Pressing Questions in the Colorado PERA Public Pension Lawsuit, Justus v. State.

Colorado law: The Colorado PERA base benefit "shall" be paid, the Colorado PERA COLA benefit "shall" be paid.  The challenge for Colorado PERA's lawyers?  Make that plain statutory language appear to be ambiguous.  If Colorado PERA's lawyers are successful, the State of Colorado can pay off state debts using money forcibly taken from elderly Colorado pensioners.  Coloradans, this is your state government in action.  (Some of your state employees are thick into this scheme.)

If the State of Colorado Can Successfully "Claw Back" PERA Pension COLA Benefits, Does the Colorado PERA Pension Remain a Qualified Plan Under Federal Law?

Have Colorado PERA pension administrators reported to federal IRS regulators that the Colorado PERA pension COLA benefit is an "automatic" pension COLA benefit?  Colorado PERA, as a federally qualified pension plan, must have "definitely determinable" benefits under federal law.  If Colorado PERA administrators have reported an "automatic" PERA COLA benefit to federal regulators, how can they now claim that the PERA COLA is an "ad hoc" pension COLA that they can legally diminish?  Colorado PERA members and retirees want the truth.

Note that the U.S. military pension system currently has a ZERO percent funding ratio.  Military pension benefits in the United States are paid from current revenues.  Why do we see no attempts to break military pension contracts?  If we believe the arguments of Colorado PERA officials, military pensions should now be in a state of complete chaos and collapse.  Recall that Colorado PERA officials sought to break PERA pension contracts when the actuarial funding ratio of the pension system was at 69 percent.

Colorado law is clear that the Colorado PERA pension COLA benefit constitutes state debt.  Colorado PERA's lawyers, in past legislative testimony, have confirmed the fact.  But, for the moment let's entertain the possibility that the statutes creating Colorado PERA pension benefits are, as Colorado PERA's lawyers contrive, "ambiguous."

In that event, Colorado PERA's campaign to take earned, contracted, accrued pension benefits from old people must overcome yet another hurdle, namely the Colorado Supreme Court's "cardinal principle" that any ambiguities in Colorado public pension statutes are to be construed in favor of the employee.

This long-standing "cardinal principle" of the Colorado Supreme Court makes sense.  After all, Colorado PERA pensioners have relied on their PERA contracts and planned their lives around those contracts.  They have given decades of labor and pension contributions in exchange for their contracted retirement annuities.  Colorado law should (rightly) give the benefit of any doubt to workers who have given their lives in public service.  Has the Colorado Supreme Court abandoned this "cardinal principle"?  If so, when did this happen?

“As was noted in Endsley v. Public Employees Retirement Association . . . (1974) ambiguities appearing in statutes regulating pension and retirement funds are construed favorably toward the employee.”  Ten years later, this Colorado Supreme Court determination was cited by then-Colorado Attorney General Duane Woodard in an Opinion of the Attorney General: “In resolving this question, I am guided by the CARDINAL PRINCIPLE (my emphasis) that ambiguities in statutes regulating pension and retirement funds are to be construed in favor of the employee. Link:
http://www.coloradoattorneygeneral.gov/ag_opinions/1984/no_84_14_ag_alpha_no_pa_pe_aganf_august_14_1984.)

My hope is that, in the coming decades, Colorado elected officials will honor state debts, and responsibly manage public pensions in our state.  Toward that end, I believe that Colorado courts should require that public pension management decisions by pension plan sponsors and elected officials in Colorado conform with the contractual obligations of those plan sponsors.  A relaxation of constitutional strictures on Colorado state legislators will not contribute to responsible management of the Colorado PERA pension system in the future.  In this article, I present a number of questions relating to the Colorado public pension lawsuit, Justus v. State, that I believe, if answered, will contribute to the responsible, professional management of Colorado public pension systems.

I encourage Colorado public pension trustees, active and retired public pension members, pension plan sponsors, pension administrators, Colorado elected officials, public pension plan attorneys, and Colorado courts to consider these questions. 

