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Do We Really Need A Constitutional Amendment?By Vincent Belluscio, Executive Director TCTANJ, Retiree PERSOne of the things that has confounded me about governors and legislatures in New Jersey is their reluctance to call for a constitutional convention to study a rewrite of the entire state constitution, that was last done in 1947, but their continued insistence that every time there is something they feel has to be done but is blocked by the constitution they decide to put it to referendum and piece meal the changes.The latest call for a referendum on the constitution has to do with pension changes that the current governor is calling for. In the report of his blue ribbon commission on changes needed to public pensions it calls for an amendment to legitimize the power of the state to reduce the existing pension and health benefits of public employees. Here is exactly what that commission report says, “Because of claims of constitutional protection, the ability of the Legislature to reduce pension benefits for individuals claiming non-forfeitable rights protection has been questioned. As a result, the Commission believes that the best means of ensuring the freedom to effect meaningful reform would be to amend the State Constitution to confirm, notwithstanding anything in the Constitution or laws of the State of New Jersey to the contrary, the power of the State to reduce existing pension and health benefits. If sufficient health benefits savings can be achieved to permit funding of the reduced pension obligations, it would be possible to include in the amendment a guarantee of the pension funding specified in the payment schedule.”This is a call to remove the constitutional protection that was afforded public employees when the constitution was written in 1947. The constitution is a sacred document that protects all citizens within New Jersey. Now, the Governor wants to take away from public employees their constitutionally protected rights to have their contractually protected pension rights protected by the New Jersey constitution. Why are public employees not entitled to the same constitutional rights that everyone else has? This governor is striving to make public employees second class citizens. The rights of the public employee were recently upheld when Judge Jacobson in the State contribution case wrote: “The New Jersey Constitution prohibits the impairment of contractual obligations, providing that, “[t]he Legislature shall not pass any . . . law impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made.” N.J. Const. art. IV, § 7, ? 3; see also U.S. Const. art. I, § 10, cl. 1. The federal and State rights are coextensive, and New Jersey courts have often looked to federal case law for guidance in adjudicating issues involving the applicability and scope of the State’s Contract Clause.” In addition, when the changes to the pension law were enacted in 2011, this is what was inserted into the non-forfeitable rights statute, (NJSA 43:3C-9.5) ‘The rights reserved to the State in this subsection shall not diminish the contractual rights of employees established by subsections a., b., and c. of this section.’ Now, all of that being said, why does this governor, who in my humble opinion has been a dismal failure in serving all of the citizens of New Jersey, choose to accept the recommendation of a partisan “fat cat” commission to overturn the findings of a judge of the superior court of New Jersey by the need for a constitutional amendment? Is it to avoid paying the pension appropriations that were agreed to in the 2011 revisions to the pension law? The ones that he has failed to make in the last four years and would rather spend tax dollars to challenge in court than make budget appropriations to cover. All of this while current employee contributions have been increased and retirees cost of living adjustments have been eliminated. If this amendment is permitted to be put to the voters by the legislature and approved it will definitively remove the protection of current and future public employees and retirees. It will permit the governor and legislature to do whatever they please with public pensions in the future. It will make all public employees true second-class citizens.This cannot be permitted! WHAT CAN BE DONE?All public employees and retirees must be made aware of this proposal. Letters of objection to this proposal must be written to the governor and the members of the legislature strongly stating the opposition to this.Op Ed pieces must be written to the major newspapers serving New Jersey to try to get the public to understand what is being proposed and why it should not be permitted to occur.An outreach must be started to get the electronic media to cover this story.Efforts must be carried out to make the general public aware of the negative effect this proposal would have on the future operations of state, local governments and public education in New Jersey.Legislators must be polled to get them to state their positions on this important proposal. Those that are opposed should be supported. Those that are in favor need to be replaced by responsible individuals that will continue to support the constitution as written and currently in place.WHAT WOULD BE POSITIVE CHANGESTO THE PENSION SYSTEMS?There are currently several separate and distinct pension systems. Some are for state employees and some are for municipal employees; then there is the teacher’s system. The liability for the teacher’s system is currently paid for from the state budget, not local budgets.We must explore the further separation of the pension systems to take oversight and control of the municipal pensions away from the state and put it back in the total control of the municipal entities. We must make sure that the state does not consolidate all of these funds and their assets into one pension.Why? Because the state pension funds are only funded to less than 40%, the municipal funds are at over 70%. This is because municipalities have been paying their pension liabilities annually (except for the pension holiday of the 1990’s that was for four years). If the funds were merged it would put the funding at a 55% average and increase the pension liability to municipalities, as well as cause an uncontrolled increase in property taxes. Municipalities and employees would be on the short end of the deal.Now is the time to cleanly and clearly separate the pension systems. Take the municipal systems and return them to full municipal control. Form a corporation that would be governed by trustees from both the political and the professional sides of government. Let the state take its systems and do as it likes. These two separate and distinct systems could then set policy and procedure to best serve their levels of government.The municipal systems could continue to function as they have. Employee contributions and municipal payments would continue to be handled in the manner they are currently. The state systems could be restructured to the ideas and design of the governors, present and future, as they see necessary to minimize the state’s contribution to the systems.Could it work? Probably, with a little tweaking. It needs to be formally discussed, not just given a cursory look and then dismissed without proper study or reflection and discussion.Where do we start? We need to bring it to the League of Municipalities and their allied organizations. We need a united front to make sure a unified voice is heard by the legislature. Then we must cultivate supporters in local governing bodies who will help us convince the legislature to introduce legislation and shepherd it through their bodies to make this happen. We must seek the governor’s support of this initiative to insure that it will become law. If we can’t get the governor’s support we must try to make sure there is enough legislative support to override a veto.This is one person’s call to action. It is by no means a complete proposal or plan, but it is a start; a conversation starter that can be developed into a formal plan of action and change. Can we join together to start this conversation?Special thanks to Keith A. Bonchi, Esq., General Counsel to the TCTANJ and to Jon Moran, Senior Legislative Analyst at the New Jersey State League of Municipalities for their input. ................
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