assembly of the state portion of funding for the Basic Education Program allotted for contributions to the retirement system for the benefit of teachers."
"GASB statements 25 and 27 formerly provided a direct linkage between 'pension funding' and 'pension expense' within certain parameters. These two statements provided the foundation for the concept of the Annual Required Contribution (ARC), also often referred to as actuarially required contributions. Six different actuarial methodologies were permitted which an employer may utilize in calculating the ARC."
"In June 2012, GASB statements 67 (pension plan financial statement) and 68 (employer financial statement) were finalized that superseded statements 25 and 27 as they relate to pensions that are provided through pension plans administered as trusts or equivalent arrangements."
"Pension plans must begin reporting under the new standards for fiscal years beginning after June 15, 2013. For all government pension plans, the fiscal year 2013-14 financial statements must be produced in accordance with the new GASB 67 statement. Employers must begin reporting information on their financial statements under the new standards for fiscal years beginning after June 15, 2014."
"Now, there will be a separation of 'accounting for pension expense' from 'pension funding.' There will no longer be an ARC defined by GASB. Pension plans that have been using the ARC under parameters prescribed by GASB as their funding policy will now need to establish a pension funding policy. The result of these changes in accounting standards means the amount recorded as pension expense for a fiscal year will be different than how a pension plan is funded. There will probably be significant volatility from year to year in the amount recorded as pension expense under the new standards."
"The plan must calculate 'Net Pension Liability' (i.e., which strongly correlates to unfunded pension liabilities) based on market value of assets. Previously, it was permitted to use an asset smoothing method."
"Net Pension Liability will be recorded as a long term debt (liability) on the employer's financial statement. Previously, these liabilities were not an entry on the balance sheet but were depicted in the notes to the financial statement."
"In 2013 Fitch Ratings issued a report comparing the debt obligations, including pension debt, among the 50 states. Tennessee has the high distinction of having the lowest overall state general obligation debt and unfunded state pension liabilities as a percentage of personal income."
"Standard and Poor's issued a report in 2013 titled A Bumpy Road Lies Ahead for U.S. Public Pension Funded Levels. This report reviews the funding levels of pensions for the 50 states."
"Failure to pay annually when due the full actuarially required contribution is in effect underfunding the pension plan. The amount that is not funded increases the unfunded accrued liabilities of the plan. Further, the pension plan will not have the under-funded amount available to invest, thereby resulting in lost earnings opportunity."
"The funding for a pension plan assumes that 100% of the ARC will be paid annually, and further assumes that those contributions will be invested to earn at least the assumed rate of return for the pension plan. Thus, the failure to pay 100% of the ARC can quickly lead to a serious underfunding of the pension plan. Chronic underfunding of the ARC will eventually make the pension plan financially unstable. Nationwide, multiple severely underfunded pension plans that are now financially unstable are examples of the failure to pay annual funding requirements."
"Under GASB Statements 67 and 68, the governmental entity is required to include on its balance sheet a liability entry that reflects the net pension liability of the pension plan. The net pension liability correlates strongly to the unfunded accrued liabilities of the plan. When the ARC is funded at less than 100%, the unfunded portion will increase the unfunded accrued liabilities and also the net pension liabilities of the pension plan. This underfunding along with the requirement that a lower blended discount rate be used by pension plans that fail to fully fund the annual contribution will substantially increase the liability entry for net pension liability on the balance sheet of the governmental entity."
"Delaying pension funding by underfunding the ARC will likely be very expensive to the local government entity. It costs an additional $435,000 to delay a one million dollar pension payment for five years assuming an earnings rate of 7.5%. This is a 43.6% increase in the amount to be paid. The pension cost more than doubles by delaying a payment by 10 years. A $1 million pension cost becomes $2.06 million if delayed 10 years. See Attachment 2 that illustrates the cost of delaying employer pension contributions."
"GASB noted in its release accompanying Statement No. 68 that pension contribution issues are public policy matters. Indeed, leading finance professional organizations, including the Government Finance Officers Association have adopted positions calling for governments to adopt a funding policy based on an actuarially determined annual funding amount."
(My comment: The Tennessee Treasurer's Report [Attachment 2] reveals that the cost of delaying public pension plan actuarially required contributions [with an assumed 7.5 percent return assumption] for a 12-year period [the Colorado Legislature began underfunding the PERA pension system 12 years ago] is a premium of 138.2 percent of the skipped pension contribution." The Colorado Legislature has racked up billions of dollars in debt due to this 138.2 percent cost of PERA pension contribution deferment. The Colorado Legislature and Colorado PERA officials now seek to push this debt onto PERA pensioner's shoulders.)
Support public pension contractual rights and the rule of law in Colorado at saveperacola.com.