(Readers unfamiliar with the legal issues addressed in the public pension case, Justus v. State, should first visit the website, saveperacola.com for background, and also read the recent article at this link:
http://coloradopols.com/diary/59115/colorado-pera-pensioners-expose-deception-by-pera-lawyers-at-the-colorado-supreme-court)

Last week, Colorado PERA's lawyers, in oral arguments before the Colorado Supreme Court, tried to persuade the Court that Colorado law is ambiguous relating to the state's contractual obligation to pay the PERA pension COLA benefit.  Let's take a closer look at their argument.  First, note that Part 6 of the Colorado PERA statutes creates the PERA "base benefit" contract (Defendants in the case agree that this Part creates a contractual obligation.)  Part 8 of the PERA statutes sets forth options for payment of the contracted PERA annuity.  Part 10 of the PERA statutes creates the PERA (annual benefit increase) COLA contract.

During the recent oral arguments in this case, Justus v. State, Colorado PERA's lawyers argued that language in Part 8 of the PERA statutes supports Part 6, but does not support Part 10.  Their argument seems quite arbitrary and contrived to me.  All of these Parts fall under the "PERA Article," Article 51 of the Colorado statutes.

Are PERA's lawyers surprised that Part 8 which provides options for payment of the contracted life-time PERA annuity includes the language "payable for life"?  Why is this surprising?  The PERA annuity contract is a life-time annuity.

Why has the testimony of Colorado PERA's lawyers to the Colorado Legislature's Joint Budget Committee (JBC) confirming the PERA COLA benefit as a PERA contractual obligation that cannot be diminished not come up in this case?  This testimony would surely be recognized if PERA pensioners were granted the right to make their case at trial.  Thus, PERA's lawyers argue in their legal briefs that PERA retirees (the plaintiffs) should be denied their right to a trial.

In effect, Colorado PERA officials argue that the Colorado Constitution's Contract Clause should be violated because Colorado politicians want to break it.  Plaintiffs should be denied a trial because a trial would hamper the ability of Colorado politicians to use retiree assets to pay state debts and state and local government labor costs.  I ask, why should Colorado PERA retirees not have an opportunity to plead their case before a jury?

The testimony by Colorado PERA's lawyers to the JBC makes it clear that the PERA COLA is an "automatic" public pension COLA benefit.  When PERA's lawyers gave this testimony in 2009, they did NOT testify to the JBC that the PERA COLA is a contractual obligation that can be reduced to ZERO as PERA's lawyers contend, they testified that the PERA COLA "cannot be decreased."

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.”

http://www.kentlambert.com/Files/PERA_JBC_Hearing_Responses-12-16-2009_Final.pdf

Again, Part 8 of the Colorado PERA statutes sets forth options for payment of the contracted annuity.  At retirement, under Part 8, a PERA member who has met all of the statutory requirements to receive the PERA pension may choose to have that pension paid for just her life, or she may choose to receive a smaller pension payment for herself and a beneficiary.  Is it the expectation of PERA's lawyers that this Part 8 should have been drafted in a way such that the options for payment of the life-time PERA annuity income stream makes no mention of payment of that income stream for the life-time of the PERA retiree?

In my view, Colorado PERA's lawyers will go to great lengths and employ every imaginable contrivance that might help Colorado PERA-affiliated employers escape their legal debts.  In my view, Colorado PERA officials and Colorado politicians will stop at nothing to deceive the courts and the public, to force Colorado PERA retirees to relinquish their contractual rights and pay off the legal debts of Colorado PERA employers.  In effect, Colorado politicians seek to force elderly pensioners to pay labor costs for the State of Colorado and Colorado local governments.  In my view, Colorado state employees at the state agency, Colorado PERA, and Colorado politicians are engaging in immoral and unconstitutional acts.

Part 8 of the Colorado PERA statutes necessarily includes the language "payable for life," because it sets forth PERA annuity payment options that are "payable for life," for either the retiree, or a reduced amount for the retiree and one-half for a beneficiary at retiree death, or a further reduced amount for the retiree and an equal annuity income stream at the retiree's death.

