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States’ rights aficionados love to cite the Tenth Amendment as a basis for keeping the federal government at bay. But what happens when a city thinks a state is trampling all over its business?That’s essentially the dilemma playing out in Milwaukee, Wisc., where Mayor Tom Barrett is caught in the middle of a debate over whether or not the state can dictate how the city funds its public pension program. To further complicate matters, the debate pits Barrett against his former political rival, Gov. Scott Walker (R), who defeated Barrett in last November’s gubernatorial election.
The dispute stems from Walker’s controversial budget bill, aimed at curtailing the power of public sector unions, which mandates that the state’s public employees increase their pension contributions.
While most public workers in Wisconsin are enrolled in the state’s pension system, Milwaukee has its own fund. Since the city’s employees don’t pay into the state fund, there is some confusion about whether they are affected by the new law.
Back in February, before the state legislature passed Walker’s bill, Milwaukee City Attorney Grant Langley issued a legal opinion arguing that the pension provision did not apply to Milwaukee’s retirement system. Citing Wisconsin’s “home-rule power” — a provision in the state Constitution that allows cities to govern their affairs independently of the state — Langley wrote that Milwaukee could operate its pension fund however the city saw fit.
When the bill became law, however, Barrett sought a second opinion, asking Walker to have the state’s Attorney General settle the matter. (Barret does not have the power to independently request the attorney general’s opinion.) Walker declined to pass the issue along to the state AG, instead asking his own legal team to handle it. According to the Milwaukee Journal-Sentinel, Barrett never heard back from Walker’s office until his chief of staff, Patrick Curley, repeatedly pressed them on the matter — and when he did hear back, the response didn’t really resolve anything.
“As you know, it is not the role of the governor’s office to provide legal advice to the city of Milwaukee,” Walker’s chief legal counsel, Brian Hagedorn, wrote in a letter to Curley. “Therefore, though I would be happy to provide a fuller response to Mr. Langley’s opinion, I do not believe that would be appropriate in this situation, especially given the highly politicized nature of questions regarding [the budget bill.]”
Curley told the JS that the letter, “basically says nothing,” and that the long delay in hearing back from the state was a direct jab at Barrett.
That essentially leaves Milwaukee back at square one. The city can either ignore the new law and risk a lawsuit from the state, or go along with it and risk a lawsuit from city employees furious about the infringement on their pensions. If they do end up going along with the law, that would set off another standoff, this one with Milwaukee’s City Comptroller W. Martin Morics, who has said he will refuse to take the increased pension payments out of workers’ paychecks.
Milwaukee is currently hammering out a budget for next year that will have to take the new law into account. As of now, it’s not clear how they will act.