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.
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