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TMCNet:  Public Pensions Group To Court: Don't Let Voters Be Deceived

[March 10, 2014]

Public Pensions Group To Court: Don't Let Voters Be Deceived

SACRAMENTO, Calif. & WASHINGTON --(Business Wire)--

The nation's largest association representing public pension systems today filed an amicus brief in the Sacramento County Superior Court in support of state Attorney General Kamala Harris and her title and summary for San Jose Mayor Chuck Reed's ballot initiative designed to eliminate constitutional protections for California's public employee retirement benefits.

The National Conference on Public Employee Retirement Systems (NCPERS) represents more than 550 public pension funds in the U.S. and Canada - including virtually all of California's state and county public retirement systems and several major city retirement systems. NCPERS' California member funds administer benefits for approximately 2.5 million current and retired public employees in California.

What Reed and his fellow petitioners are attempting to do in their lawsuit against Harris "is to propose a significant change to our state constitution, then shield the voters from knowing the truth about what (Reed and his fellow petitioners) seek to accomplish," NCPERS asserts in its amicus brief. "Petitioners' objections...are merely an effort to hide the truth about the Initiative from voters."

NCPERS believes Harris's title and summary for Reed's proposal "accurately and fairly informs voters that the Initiative would eliminate existing state constitutonal protections that the California Supreme Court has long held apply to state and local employees. Under the Court's prior decisions, current employees possess a 'vested' right to accrue retirement benefits for future work based on the benefits promised at the time they commenced employment - a right the Court has held is protected from impairment by the Contract Clause of the California Constitution. This is commonly referred to as the 'California Rule.'"

Reed's objections center around the following language in Harris's description of what his initiative would do:

"Eliminates constitutional protections for vested pension and retiree health care benefits for current public employees, including teachers, nurses, and peace officers, for future work performed."

His lawsuit targets the words and phrases "eliminates constitutional protections," "vested" and "teachers, nurses and peace officers."

NCPERS' brief points out that while Reed and fellow petitioner Pacific Grove Mayor William Kampe object to that language now, they have used it publicly themselves to describe the purpose of the ballot initiative - most notably in an online opinion piece in Fox and Hounds Daily, in which they argue that "government leaders have their hands tied by the 'California Rule' on vested rights... To eliminate these roadblocks to reform, we have authored a ballot initiative that would empower state and local leaders to negotiate changes to employees' future retirement accruals..."

Now that California voters have reacted negatively to the very language they used themselves to promote the ballot measure, Reed and Kampe are crying foul.

"Having previously used the word 'eliminates' to tout this very aspect of the initiative to their constituency, Petitioners now apparently fear that the voters at large will not embrace such a dramatic elimination of constitutional protections," NCPERS argues in its brief. "That fear does not, however, justify this Court's intervention to replace a perfectly accurate word, here, 'eliminates.'" With regard to Reed's objection to the term "teachers, nurses, and peace officers," NCPERS points out that half of California's approximately 2.1 million public employees fall into those categories. "Given this, it is entirely reasonable - and appropriate - for the Attorney General to specifically mention these groups so that voters are aware which professions constitute the largest sub-groups of 'public employees' who will be affected by the Initiative."

"Petitioners are free to disagree with the California Rule and, as they have done with the Initiative, propose constitutional amendments that would eliminate the California Rule," NCPERS concludes in its brief. "What Petitioners are not free to do is to propose such a significant change to our state constitution, then shield the voters from knowing the truth about what it is that the Petitioners seek to accomplish."

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