The Colorado PERA COLA benefit is simply a contracted annual increase for which retirees have provided consideration (years of labor and contributions.)  If the PERA COLA is not supported by consideration provided by Colorado PERA members and retirees, then how is the COLA benefit supported?  By PERA-affiliated employers exclusively?  If this is true, why do the PERA statutes not set forth a mechanism for PERA employers' exclusive support of the PERA COLA benefit?

I ask, if Colorado PERA retirees have supported their PERA COLA benefit with consideration, and fulfilled their obligations under their contracts, why should they not receive their PERA COLA benefit?  Just to free up more Colorado public resources to add to the billions of dollars that Colorado politicians already give to corporations?  (For more on that, see Colorado's "tax expenditure" reports.) 

Under Colorado statutes, the PERA COLA benefit "shall" be paid, and the PERA base benefit "shall" be paid.  But, apart from the statutes, I believe that the PERA COLA benefit is a contractual obligation under an "implied contract."  All of the conditions of an implied contract have been met.  If I am correct, what relevance does the question of whether the Part 6 PERA base benefit contract language "SHALL" is supported by Part 8 language and whether this Part 8 language also supports the Part 10 PERA COLA contract?  Under an implied pension contract the exchange transaction has been completed, consideration has been exchanged for a benefit, deferred compensation.

More Questions Regarding the Colorado State Government Campaign to Escape its Legal Debts.

I ask, why did the Colorado Legislature and Governor Ritter fail to submit an interrogatory to the Colorado Supreme Court in 2009 seeking guidance on constitutionally permissible pension reforms?  Why did they choose this court battle?  As we have seen, to their credit, the Colorado PERA Board of Trustees encouraged the Legislature and the Governor to submit an interrogatory to the Colorado Supreme Court in 2009.  Indeed, even the press (the Denver Post) in an editorial, implored the Colorado Legislature and Governor Ritter to submit an interrogatory.  Why have Colorado politicians forced many elderly people in the state to unnecessarily suffer through years of hell in their retirements simply because Colorado state legislators did not feel inclined to ask the Colorado Supreme Court for legal guidance in 2009?  Answer: Because they are "politicians" who were pushed by lobbyists.

Regarding "Automatic" Public Pension COLAs versus "Ad Hoc" Public Pension COLAs.

Have the Justices of the Colorado Supreme Court noticed that the question of "automatic" Colorado PERA pension COLA benefits versus "ad hoc" PERA pension COLAs has remained unmentioned by the Defendants in this case?  Why has this matter received so little attention in the case?  "Automatic" and "ad hoc" pension COLA benefits are basic structural elements of public pension systems in the United States.  The Colorado PERA pension COLA benefit is a documented "automatic" pension COLA benefit.

In my opinion, Colorado PERA's lawyers have taken their argumentation relating to the PERA COLA benefit to the farthest reaches of plausibility . . . without naming it, it now appears that Colorado PERA's lawyers seek to somehow retroactively transform the existing "automatic" PERA COLA benefit into an "ad hoc" PERA COLA benefit.  Colorado PERA's lawyers seek this PERA COLA metamorphosis in order that Colorado PERA-affiliated employers might (incredibly) meet their future "PERA COLA contractual obligations" by paying a ZERO COLA.

But, as PERA officials have confirmed many times, the PERA COLA is indeed an "automatic" public pension COLA, as opposed to an "ad hoc" pension COLA.

Colorado PERA's lawyers have apparently forgotten that the "ad hoc" PERA COLA statutory language previously existing in Colorado law was removed from the Colorado PERA statutes some years ago.  However, this fact did not escape the attention of the Colorado Court of Appeals.

As we have seen, HB 93-1324 struck the former “ad hoc” COLA language from Colorado law. The language stricken in the bill: “(2) Cost of living increases in retirement benefits and survivor benefits shall be made only upon approval by the general assembly."

