Wisconsin Gov. Scott Walker's state budget repair bill would be unconstitutional because it would violate the constitutional "home rule" that protects cities and villages from interference in local pensions by the state, according to a legal opinion issued today by Milwaukee City Attorney Grant Langley.
In a letter to Milwaukee Alderman Joseph Dudzik, Langley stated, "… in our judgment, the courts would find the statute unconstitutional on three grounds: first, that it unconstitutionally interferes with and intrudes upon the city's home-rule authority over its pension plan; second, that given certain vested rights or benefits that have accrued to employees currently in the plan, the statute would constitute an unconstitutional impairment of contract rights under the state and federal constitutions; and third, given these same vested rights or benefits, the proposed statute would violate the due process clauses of the state and federal constitutions because it would abrogate the terms and conditions of the Global Pension Settlement …"
Dudzik had requested Langley's opinion on the constitutionality of Walker's plan, which would revoke the collective bargaining rights of thousands of public employees in the state.
After receiving Langley's opinion, Milwaukee Mayor Tom Barrett today sent a letter to Walker, requesting that Walker seek a legal opinion from the Wisconsin Attorney General on the matter.
The following is the text of Barrett's letter to Walker:
"I am enclosing an opinion that was just issued by the independently elected Milwaukee City Attorney, Grant Langley. The City Attorney opines that the State cannot statutorily change the structure of the City of Milwaukee's Employee Retirement System as proposed in the Budget Adjustment Bill.
"In 2012, if applied to general city employees, this change would impact the City of Milwaukee by $8.3 million. If applied to Police and Fire unions, as it should be, it would impact the city by another $14.4 million.
"In his opinion, City Attorney Langley writes that the state is unable to enact changes to Milwaukee's Employee Retirement System benefit structure for the following reasons: Constitutional Home Rule, contractually vested property rights, and provisions included in the city's Global Pension Settlement of 2000.
"I am unconvinced that an increase in the employee share of the annual pension payment necessarily dilutes the benefit. The employee share of the benefit payment may increase but, the benefit does not decrease.
"Because I cannot ask him for an opinion, I am asking you to please ask the Attorney General to review the attached opinion as soon as possible and provide me with an assurance that your office and state legislative drafters reviewed these legal issues during the bill drafting process. In response to an inquiry by a Milwaukee legislator's office earlier this week, the Legislative Council indicated that since this is a matter of statewide concern, the language is constitutional.
"It is my hope that all public employees should be required to pay more toward their pension.
"For your reference, this provision can be found in Section 149 of the bill and was amended by Senate/Assembly Amendment 1. It is imperative that I am able to implement this contribution change or else we are at risk of having to implement across the board wage reductions. I would appreciate your request for swift review and response by the Attorney General."
Walker's spokesman was not immediately available to comment on Barrett's letter or Langley's opinion. Ongoing coverage of the issue will continue in Tuesday's BizTimes Daily bulletin.