SADOW: Good Things Can Come From Bad Lawsuits

A lawsuit filed over 2012 legislative act may not win on its merits, but it should provide a push again to reform Louisiana’s inefficient fiscal structure.

The Louisiana Probation and Parole Officers Association filed suit to negate Act 597 from 2012, better known as the “funds sweep” bill from that year. In it, $3.8 million is transferred from the Adult Probation and Parole Officer Retirement Fund, created in 2009 to enable a potential method to enhance benefits for probation and parole officers. By statute, money has been collected from non-incarcerated individuals under penal supervision from fiscal year 2010 on, $65 an open case, to fund this.

Sweeps occur when undedicated monies do not match the desired level of spending by legislators. There are over 300 dedicated funding streams existing, with only a very few (and growing slowly in number) protected constitutionally from having funds taken from them. The problem occurs when the amount of money pouring in to the funds exceeds the genuine need for the function defined under statute, when ranked relatively by legislators to all other state needs. This creates surplus funds while other more important priorities otherwise would go under-funded if funded at all. The sweeps correct this statutorily-created straitjacket.

It’s not the ideal way to run a state, but until legislators get enough courage to begin eliminating many of these dedications and to take responsibility annually in making sometimes hard decisions (and not to claim that getting rid of the corrective measure instead of addressing the problem itself solves everything as do these guys), this inflexibility will not change and the cumbersome sweeps procedure must be used to avoid either raising taxes or cutting needed services while unused monies pile up, unlikely ever to be used otherwise. But in pursuing that palliative, tricky situations can crop up.

Like this one, where the officers represented claim the sweep illegitimate as it should be part of the retirement benefits of theirs, allege because of the shift it becomes a “tax” and “new fee” and could not have been accomplished in an even-numbered regular session year since the Constitution prohibits new taxes and fees in these years, and assert that payers should have been notified of the shift. Most of this is meritless: a “tax” or “fee” is defined at collection and not at time of use and the “original” fee was created in a permissible session year, and there’s nothing that requires the probationers and parolees who make the one-time payment to know where it goes.

A more legitimate question surrounds the assertion that retirement benefits are being forgone, as the original statute contains the typical boilerplate that money “shall” remain in the fund at the end of the year. But it also does not grant any benefits increase with certainty with the funds; in fact, unless the Legislature does not act to do so by the end of fiscal year 2015, the money becomes usable for any purpose within the Department of Public Safety and Corrections, thus there is no requirement that the money must be used for the specific purpose alleged. And in any event, legislation granting an increase is independent of the funds available; legally, an increase depends on no way if any funds are available unless the law was written to make them related.

So unless that exact action happens within the next two years, the contingent nature of the statute means only then, after Jun. 30, 2015, could the Association claim that its retiree members will get shortchanged an aggregate $3.8 million (plus interest) in retirement pay. But as far as any action now, it has no case (although that doesn’t mean a healthy dose of judicial activism can’t make one for them, such as what occurred recently concerning the state’s school funding formula).

Still, this points out the cumbersome nature of government by autopilot with occasional gross adjustments having to be made to get it to stay in the air. The longer the problem of ill-considered matching of revenue sources to needs goes on, the more excess funds will begin piling up in more places, and in ways where in some places they can’t be extricated by a funds sweep but would require full-blown amending and reenacting of the original statutes in order to do so.

It’s just another signal that legislators need to wipe out every statutory dedication (and perhaps even put some of those tucked into the Constitution up for a popular vote), figure out what the state’s actual real needs are and the revenue level to meet them, selectively and parsimoniously put back in only those dedications and related revenue measures about which tackle extremely important, broadly-based, and widely agreed-upon areas, and leaving the rest to yearly decision-making. Yes, it would make legislators more accountable and less able to claim some decision made years or decades ago ties their hands, but it also would create much more efficient, effective, and rational use of the people’s resources.

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