The legal status of the Colorado PERA COLA benefit as an "automatic" pension COLA benefit has been confirmed in writing by Colorado PERA officials and Colorado PERA's actuaries many times.  I have published the references, by PERA officials and PERA's hired actuaries, to the "automatic" PERA COLA over the years, and I will reproduce a complete list of these references upon request.  A few particularly notable references to the Colorado PERA "automatic" pension COLA are found in the 2001 PERA Buck Consultants actuarial report, and in PERA's publication "History of Colorado PERA Legislation."

If Colorado PERA officials and lawyers want the PERA COLA to be an "ad hoc" COLA they should accept that the PERA COLA can only be (legally) transformed into an "ad hoc" COLA on a PROSPECTIVE basis, for PERA benefits that have not yet been accrued. 

Colorado PERA's administrators are quite familiar with the concept of "tiers" of public pension benefits, and the fact that tiers of public pension benefits are created to avoid unconstitutional, retroactive legislation and takings of accrued pension benefits.  Accrued PERA COLA benefits cannot be taken by the Colorado Legislature under the Contract Clause.  Indeed, Colorado PERA trustees supported the creation of a new tier of PERA COLA benefits in 2004 for just that reason.

Here are a few examples of documentation of the Colorado PERA "automatic" pension COLA:

From the December 31, 2000 PERA CAFR: “The Board agreed to support legislation designed to encourage earlier retirement and reduce the state’s costs, provided that this legislation would also change PERA’s post-retirement adjustment to an AUTOMATIC (my emphasis) increase of 3.5 percent compounded annually and increase the contribution to PERA’s Health Care Trust Fund once PERA is fully funded.  Since House Bill 00-1458 included these provisions, the Board supported this bill.”

Note that the November 20, 2001, Buck Consultants study commissioned by the Colorado State Auditor, pursuant to SB 01-149, clearly identifies the Colorado PERA 3.5 percent COLA as an “automatic” public pension COLA, refers to “guaranteed benefits at retirement,” and the “fixed” COLA, that is “compounded annually for each year of retirement.”  Significantly, the Buck report identifies the 3.5% PERA COLA as “automatic” and contrasts it with an “ad hoc” COLA “as approved by Legislature.”  Why would Colorado PERA administrators argue that the PERA COLA benefit, identified as "automatic" by PERA's own actuaries, is now an "ad hoc" COLA?  Answer: To escape their contractual obligations.

The Buck report is available here:

http://www.nctr.org/pdf/coloradodcdbstudy.pdf

Colorado PERA administrators clearly know the difference between an "ad hoc" pension COLA and an "automatic" pension COLA.  Here are a few examples from Colorado PERA's publication "History of Colorado PERA Legislation":

HB 75-1364 – Improved AD HOC (my emphasis) post-retirement benefit increases.

SB 69-144, SB 69-311, HB 69-1230, and HB 69-1247 – New annual post-retirement increase (COLA) adopted provided maximum 1.5% per year, in addition to AD HOC (my emphasis) COLA increases that were based on the year in which the retirement benefit had begun.  Link:

http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251603807998&ssbinary=true

Why did the Denver District Court Grant Summary Judgment in a Case Regarding the State of Colorado's Contractual Obligations?

In the Denver District Court Decision, Judge Hyatt noted that: "Summary judgment is a drastic remedy and should not be granted unless it is apparent that no genuine issue of material fact exists."  The Colorado Court of Appeals identified issues of material fact when sending the case to trial.  The Colorado Court of Appeals, in its Decision in this case, found that no determination has been made on several factual matters, for example, whether the SB10-001 impairment was "substantial" or "served a significant and legitimate public purpose (actuarial and funding considerations.")  If the law and the facts are clear in this case, Justus v. State, and the Denver District Court was correct in taking the extreme action of granting summary judgment, why has the case proceeded to the Court of Appeals (reversing the District Court) and now arrived at the Colorado Supreme Court?  Note that the U.S. Supreme Court has ruled that state governments shall receive very little deference in attempts to escape state contractual obligations.

Colorado's Statutory Double Standard on Public Pension Contracts – SB12-149.

