Anyway, I don’t want to brag, but I told you so.  According to a story on WHTM:

The state Supreme Court said Monday it agreed with state workers’ unions and ruled against the position that Gov. Ed Rendell had taken leading up to the July 2008 budget deal. The unions had argued that the federal Fair Labor Standards Act trumped a section of the state constitution that requires an appropriation in order for money to be paid out of the state treasury.

This is a huge victory for us bottom-of-the-ladder state workers.  But it’s a hollow victory, because although it reaffirms what we’ve known all along, the state still chose to knowingly break the law.

Remember that state employees are covered under the Fair Labor Standards act (see Garcia v San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)).  The FLSA states, in part, that employees must be paid their full wages on time, no matter what.  Numerous court cases have repeatedly upheld that employes are still responsible for timely payment even if they lack the money to do so.

This was a point of contention, as the Governor (and legislature, by proxy) argued that the Pennsylvania Constitution trumped federal law, and thus workers were not entitled to timely payment.  The Pennsylvania Supreme Court’s decision effectively destroys the Governor’s and legislature’s position.  And should they choose to appeal, the United States Supreme Court has said time and time again that the FLSA trumps state law in these circumstances.

What’s interesting is that once an employer is late in making payment to its employees, that employer is liable for damages to each employee.  In fact, the Pennsylvania Office of Administration concluded that a budget impasse would cost the state $3,000,000 — $3 million — per day.  And in United States v Klinghoffer Bros. Realty Corp (285 F.2d 487, 491 (2d Cir. 1960)), the court stated that even after an employer makes its back payment of wages, the employer is still liable for damages.

It’s kind of like stealing from your neighbor.  Even if you give the item back, you can still be prosecuted for criminal activity.

The legislature and the governor know that state employees can do little to collect these damages.  The reason for this is a complex issue involving state sovereignty, but can be summarized simply as “you can’t sue the state”.  The only entity that can hold the legislature and governor responsible for their actions is the US Department of Labor.

In the end, this is good news for state employees — despite some naysayers who say otherwise.  But it remains to be seen whether or not they’ll actually pass a budget on time this year.  Predictions?

There’s been a lot of impasse-related outrage directed at Governor Rendell lately.  From petitions calling for his impeachment to talk radio hosts all but calling for his execution, it seems everyone is holding Rendell’s feet to the fire over the impasse.

And it needs to ease up.

Rendell does, in fact, deserve partial blame for the impasse.  As the highest ranking member of the Pennsylvania Democratic party, he has the power to beat the legislators into shape (at least on the Democratic side of the aisle).  And love him or hate him, you have to admit he has considerable political clout.  Even his harshest critic would have to acknowledge that the man is a political powerhouse (his critics don’t call him “Teflon Ed” for no reason).

But we can not forget about the legislature’s role in this.  Each and every legislator shares blame equal to that of Rendell in this disgrace.  As teams, they failed to present a working budget.  As individuals, they failed to work together as a team.  And on the whole, as our elected officials, they failed to represent our interests.

An ultra-quick primer on our state government is in order.  In case you’ve somehow made it this far without understanding how our state government works, don’t be embarrassed.  It’s been a long time since high school, and most people probably couldn’t tell you how senatorial & representative districts are established.  For that matter, given the events of this year, I doubt most legislators could explain that, but now we’re just going off on a whole other tangent.

There’s a very good crash course on state government at the legislature’s official website.  Everyone should at least have a basic working knowledge of how our government works, and this site will give you plenty of information to get started.  Put very simply, there are three branches to Pennsylvania’s state government:  the Executive branch (Governor Rendell), the General Assembly (aka the legislature), and the Judicial branch (our court system).

Only two are immediately relevant to the budget process.  The General Assembly (the legislature) is made up of the Senate and the House of Representatives.  Representatives are elected every two years.  Half of the senators are elected every two years.  And of course, the governor is elected every four years with an eight-year term limit.  So every two years, voters have the power to make massive, sweeping changes within the state government.  And in a four-year period, voters can put their collective feet down and throw out every single elected official.

I’m going from memory here, and I’m sure someone will pounce on me if I’m wrong.  But to pass the budget, the House of Representatives must first draft and approve one on their own.  It then gets passed to the Senate for approval, before going to the governor for final approval.  Footnote:  The Senate can send a budget proposal to the House as a “suggestion” on how things should be done.  In a cordial world, this would be the Senate saying “Hey, here’s our thoughts, what do you folks think?”  But in the cynical, political, real world, this really says “Hey you bastards, this is what we’re gonna approve.  Dick around with it and we’ll have us a showdown!”  And thus begins the process of pleadings, committees, speeches, stumps, stunts, and general jackassery that seems to comprise our state government as of late.

In a perfect world, our elected officials would remember that they serve us.  They would remember that prior to being elected, they were just Joe Schmoe From Down The Street Who Promised To Do A Good Job For Us.  They’d have somber meetings over the impasse and all agree to belt-tightening and reasonable compromise in order to get things done.  The Senate would relent somewhat because the House would relent somewhat.  A little snip here, a little tug there, and life goes on.

In the real world, our legislature puts in two-hour days and collects $150 daily per diems while telling us they’re “working as hard as they can” and “they feel our pain”.

