Of the many dark clouds we will face this year, one that affects you and me directly is the prospect of a New York State Constitutional Convention. I think most of us know what this means, but let’s take a close look at the danger it represents to our pensions.
Every 20 years, the question of whether there shall be a constitutional convention automatically appears on the New York State election ballot and it’s due again on the November 2017 ballot. We will oppose this question as we have done in past years and urge all our members to vote it down, too.
First of all, from a civic point of view, there are other ways to amend the constitution for particular issues. The state Legislature can pass a proposed amendment in two successive sessions and place that item on the ballot in the next election. If it is an urgent civic matter, it can actually be done at the end of one legislative session, say November or December, and then passed again in January or February of the new session and quickly placed on the next general election ballot. So, if the issue is important, it can be addressed in a more streamlined way.
The second reason to oppose a constitutional convention is that even if it is convened for a given purpose, say governmental ethics or the environment, the delegates are allowed to consider any matter they want. So, even if the public votes for a convention based on issues that sound legitimate, the convention itself can switch gears and review any aspect of the state constitution. Yes, even public employee pensions.
To wit: There is a provision from the 1938 state constitution that says, “… no public employee pension shall be diminished or impaired … .” That is the constitutional protection and guarantee for our pensions that exists in this state and to some degree in several other states.
What is guaranteed for us? Our basic defined-benefit pension is guaranteed. The fact that our pensions are not subject to state taxation is guaranteed. The 7 percent investment return on our TDA is something we have been prepared to go to court to defend as constitutionally guaranteed.
You’ve seen the push in recent times to move to 401(k)-type defined contribution pensions and you know what a disaster that would be.
Would such a convention try to replace existing defined-benefit pensions? Perhaps not. But it could “diminish” or “impair” certain aspects of them. Just last year, the state of Illinois tried to do so and retirees saved their pensions only by going to court.
Suppose the convention inserted an innocent-sounding proviso that only in times of fiscal crisis or budgetary catastrophe could any guarantees be modified. Who would decide when such a fiduciary dynamic existed? The Legislature? The governor? A fiscal review board? Would you want your pension subject to year-to-year political ups and downs? I think not!
All items drawn up by a convention then have to appear on the next general election ballot for an up or down vote. To fight any changes adversely affecting us would require a massive campaign at great cost at a time when the U.S. Supreme Court is likely to entertain another Freidrichs-like case that could cripple the ability of a union to collect dues. A multi-year campaign would be a disaster for us.
The best way to protect our pensions is to defeat the initial question when it appears on the November 2017 ballot. And don’t be lulled into any idea of an easy success. The public right now approves of a New York State Constitutional Convention by almost 70 percent. It sounds so democratic, especially in the face of the state government corruption cases brought constantly before our eyes.
Please pay attention to this. It is serious business and could impair or diminish our pensions. Be ready to fight for your own interests.