The Colorado Legislature has demonstrated that it is capable of adopting prospective pension reforms.  As we have seen, the Colorado Legislature created a new tier of PERA COLA benefits in 2004 (a prospective, legal, pension reform.)  In 2012, the Colorado Legislature enacted prospective pension reform for Colorado county governments ("arms" of Colorado state government.)  The 2012 bill, SB12-149, honored existing retiree pension contracts and accrued benefits in those Colorado pension systems.  Why should a statutory double standard on public pension contractual rights exist in Colorado law?  Why should Colorado law honor accrued pension benefits in some pension plans, but permit retroactive takings of accrued benefits in other pension plans?

Language from SB12-149:

“(3) ANY MODIFICATION PURSUANT TO SUBSECTION (2) OF THIS SECTION SHALL NOT ADVERSELY AFFECT VESTED BENEFITS ALREADY ACCRUED BY MEMBERS OF SUCH DEFINED BENEFIT PLAN OR SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE PENSION BENEFITS OF RETIRED MEMBERS OR MEMBERS ELIGIBLE TO RETIRE AS OF THE EFFECTIVE DATE OF THE MODIFICATION, UNLESS OTHERWISE PERMITTED UNDER OR REQUIRED BY COLORADO OR FEDERAL LAW.”

State Legislatures Across the Country Have Adopted Legal, Prospective Pension Reforms.

Colorado is a wealthy state, with low state debt, a vibrant economy, and low taxes.  I ask, why should Colorado be among the handful of states that are attempting retroactive pension "reform" when the Colorado Legislature has not yet exhausted all prospective pension reform options?  For example, a prospective reduction of the PERA pension "multiplier" for PERA benefits not yet accrued?

Was this reform (prospective multiplier reduction) "priced" by Colorado PERA's actuaries in 2009?  We don't know.  We do not have this information because Colorado PERA's hired lobbyists (in a bill at the end of the 2009 legislative session) arranged that the entire PERA public pension reform debate (unlike other state legislatures) be conducted behind closed doors.  (Perhaps the self-interested parties pushing the SB10-001 taking did not want this particular pension reform option to be priced.)

Why should Colorado PERA retirees relinquish their contractual rights and property before the Colorado Legislature has even acted to refer a measure to Colorado voters seeking sufficient revenue to meet state contractual obligations?

To what extent could the PERA trust funds be bolstered with purely prospective pension reforms?  Should public sector contractual rights and property be relinquished before this question is answered at trial?  Were all potential prospective PERA pension reforms considered during the private lobbyist discussion of "reform" options prior to the adoption of SB10-001?

Why is it that all public pension systems in the United States have managed their pension systems with purely prospective legislation (with the exception of a handful of legislative contract breach attempts) but the Colorado PERA pension system purportedly must be managed with legislation that is retrospective under the Colorado Constitution?

Colorado PERA, a Qualified Plan for Tax Purposes Under Federal Law?

According to Colorado PERA officials, the PERA pension plan is a “qualified plan” under federal IRS regulations: “Colorado PERA is a qualified retirement plan that can substitute for Social Security, as required by law.”

https://www.copera.org/PDF/8/8-324.pdf

“PERA is a qualified retirement plan under the Internal Revenue Code Section 401(a).  As a defined benefit plan, PERA benefits are guaranteed based on a benefit formula that is set by law.”

https://www.copera.org/pdf/5/5-115.pdf

“In 1951, public employers could join Social Security; the Colorado Legislature decided to continue the PERA program instead of joining Social Security.”

http://class.ccaurora.edu/fiscal/PERA_Choice.pdf

Yet, under IRS regulations, a public pension plan must have “definitely determinable benefits” in order to pass muster as an IRS “qualified plan.”

Denver attorney Cindy Birley (a person I consider to be a champion of prospective public pension reform in Colorado) addressed this requirement for qualification of public pension plans at the Legislature’s Senate Finance Committee hearing on the bill SB12-149, on March 13, 2012:

Cindy Birley:

“Generally, you would not change people who have already retired . . .”.

“There may be an issue with what we would call ‘definitely determinable benefits,’ and this is a tax code concept.”

“The . . . Internal Revenue Code requires for a defined benefit plan that your benefit be . . .  ‘definitely determinable’.”

