Caddo Commission Looks to Court to save CPERS Take!
Pictured: Elliott Stonecipher
by Elliott Stonecipher
Originally Published: February 7, 2015
Caddo Parish Commissioners unanimously voted in their Thursday meeting to seek “a permanent judicial resolution” to questions concerning the constitutionality of their participation in “CPERS,” the Caddo Parish Employees Retirement System.
Rather than depend on in-house, salaried parish attorneys to handle the task, outside counsel was hired.
It is this series of articles which publicly raised the questions courts will now – yet again – attempt to answer. In researching the matter, staff specialists for the Louisiana legislature, and others outside local government, asserted the unconstitutionality of participation in CPERS by our part-time, elected Commissioners.
Unanimous Vote of Caddo Commission Documents requested through the Louisiana Public Records Act unexpectedly also discovered that taxpayer contributions to CPERS retirement accounts had reached astonishing, incomparable levels. In 2013 and 2014, taxpayers contributed 16.75% to accounts of top-rate Commissioners and unidentified other CPERS members, but those members contributed only 9.5%.
Truly, the beneficiaries set their own benefits, without oversight.
As detailed in the first two of these articles (here and here), participation in any such governmental retirement plan by Louisiana’s part-time elected officials has been constitutionally prohibited since 70% of Louisiana (and Caddo) voters said so in a statewide referendum in the fall of 1996.
Should courts uphold the constitutional prohibition of Commissioner participation, they may well be ordered to give back the several hundred thousand taxpayer dollars they have thus far given themselves.
A 20-Year-Plus Legal Battle Thus Continues
For more than twenty years, top Caddo Parish Commission members, administrators, and attorneys have refused to take “NO” for an answer in creating and operating their very own retirement system. The response to these articles strongly suggests that many taxpayers believe Commissioners have thereby salted-away an unconscionable financial gain, both by participating in the system at all, and by setting for themselves incredibly high taxpayer contribution amounts.
Long before the current challenge, and on a legal basis completely different than violation of the 1996 constitutional amendment, a state district court judge declared the Commission’s creation to be unconstitutional, and noted that it even violated Caddo Parish’s own Home Rule Charter.
As to this first judgment of unconstitutionality, here is the ruling of Judge Kay Bates of the East Baton Rouge Parish 19th Judicial District on February 12, 1998:
“IT IS ORDERED, ADJUDGED AND DECREED that:
1. Ordinance No. 2981 adopted by the Caddo parish (sic) Commission on August 12, 1993, allowing ‘non-classifed’ employees and ‘appointed officials’ the option of participating in the Caddo parish deferred compensation program in lieu of enrolling in PERS is unconstitutional and violates Louisiana Constitution Article VI, Sec. 5 (E), as it is inconsistent with the mandatory membership provisions governing PERS …” (Emphases mine.)
Tom Arceneaux is the local attorney who represented the Caddo Parish Commission in the litigation. He was hired again for the job in Thursday’s meeting, along with law partner Jerry Edwards.
At the start of their unremitting effort to have their own retirement plan, Commissioners wrote and passed the ordinance Judge Bates cited, No. 2981 of 1993. It would have nixed competition from the Parochial Employees Retirement System of Louisiana, or “PERS,” used by parish employees around the state since 1953. PERS, however, was no push-over, filing suit in East Baton Rouge state district court on July 22, 1994, to stop the Caddo Commission’s self-interested op.
In 1996, during the litigation, Governor Mike Foster, the state legislature and Louisiana voters intervened with the passage of what became Article X, Section 29.1 of the state constitution. State legislators, along with school board, levee board, police jury, or parish council members, were prohibited from participation.
Constitutional amendment or not, lawyering in PERS v. Caddo Parish Commission ran on, and was settled by Judge Bates’ 1998 judgment in favor of PERS. Judge Bates opined that the Commission could get a special law passed to have their own plan.
In the following legislative session, Act 680 of 1999 became law, thus approving CPERS. Of course, neither it nor any other state law could legally lift the constitutional ban of Commissioner participation.
Commission attorneys continue to withhold public documents necessary to know which employees – by title, not name – are in CPERS to thereby identify those who are given the extraordinary taxpayer match.
Action concerning CPERS in Thursday’s Commission meeting included Commissioner Mike Thibodeaux’s announcement that he and five other members were “… withdrawing participation in the Caddo Parish funded portion of CPERS until such time as a judicial resolution has been reached as to its legality.”
No one with whom I have spoken believes “withdrawal” in a brief interim period is even possible. As to Commissioners somehow remaining in CPERS for a selected part of the plan, the 1996 constitutional amendment specifies that only one plan is exempted from the constitutional prohibition of part-time elected officials, the State of Louisiana Public Employees Deferred Compensation Plan.
Those with whom I have spoken expect Commission attorneys – who theoretically work for taxpayers but will actually represent interests of Commissioners and top administrators – will file a Motion for Declaratory Judgment in state district court in Caddo. Others are expected to intervene to represent citizen interests.
Appeals may be to the 2nd Circuit Court of Appeals and the Louisiana Supreme Court, or possibly directly to the top court.
… developing …
(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.)