Tuesday, October 23, 2012

The Impairment Provision is Impaired by HCA #49

Author: Dick Lockhart
Source: SUAA.org
Link:  http://tinyurl.com/8cbbygq
Published:  June 5, 2012

Let us begin with Art. XIII, Sec. 5 of our Constitution.

“Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”

Now examine the proposed Constitutional Amendment #49, that will be on the November 6 ballot. The Amendment is now around 1,000 words, but read the last paragraph:

(d) Nothing in this Section shall prevent the passage or adoption of any law, ordinance, resolution, rule, policy or practice that further restricts the ability to provide a “benefit increase,” emolument increase,” or “beneficial determination” as those terms are used under this Section.” Although providing or increasing, a benefit would require a three-fifths vote of the governing body, like a school board or a City Council, restricting or eliminating a benefit can be done with a simple majority vote.

Of great concern – this Proposed Amendment appears to conflict with the existing “Impairment” provision cited above. Which would control? The accepted practice relating to statutory laws which conflict is that the last one acted upon by the Legislature controls. (See LRB Drafting Manual, page 198.) That being said, would not this Constitutional Amendment, if approved on November 6, have the effect of cancelling the protections set forth in Art. XIII, Sec. 5? In my opinion, that is its intent.

As we know, months ago, Constitutional Amendment #5 was introduced by Speaker Madigan. It was replaced by #49, much the same as #5, except (d), set forth above, was added. That very carefully crafted language was done by an astute law firm, not the Legislative Reference Bureau.

Constitutional Amendment #49 creates very special problems for State Universities, and for those who are committed to their improvement. That Amendment refers to the “governing body” of a unit of local government, and the context indicates that the “governing body” and the funding source are the same. However, for State Universities, a serious question is created. As we know, each State University has its powers set forth in the statutes, and each has its own appropriation, determined and approved annually by the General Assembly. Does that not make the General Assembly the “governing body” for each State University? If the General Assembly is not the governing body, who is? (Perhaps, another serious flaw in the Amendment?) If the General Assembly is to be the “governing body,” consider a situation where a University wants to retain the services of a faculty member doing valuable research. Does Constitutional Amendment #49 require such decisions, which may include a “pension benefit,” to go through some kind of legislative review, requiring a super-majority approval of the House and Senate? There are not answers to these questions, but it is very clear, procedures will change.

No doubt, in time, this would be sorted out, but how much time and effort would be wasted? How much damage to the State of Illinois would be caused by this ill-advised Amendment? As we know, a Constitutional Amendment would last beyond our lifetime. Also, in my opinion, this Amendment, if approved, will result in endless litigation, bringing extended delays and increased costs to all parties.
Also, does this amendment not have the effect of making Illinois less attractive and less competitive? Over time, what happens to the quality of our education and public service?


This Executive Committee has the responsibility to make the policy decisions, and provide for their implementation for the organization. Obviously, this referendum is an issue of monumental proportions for SUAA and its members, present and future. It requires strong leadership at every level. The election is only five months from today. What is your decision?

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