“So a benefit that fluctuated based on your funding, it may be difficult to change that unless it’s somehow a cost-of-living adjustment that’s done more on an ad hoc basis.”

“Because, it may not qualify as a defined benefit plan.’

“We could adjust benefits for future retirees as long as it still meets Internal Revenue Code requirements.”

“It still has to pass muster as a DB plan.”

Since the Colorado General Assembly has clawed back “definitely determinable” Colorado PERA pension COLA benefits from PERA retirees in 2010, and retrospectively altered this pension COLA benefit, how can the “automatic” PERA COLA benefit still be characterized as a “definitely determinable” public pension benefit?

IRS attorneys write that a qualified “governmental plan” must have “definitely determinable benefits”:

“Definitely Determinable Benefits/Written Plan Document Section 401(a)(25) provides that the actuarial assumptions used to calculate participants’ benefits must be specified in the plan.”

“A pension plan within the meaning of section 401(a) is a plan established and maintained by an employer primarily to provide systematically for the payment of definitely determinable benefits to his employees over a period of years, usually for life, after retirement. (§1.401-1(b)(1)(i)).”

The Colorado Legislature Gives Away Billions of Taxpayer Dollars to Corporations, But Pleads Poverty Before the Colorado Supreme Court.

Why should funding of the Colorado Legislature's enacted non-contractual "tax expenditures" take precedence over the contractual rights of Colorado public sector workers?  (The Colorado Legislature relinquishes literally billions of dollars in Colorado taxpayer resources to corporations [See Colorado Department of Revenue “Tax Expenditure” reports.])  Why should retired Colorado public workers be asked to surrender their compensation and contractual rights before the Legislature (or Colorado voters via a referred measure) are asked to reign in Colorado's corporate tax exemptions and subsidies?

Colorado's Tax Expenditure Report:

http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1251847897557&ssbinary=true

More pressing questions regarding the breach of Colorado PERA pension contracts:

Why should Colorado PERA retirees relinquish their property and contractual rights to cover state debts created as a result of Governor Bill Owens' PERA "service credit fire sale"?  Or, Colorado PERA Board of Trustees investment errors (particularly costly alternative investment allocation errors)?  Colorado PERA retirees are part of a DEFINED benefit plan and bear no market risk under their contracts.  Why should Colorado PERA retirees bear the cost of Executive and Legislative Branch mismanagement that has cost the PERA trust funds billions of dollars, and reduced PERA's funding ratio over the years?

Why should elderly Colorado residents give up their security in retirement to pay for past mismanagement of the Colorado PERA pension system by politicians, PERA trustees, and PERA administrators?  Because, in the words of former Colorado PERA Executive Director Meredith Williams, "it just makes things easier.”  It isn't so easy for pensioners watching the State of Colorado break their contracts.

Here’s the link to Meredith's comment:
http://www.leg.state.co.us/Clics/clics2010a/commsumm.nsf/b4a3962433b52fa787256e5f00670a71/84960fa73d53e222872576c600712e80/$FILE/10HseFin0210AttachG.pdf

Why should Colorado PERA retirees relinquish their property and contractual rights to cover state pension debts that have accumulated due to the Legislature's failure to pay the full PERA pension actuarially required contributions?  Or, state pension debts that have accumulated due to the acquiescence of Colorado state legislators to proposals from local government lobbyists to pay off $700 million in Colorado local government pension debt?  (That is, local government debt that is NOT the contractual obligation of the State of Colorado, as confirmed by the Dan Slack of the FPPA.) 

Why should the Colorado Supreme Court place its blessing on such irresponsible legislative action?

If past legislative mismanagement (as documented at saveperacola.com) of the PERA pension system is excused by Colorado courts, what incentive will future elected state legislators have to set aside their political aspirations and responsibly meet the public pension contractual obligations of PERA employers?

Colorado PERA's Use of Beneficiary Assets to Pay the Legal Costs of an Attempt to Take More Beneficiary Assets.

