by Elliott Stonecipher
By 1996, Governor Mike Foster was done with part-time elected officials hitting Louisiana taxpayers for their retirement. Among those officials were legislators, but Foster brought them aboard by grandfathering-in the ones then in office. The resulting legislation bulls-eye targeted offenders and banned the giveaway not only for future legislators, but also school board, levee board, and “police jury or parish council” members.
The legislation became Act. 99 of the 1st Special (Legislative) Session of 1996, and to make sure this goodie door was nailed shut, Foster and the legislature went the last mile. On November 5, 1996, with a high presidential election turnout as an exclamation point, voters put the prohibition in the Louisiana Constitution. The vote for Proposed Constitutional Amendment No. l was strong and then some:
… statewide, 70.2% voted to nix these handouts to parish commissioners and the others, and
… in Caddo Parish, 68.9% did so.
Straight from the good government textbook, the ban was a screaming win for Louisiana taxpayers …
… except those in Caddo Parish.
Caddo Parish Commissioners totally ignored all of this. On March 23, 2000, members created and unanimously voted themselves into “CPERS,” the Caddo Parish Employees Retirement System.
Reading is Believing
That the Caddo Commission’s self-service is explicitly unconstitutional is clear in a direct comparison of the amendment language and the contrary Caddo Commission ordinance.
Here is the pertinent part of our Louisiana Constitution’s now Article 10, Section 29.1:
(A) Except as provided in Paragraph (B), the following elected or appointed officials are hereby deemed to be part-time public servants who, based on such part-time service, shall not participate in, or receive credit for service in, any public retirement system, fund or plan sponsored by the State of Louisiana or any instrumentality or political subdivision thereof.
(1) Any legislator or any member of a school board, levee board, police jury, or parish council. (Emphases mine.)
(The Paragraph B exception “grandfathered” into their existing plan any such qualifying office-holders elected prior to January 1, 1997, and did not apply.)
And here is the subject paragraph of the Caddo Commission ordinance:
Caddo Parish Ordinance 3762 of 2000. Section 2-52. Authorized Membership.
Unclassified employees of the Parish of Caddo are eligible to participate in the CPERS. Unclassified employees are defined as: Parish Commissioners; the Commission Clerk; the Parish Administrator; the Parish Administrator’s Secretary and the Parish Administrator’s Assistants; the Parish Attorney; the Assistant Parish Attorney and the Parish Attorney’s Legal Assistant; the Director of Departments and one (1) principal assistant for each such director; the Parish Engineer and any former unclassified employee who made an irrevocable election.
Unanimously voting contrary to the ban were Caddo Commissioners Jim Morris, Rose McCulloch, Carl Pierson, Sr., Gif Gillen, Joyce Bowman, Ken Epperson, Sr., Patrick Williams, John Escude, Bob Brown, Danny Dumas, Ron Webb, and Forest Davis. (Notably, Morris and Williams are now State Representatives.)
Later, in reapproving the plan with Ordinance No. 4343 of 2005, eight Commissioners voted “For” – Joyce Bowman, Clifford Collins, David Cox, Gif Gillen, Michael Long, Rose McCulloch, Jim Morris, and Ron Webb – but four were recorded “Absent” – Lindora Baker, Bob Brown, Stephanie Lynch and Carl Pierson, Sr.
The plan, CPERS, is legal for other employees, but it is illegal / unconstitutional for Commissioners.
How Others Judge the Commission Action
The intent of Governor Foster, the legislature and Louisiana (and Caddo) voters was and remains clear. In its Guide to the Proposed Constitutional Amendments for the November 1996 statewide vote, the Public Affairs Research Council (PAR) summarized it by noting, ” … part-time positions should not be considered a career, but a public service; retirement is an expensive benefit which may be abused by part-time officials … .” (Emphasis mine.)
In a current, and emphatic, response to the question, staff specialists for the Retirement Committee of the Louisiana House of Representatives noted by email that, “… such action would be prohibited by Louisiana Constitution Article X, Section 29.1 (A) which prohibits part-time public officials from participating in any public retirement system, fund, or plan sponsored by the state of Louisiana or any instrumentality or political subdivision thereof.” All emphases are theirs.
C.B. Forgotston, whose assistance in this work has been invaluable, is Louisiana’s top government watchdog and former Chief Counsel to the Louisiana House Appropriations Committee. He also stresses that participation by Commissioners in ANY public retirement system is unconstitutional. Furthermore, he says, such warrants “… the return (of) the tax dollars for their contributions to the Parish General Fund.”
