Does Mr. Testerman Really Believe that the Recently Adopted Public Pension Bill Solves the "Pension" Crisis?


On Monday, November 15, 2010, the Pennsylvania House voted 165-31 to make a number of changes to the State’s public sector pension plans. The legislation increased from 5 to 10 years the time it takes for an employee to become vested, moved the retirement age back to 65, and ended the practice of withdrawing lump sum payments upon retirement. The legislation also spreads out the unfunded accrued liability over 24 years for the teachers’ pension system and over 30 years for the state workers’ system. Under the terms of the legislation, the following will be the contribution rates based upon salaries for pensions moving forward, which are obviously lower from what they were, but are still extraordinarily high:



















The President of PSEA, James P. Testerman, commented on the bill by stating that it “resolves the pension crisis in a responsible manner and over time will save the taxpayers billions of dollars. It also keeps the promise of a secure retirement for current and future workers.”

Mr. Testerman is definitely correct that the bill will keep “the promise of a secure retirement for current and future workers” who are fortunate enough to be covered under the pension program. However, the bill falls far short of resolving the “pension crisis” in a responsible manner.

The contribution rates moving forward are still extraordinarily huge obligations on the part of the taxpayers of the Commonwealth of Pennsylvania and given the fragile state of the overall economy, I cannot see how public entities moving forward will be able to meet these obligations without availing themselves of protection under Act 47 and Chapter 9 of the Bankruptcy Code.

Though the move of our State Legislature was certainly in the “right direction,” the “pension crisis” is far from over and still will represent a huge obligation moving forward in the worst economy since the Great Depression.

Pa's OOR and the Man Who Sees Dead People

Today, PA's Commonwealth Court released another Open Records decision on the very topical and very gripping issue of when the public is entitled to information from the Coroner related to his findings of cause of death.  In case you were desperately waiting for the answer to this one, apparently it is not until 30 days after the end of the year, just like it says in the Coroner's Act, but I really doubt anyone reading this blog cared too much about that issue.  So, I guess it is really not so topical.

The other issue discussed there was the dueling requests for counsel fees.  This is a much sexier (ok, maybe not sexy) and topical (this time it really is topical) issue.

The requester claimed counsel fees were owed because the Coroner's denial was "contradicted by the language [of the particular cited section] of the RTKL and undermine[d] the clear intent in the RTKL to promote timely access to public records," p. 11.

WGAL-TV lost on the initial issue dealing with the time of release, so one would think that as the non-prevailing party they would automatically lose on this issue, too.  Apparently not the case.  Instead, the court summed up the law in this area, noting the criteria required for a requester to get counsel fees following a denial.  The court pointed out that §1304 of the RTKL allows a court to award fees where:

(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or

(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.

p. 13, citing 65 P.S. § 67.1304. From there, the court (ignoring the claimed reasons why counsel fees should be awarded, and after pointing out that the TV station did not prevail) went on to examine the above criteria.  In doing so it found that "there is absolutely no evidence presented that the Coroner acted in bad faith or refused the Request based on an unreasonable interpretation of the law."  Of course, I would think that by prevailing, one obviously would not have denied a request "willfully" or with "wanton disregard" or "otherwise acted in bad faith," yet the court felt the need to actually mention it separately.

Regardless, it was good news for the Coroner, but I wonder whether winning was the key and the summary of the criteria was simply support, or is the court implying that a requester can get counsel fees under some theory even if he or she loses?

The case is Hearst Television, Inc. v. Michael L. Norris, 95 C.D. 2010, and can be found on the PA Courts' website here.

(For a short case where the applicable portion was even shorter, this post turned out to be longer than I expected.)

OOR and Home Addresses

The OOR (Office of Open Records, the initial body to which appeals of right to know issues go) has narrowed its interpretation of Judge Friedman's injunction related to the release of school employees' home addresses.   Previously, the OOR had stated that Judge Friedman's reasoning would apply equally to other agencies' employees and that it would not require such agencies to release their employees' home addresses.  It also said that equity required that it rule that way.  That position was summed-up in an advisory on the OOR's web site.

The OOR took down that advisory following the Commonwealth Court's decision, then, after yesterday's PA Supreme Court order, it put up a new one.

The new advisory (found here) now specifically states that the injunction ONLY applies to the home addresses of public school employees.  Therefore, as far as the OOR is concerned, requests to other agencies for their home addresses are still fair game.

Finally, in what reads to me as a bit of denial, the new advisory states, then reiterates, that this order is only temporary.  Nevertheless, at the end it concedes that the injunction has no end date and that it will remain in effect until further notice.

One wonders if the OOR will repudiate its prior Final Determinations in which it cited the reasoning contained in Judge Friedman's order for upholding agency denials of requests for non-school employees' home addresses.  Only time will tell.

Constitutional Right to Privacy? (a follow-up)

Following up on yesterday's bit of news, I was asked why the case cited entitled the PSEA to a stay, reimposing the injunction against releasing home addresses.  Essentially, the PA Supreme Court gave that answer by the case they cited, although the meaning of the answer is a bit cryptic.

The Court cited Pa. Pub. Util. Comm'n v. Process Gas Consumers Group case to give that entitlement.  That case sets the standards for when a "stay" is granted (sometimes called a "supersedeas," it is when a court will put its decision on hold pending the outcome of the appeal).  In applying the first part of that case's standard to the present case, we learn that the PA Supreme Court believes that the PSEA has "ma[de] a strong showing that [it] is likely to prevail on the merits." Id., at 808.

However, remember that the Commonwealth Court "dismissed" or "threw out" the case on procedural grounds, saying that the PSEA sued the wrong party, and specifically should not have sued the OOR.  This is what makes the above reference cryptic.  The appeal before the Supreme Court now is on the question whether the case should have been thrown out on these procedural grounds.  The Court could be answering that limited question (procedurally, the case should not have been thrown out at that stage of the case), or the more fundamental and ultimate question (there is a constitutional right to privacy).

Whichever reason, the PA Supreme Court has telegraphed its initial feeling that the case had sufficient merit to at least go further in the process.  For all we know, it could rule on the constitutional right to privacy issue, too.

PA Supreme Court restores injunction

Teachers' home addresses are again shielded from requests under the PA Right to Know Law.

In July 2009 Senior Judge Friedman of the Commonwealth Court, sitting alone, issued a preliminary injunction shielding school employees' home addresses from requesters.  In September 2010, the full Commonwelath Court dismissed the underlying case, thereby dismissing the injunction, as well.  On November 1, 2010, the PA Supreme Court reimposed the injunction.

Without making more of this than we can reasonably take from a decision that is summed up by the single line

Upon review of the parties’ pleadings, we believe that appellants are entitled to a stay pursuant to Pennsylvania Public Utility Comm’n v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983).

I can pass on that others have felt this is especially positive.  There are those that believe this decision, as well as the one from August 2010 hint that the PA Supreme Court will find that there is a constitutional right to privacy.  One really has to read between the lines to get that from this decision, though.

What this means is that we have returned to the situation as it existed just after Judge Friedman issued her initial injunction protecting those addresses.  While the injunction remains in effect, School Districts do not need to release home addresses and the OOR cannot order them to do so.

The "full" interim Supreme Court decision can be found on the Court's web site at Pa. St. Education Assoc., et al v. Commonwealth of Pa., et al - No. 195 MM 2010.  The August Supreme Court decision, which is even shorter, and simply 'affirms' the injunction, can be found here.