Is it appropriate for a Colorado public pension system to use the property (trust funds) that belong to vested members of the pension system for lobbying, public relations and legal services in attempts to take even more property from those same vested members?  This activity may fall within the letter of the law, but it is, without question, immoral as hell.

What Obligation Do Colorado Elected Officials Have to Uphold the Colorado Constitution?

Where is the bar set for Legislative breach of contracts to which the State of Colorado is a party? Should a Colorado legislator's oath of office to uphold the Colorado Constitution be devoid of meaning?  To what extent are Colorado governments actually restrained by the Colorado Constitution's contract provisions?  Rather than requiring a higher level of scrutiny for Colorado governments seeking to escape their own contracts, should the Colorado Supreme Court lower the bar for breach of contract by Colorado governments?

Are the contractual rights of Colorado public sector workers afforded a respect under Colorado law that is equivalent to the respect afforded to private or corporate contractual rights under Colorado law?

Why did Colorado PERA's lobbyists take the 2009 PERA pension reform debate outside of the normal, open legislative process through an amendment to legislation at the end of the 2009 legislative session?

Colorado's TABOR Amendment recognizes public pension obligations as district debt.  Should the Colorado Legislature be allowed to freely abandon district debt?  Has the TABOR Amendment relaxed any of the constraints of the Contract Clause on the actions of Colorado governments?

What would be the impact of converting any Colorado PERA pension benefit from a contractual obligation to a gratuity?  What incentive would Colorado state legislators (who have failed to responsibly fund the Colorado PERA pension system for the last twelve years) have to responsibly manage their contractual obligations going forward?

What impact would conversion of PERA benefits to gratuities have on the ability of Colorado governmental employers to attract workers in the future?  What worker will agree to provide labor to her employer for compensation to be determined after the fact by her employer?

What role has political influence played in the legislative decision to attempt a taking of the PERA COLA benefit and in litigation of the case, Justus v. State?

What percentage of future Colorado public sector revenues will be required to meet Colorado PERA contractual obligations?  Under current law, what percentage of future Colorado public sector revenues will Colorado governments give away in the form of "tax expenditures"?  (We don't know because there has been no fact-finding in this case.)

Was the State of Colorado, tenth wealthiest in the nation (by a recent assessment) insolvent at the time of the taking of the PERA COLA benefit?  Pursuant to Colorado PERA Executive Director Greg Smith's description of his own legal research in the Rocky Mountain News, Colorado PERA public pension benefits MAY only potentially be impaired in cases where public pension systems are devoid of assets.  Has Greg Smith changed his legal analysis?  If so, why? At the time of the Colorado PERA COLA contract breach the PERA pension system had a funding ratio (AFR) of 69 percent.

Support the rule of law in Colorado at saveperacola.com.  Colorado is better than breach of contract.

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  1. hawkeye says:

    Hey Algernon, the IRS is a paper tiger when it comes to chasing down powerful political entities such as state AGs.  One case in point, in the 1980s investigative reporters discovered police and firefighters in Colorado, especially Denver, were abusing disability rules.  The majority of police and firefighters were receiving disability retirements, mostly for age-related issues such as hearing loss being blamed on sirens and target practice at the shooting range.  Panels made up of insiders along with cooperative doctors were rubber-stamping disability claims allowing retired officers a tax-free retirement benefit.  When the IRS was questioned about what they were going to do about it all that came out was a big ho-hum.  Eventually they were compelled to reform the abuses at the edges.

    My point … I don't think think the Colorado AG office or PERA is concerned about the IRS poking its nose into state business, even if it involves changing the retiree COLA from "automatic" to "ad hoc". 

    • Algernon Moncrief says:

      Corporate welfare – grants of billions of dollars of taxpayer resources by the Colorado Legislature might be threatened if the State of Colorado is not allowed to break state contracts.  This information regarding Colorado as "the sixth fastest growing state" doesn't fit with the narrative that is being sold by Colorado politicians, PERA administrators, and lobbyists that the State of Colorado is confronted by a financial "crisis" of such proportions that state contracts MUST be broken.  Google the Colorado Department of Revenue's Tax Expenditure Report for an inventory of Colorado corporate welfare.

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