Thursday, May 1, 2014

We didn't need instant replay on pension reform

For as infuriating as it has always been when an umpire blows a call, I am not sure I like instant replay. It changes the pace of the game and it takes away the intimacy of having the outcome of games decided on the field of play. It seems strange to have a decision on a key play made by a nameless, faceless person somewhere in New York (of all places) when the umpires have always had the final say on the field.

The process behind the now-failed pension reform settlements seems very much like instant replay gone awry. Full disclosure: I worked to promote pension reform and believe that the result served the best interests of all Rhode Islanders. Public employees’ pensions were preserved without further gutting funding for infrastructure, education and social services. Taxpayers took a hit, but the unfunded liability was cut by $3 billion, so the long-term savings are substantial. It seemed like Rhode Island had finally done something the right way. Months of informational sessions, dozens of hours of legislative hearings and endless briefings brought Rhode Island to a place where the General Assembly was able to take a tough vote and with a stroke of his pen, Governor Chafee signed the pension reform bill into law. It felt like good things were going to happen for Rhode Island — we led the nation in something besides unemployment and mental illness. This time there was no backroom deal, no secret meetings. The process had been open and transparent. Everyone played by the rules.

Just six months later, the public employee unions filed suit — as they had every right to — challenging the constitutionality of the statute with the argument that the existing law implied a contract and the statute could not be altered to change employee benefits. It was assigned to Judge Sarah Taft-Carter, a judge whose mother and uncle are drawing pensions and who — along with her son — will someday draw a pension too. As lawyers prepared to bring the case to trial, it appeared as if case law was on the side of the defense because the unions had often used legislation — instead of collective bargaining — to increase or change benefits over the years. As the court date drew nearer — and Judge Taft-Carter’s clear conflict of interest even landed on the front page of the New York Times — she abruptly changed the rules. She ordered mediation, instituted a gag order and started running up the state’s tab on mediation services.

We went from a fair, transparent process that complied with the Separation of Powers to a judicial tyranny where a conflicted, activist judge let a pile of lawyers — none of whom are elected — try to rewrite a law that only elected representatives have the legal right to change — all while running up more than $500,000 mediation bill. The rest of the parties in the case were left to scramble — the unions wanted to save face and didn’t want to have case law go against them. Treasurer Raimondo wanted to preserve her signature accomplishment without giving so little that she looked uncompromising. All of this while being forced to work under a gag order so that Judge Taft-Carter would never have to hear her work called into question and or fear that mistakes made in open court would get her decision overturned. Instead of seeing a blemish on her win-loss record, she simply decided to change the rules.

As disturbing as it was to see a judge corrupt our legislative process, at least the failure of the settlement puts the process back on track. It’s unfortunate that the judicial hijacking has forced a court date of September 15, a week after the Democratic primary for governor. Both sides want to be done by then — and the truth is that this case should have been heard long ago. Had it not been for the gross mismanagement by Judge Taft-Carter and the “only in Rhode Island” scenario where the politicians are on the side of transparency while the judicial system is contaminated with conflict, we might have gotten it right the first time — without the instant replay.

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