Unions sue over pension changes, legislators cheer

Strange, you say.

Why would legislators be cheering — albiet solely in their non-public cell phone calls to each other — this decision by two of the state’s biggest public employee union groups to challenge the upcoming pension changes? Shouldn’t they be angry at the brazenness of these unions, or nervous that their reforms will be erased?

Technically, yes. But a court showdown is exactly what many legislators who worked on these issues anticipated and, in some instances, wanted to happen.  

The decision by the state’s firefighters and police unions to file a class-action lawsuit is at best a win-win for the Legislature, and a lose-nothing proposition at its worst. Legislators have already won many brownie points back home in their districts by passing these reforms. They can return to their hometown and stand up at the 4th of July picnic, or the Labor Day pig roast, or some other Rockwellian public gathering and say “We listened to you, the taxpayers, and we ended these outrageous abuses.”

(This of course ignores the fact these abuses have been known about and allowed to occur for years, but wasn’t worth fixing until the poll numbers from back home started to look scary. This, however, is another story.)

These legislators knew, however, that “doing what’s right” can sometimes be at odds with “doing what’s legal under law.” For example, the “right thing” in terms of dealing with the state budget deficit, arguably, would be to enact a statewide salary freeze, or even cut salaries across the board. Legally, however, the state has active contracts with the majority of state employees — contracts that require certain payments. Violating these contracts isn’t just bad-faith, but also in violation of the state Constitution which guarantees ALL contracts.

“But my employer cut my salary, and I can’t sue for breach of contract!” is the typical response from the populace. Which is true, because the average wage earner isn’t operating under a contract and thus isn’t entitled to these breach of contract protections. Unfair? Yes. Legal? Yes. This is why unions, especially in the private sector, tend to be a good thing.  

So like it or not, many public employees enjoy  Constitutionally-protected benefits because they were negotiated in good-faith and included in a legal and binding contract. (A side lesson to all this should be to start taking a closer look at what’s going on at the local level when it comes to employee contracts.)

The premise of the firefighters’ and police officers’ class-action lawsuit is a 1973 SJC ruling that said the Legislature cannot reduce pension benefits that an employee has already earned. For example, police officers are saying they expected to be able to pad their pensions by including sick-day cash-outs and uniform allowances. And fireighters already out on disability are upset their pensions will be based on their salries in the 12 months prior to the injury, not the 12-months prior to their retirement.  

(If you remember, the House argued teh ruling guaranteed employee pension benefits as of the date of hire. The Senate argued that employees can’t claim a right to benefits they haven’t yet earned.)

Many legislators knew that these were borderline changes. They knew that firefighters and police officers could make a case that changing the rules this late in the game was unfair (both legally, and arguably, morally). But the legislators also knew these were changes that had to be made, otherwise they’d get killed by the voters for passing a watered-down reform bill.

So they included the changes knowing that they’d likely be challenged in court. But here’s why this is a no-lose situation for legislators: if the court rules on the side of the unions, the legislators still win. They get to say “Hey, we tried to change the rules, but these activist judges appointed by Govs. Weld/Cellucci/Swift/Romney/Patrick, didn’t agree with us.”

And if the courts say the changes are legal — well, it just makes the legislators look even better.

And either way, the unions are the ones who take the major public relations hit.