Tuesday, March 01, 2011

Is Langley Right?

So is Governor Walker's budget repair bill unconstitutional? Milwaukee City Attorney Grant Langley says so. Is he right? I have serious doubts. Here are some preliminary observations.

At the outset, we should note that Langley claims only that that a particular provision prohibiting cities of the first class (a category that contains only Milwaukee) from paying the employee's portion of its retirement plan (in effect, prohibiting an automatic enhancement of wages paid in the form of a pension contribution). This is, of course, the concession that we are now told the public employee unions are willing to make. Langley says, in effect, that each employee individually must consent to this. (He would probably also say that the employees unions can consent for them, but if his opinion is generally correct, it is not clear at all that this is so.)

His opinion says nothing about the restriction in collective bargaining rights although his argument based on home rule might apply to it as well.

Having said that, the opinion's conclusions seem wrong. First, it claims that the City has home rule rights guaranteed by the state's constitution. It certainly has those rights but the law permits the state to interfere with a local unit of government's affairs when they pertain to a matter of state wide concern. The opinion simply assumes this issue away, largely relying on legislative pronouncements from the first half of the twentieth century.

What the opinion ignores - and should not have - is the Governor's stated rationale for the proposed limitations on municipal contributions. Far more than in the 1930s and 1940s, Milwaukee is a supplicant of the state. It lives on money from Madison. If that is the case, then how it spends its money arguably becomes a matter of statewide concern.

More startling is the opinion's conclusion that pension contributions (as opposed to vested pension benefits) are frozen forever at the time an employee becomes part of the city's retirement system. It seems to say that, if an employee was getting 5.5% of his pay contributed toward a pension at the time he joined the system, that he is entitled to get it until he leaves city employment.

If that's the case, then the taxpayers of Milwaukee ought to be outraged that their elected officials could ever have let such a thing happen. If that's the case, then the point that I and others have been making about the ways in which public employee unions capture their governmental employers ought to be considered an immutable law of nature.

But I'm not so sure that is the case. The authority that Langley relies upon seems just as easily - and perhaps more readily understood - to apply to an employee's vested benefits, i.e., what they have already earned in terms of pension benefits, as opposed to creating an immutable right to future contributions that can never be altered.

What is evident is that City taxpayers should hope - fervently - that Langley is wrong. And city employees should not be overly encouraged. If the state cuts municipal aid, it remains the case that - even if the city must continue to contribute 5% of salary to the pension of each employee hired before this year - there is no right (at least after the expiration of existing collective bargaining agreements) to any particular salary level. If the city can no longer afford the 5%, it can simply reduce or freeze wages. If collective bargaining makes this impossible, there is an even more sobering prospect for city employees.

There is no constitutional right to a job.


Anonymous said...

I don't suppose Langley opined on whether it's constitutional for Gov. Walker to take away collective bargaining rights from the unions that endorsed his opponent, but leave intact the collective bargaining rights of the unions that endorsed him? The rational basis for that is . . . what?

Presumably it's the same rational basis that exempts a single Walker donor from environmental review for a building project in a wetland?

Langley may or may not be right about the constitutional issues he has identified. But the Equal Protection Clause of the Fourteenth Amendment prohibits the blatant political favoritism that has become apparent so early in the Walker regime. You can't deny collective bargaining rights to prison guards and grant them to cops and say there's some law and order rational basis for the political payback at issue here. Even rational basis equal protection review is not toothless, as we learned in Bush v. Gore.

Or was that a "railroad ticket, good for one day and one day only"?

George Mitchell said...

Even if Langley is right, there should be no problem. That's because we have been assured ad nauseum in recent days that labor is ready and eager to contribute to pension funds. Right? Milwaukee unions could show their good faith by re-opening bargaining right now and settling this matter.

But if they don't, Walker's budget repair bill gives Mayor Barrett other ways to make up some or all of the difference. Maybe city workers should pay nothing to their pension and 100% of their health costs.

The current rush to ram through contracts that include few or no concessions of course illustrates that the claim about having "agreed" to some of Walker's proposals is purely bogus.

Anonymous said...

Any comment on the equal protection problem with the bill, George? Or are you just going to ignore that?

George Mitchell said...

I'd be for "equal" treatment of the unions. I will be surprised if that does not end up happening down the road.

Anonymous said...

Langley is wrong, but who cares. Only a judge can say for sure. Are public employees and their unions out of control? Indeed they are. we should put all pubic employments contracts to a public vote. Real democracy as in Ancient Greece.

Anonymous said...

This issue is not about the state. Milwaukee's pension system is it's own. It is extremely solvent and with the exception of 2008, the City has not had to contribute in a decade. The Global Pension Settlement (which guarantees that the employees benefit level cannot be reduced, or diluted by increased contributions) resulted from Norquist raiding the pension fund. Multiple lawsuits were filed, because he basically stole the money from the fund. The lawsuits were dropped in exchange for benefits defined by GPS. Walker's bill changes the terms of that settlement, without due process for those affected.

An analogy might be a man sues the church for sexual abuse he suffered as a child. The church settles with the man for 10 million dollars. Before the man can receive his settlement a law is passed that states churches cannot pay more than 2 million dollars for a lawsuit. The man's due process rights are violated by an entity separate from the parties involved imposing limits and rules that alter a preexisting court order.

If the government passed a bill legalizing marijuana, should all prior convictions for possession be expunged? No. Because the sentence was issued according to the law at the time.