Not surprisingly, Caddo Commissioners have erased transparency in on-going CPERS operation – including how and how much taxpayer money goes into Commissioners’ accounts. Such CPERS activity is buried within the Commission’s arcane annual budget process. (Commissioners likewise hide their salary increases, the base of their retirement contribution calculations, about which I recently wrote.)
Caddo Commission Response
The Commission’s response to these facts lacks in originality and substance. Parish Attorney Donna Frazier and Assistant Parish Attorney Henry Bernstein say, in essence, “the feds made us do it.” Specifically, they claim:
“… under the Social Security Act, Commissioners either had to elect to participate in Social Security, or a program such as CPERS. … So, despite the state law provisions, there is federal law which requires the Parish to consider Commissioners as employees and make contributions to a retirement system or Social Security on their behalf.”
The assertion that the Social Security Administration (SSA) “made them do it,” and that its rules trump the Louisiana Constitution’s explicit prohibition, is dispelled by reading the cited rules and regulations. In fact, The Omnibus Budget Reconciliation Act of 1990 (OBRA 90) (scroll to Item #8, then to 1990 Act) was issued to move government employees who were ducking it into Social Security, and in no way deals directly with part-time elected officials. In fact, as Forgotston explains,
“(OBRA 90) mandates that, if one has a local retirement system, one must choose it or Social Security. In other words, all employees are required to put money away for their retirement. In Louisiana, the commissioners only have one option — participate in Social Security … leges and all other part-time Louisiana officials, as defined by the state constitution, pay into Social Security.” (Emphasis mine.)
Too, the subject federal rule was on the books six years before our state’s legal and constitutional ban. Were the Caddo Commission’s interpretation of OBRA 90 accurate, the legislature’s ban would not have passed legal muster at the outset.
John Escude, the Caddo Commission’s President when the violation occurred, restated the position of Commission attorneys. He also specifically added that Commissioners relied on the counsel of then-Parish Attorney Dannye Malone, the official who signed the determinative Caddo ordinance. (Malone is now in-house counsel for the Port of Caddo-Bossier.)
Mike Thibodeaux, my district Commissioner, was at first reluctant to answer my question in writing (by email), but later did so. He, too, cited the federal rules as justification for his CPERS participation.
What We Do … and Do Not … Know
At the time of this writing, after weeks of concentrated research and document production by way of the Louisiana Public Records Act, we do not know if or how much Commissioners are personally contributing to their CPERS accounts. Commission attorneys cite an Attorney General’s opinion as their basis for refusing to provide that information, regardless that those opinions are both legally non-binding and notoriously political.
Neither do we know how much taxpayers put in Commissioner accounts between April 2000 through 2005. Those records are “in storage,” awaiting my payment of $607 for parish employees to gather and copy them.
We know only the amounts taxpayers poured into various Commissioners’ retirement accounts between 2006 and 2014, inclusive:
Commissioners (former and current):
Stephanie Lynch ….. $26,644.36
John Escude ….. $25,087.32
Jim Smith ….. $24,898.32
Doug Dominick ….. $24,342.06
Ken Epperson ….. $22,232.74
Mike Thibodaux ….. $22,216.95
Matthew Linn ….. $22,039.05
David Cox ….. $16,245.86
Rose McCulloch ….. $12,278.52
Lyndon Johnson ….. $11,272.00
Michael Williams ….. $8,717.20
Carl Pierson ….. $8,462.02
Jerald Bowman ….. $4,396.39
Clifford Collins ….. $4,488.73
Michael Long ….. $1,611.52
This part of taxpayer contributions into their (prohibited) retirement accounts totals just under $235,000.
More That We Didn’t Want to Know
When I asked the Parish Attorneys about their responsibility to represent the interests of Caddo taxpayers in this matter, the answer was no longer even surprising here:
“Should a (legal) challenge arise, it is the duty of this office to defend the legality or constitutionality of the act of the Parish Commission. Therefore, our office does not opine on the legality or constitutionality of the acts of the Parish Commission.”
Caddo taxpayers would thus be unrepresented, precisely how we arrived here.
Caddo Commissioner retirement accounts hold taxpayer money which Governor Foster, the legislature, Louisiana (and Caddo) voters and the Louisiana Constitution say was not theirs to take.
Whether gross incompetence or malfeasance, the “rule of law” has not applied.
Will it, even now?
(Elliott Stonecipher is in no way affiliated with any political party. He has no client or other relationships which in any way influence his selections of subjects or the content of any article. His work is strictly in the public interest, with no compensation of any kind solicited or accepted. Appropriate credit to Mr. Stonecipher in the sharing – unedited only, please – of his work is appreciated.)