The point of all this?  Our legislative and executive branches have failed us.  Governor Rendell does deserve blame — and so does the legislature.  But there’s a twist:

Rendell is not up for re-election.

He has hit his term limit.  He can’t run again.  He’s essentially invincible.  He’s finished with Pennsylvania — he doesn’t care if people love him or hate him.  So he’ll do as he pleases, and — I know this hurts to hear — he will get away with it.  But the legislators are a different story.  They CAN be punished.  They DO have a lot to lose.  They can be voted out of office.

By focusing all the blame on Rendell, a lot of people will forget that we have a few hundred other people — our legislators — who are equally responsible.  Their jobs are on the line, and they would love nothing more than for all of us to blame this entirely on Rendell.

Don’t let this happen.  Tell your friends, your neighbors, your newspaper, your talk radio programs, your mailing list buddies, your family, your coworkers, and everyone you know:  The legislature shares the blame.

Do not let them get away scot-free.

Blame the Senate, the House, the Republicans, the Democrats, and the Governor.  There’s not a single one among them who does not share blame.

And there’s still the issue of inappropriate behavior by our elected officials — both Republican and Democratic.

You see, we still don’t have a budget.  Despite being several months overdue, neither the Senate nor the House nor the Governor has been able to put forth anything workable.  It’s the same old story that we’re all getting sick of hearing:  Both sides are banging their fists on the table and furiously demanding “compromise”, while feigning outrage at the very notion that they themselves will have to give up some of their ideals.

For example, take Stephen Miskin.  He’s the spokesman for the House Republicans.  And judging by his Twitter account, the House Republicans are outraged that state employees have been paid.  His timeline contains a perpetual stream of complaints over the bridge budget.  One of my favorites really drives home their “don’t blame the Senate” mentality:

One person, and one person alone cut PA Ag funding this year, Ed Rendell, Gov. of PA. Whiners trying to blame Senate, WRONG!

There isn’t a single legislator who is exempt from blame.  Democrats and Republicans, Senators and Representatives, all sit squarely at the center of their failure.  For either side to attempt to blame the other — let alone have the official spokesman for the Republican party in Pennsylvania go on a tirade blaming the Democrats for everything — really shows just how much of a game this is to our elected officials.

It’s not a budget impasse to them; it’s a mud-slinging contest.

While we were dipping into carefully-crafted savings (if we were lucky) or struggling to find ways to feed our children and pay late fees + interest on our unpaid  utility bills, our legislators were — and are — having a blast.  Apparently, this is “fun” to them.

There’s just as much guilt on the Democratic side as there is on the Republican side.  But for any legislator to issue any statement other than “We have failed you, and we are sorry” followed immediately by a detailed explanation of what they plan to do differently…  That just reeks of incompetence.

While we’re suffering, they’re making political hay.

What happened in our legislature is a twisted take on NIMBY.  Everybody furiously demands compromise, but is unwilling to compromise on their own.  And while they’re busy giving speeches and stunting in committee meetings, we go unfed.  Our bills go unpaid.  The contractors who provide services for government agencies & facilities go unpaid.  Schools are going without state subsidies. And our legislators have already begun staging themselves for re-election.

But hey, the Pennsylvania Republicans say we only have the Democrats to blame.

Remember this when elections roll around.

Finally, I haven’t been able to update for the past week or so due to a death in the family.  I’m back now.  Let’s keep the pressure on.  We only got paid because our legislators got sick of dealing with our phone calls — if the pressure continues, maybe they’ll get around to, oh I don’t know, actually passing the budget.

You can see how your legislator voted by clicking here:  SB 850

In a related note, I’ve had my hands full this past weekend, so the updates have been slow.  I’ll attempt to resume this week.

First, let me say that a stopgap budget, or any measure passed to resume our pay, is bittersweet.  True, we’ll technically be getting paychecks again.  And for a lot of state employees, that’s the difference between dinner and nothing.  So I won’t complain if our paychecks resume under such a proposal.  But at issue here is the fact that our legislature has not yet passed a formal budget, despite our constitution requiring its approval by June 30th — almost a full month ago.

Today’s meeting of the Committee to Procure Fiscal Application Commentary (or whatever it’s called) was embarrassing.  After the first 90 minutes were wasted fighting over who got to be in charge, I lost interest.  Are these REALLY the people we elected to serve our interests?

The impasse impacts every Pennsylvania taxpayer, not just state employees.  State agencies that desperately need money to operate — that have already had tax money collected from your hard-earned paycheck on their behalf — are going to go unfunded.  I’ve been saying this from the beginning — if you pay taxes in Pennsylvania, you need to be involved.  The legislature would like nothing more for everyone to continue blaming this on Governor Rendell, because he’s on his way out the door.  He has little to lose.  And as long as public outrage is focused on him, the other contributors to this disgrace — our legislators — can slip away blame-free when elections roll around.

I want you to imagine something for me.  If you’re as upset at this whole mess as I am, imagine telling your friend (or neighbor, or coworker, or family member) about the impasse.  Imagine explaining how our state has plenty of money socked away, but our legislators are too busy pushing political agendas to actually spend (or even save) any of it.  Imagine describing the liability for FLSA violations that they’ve already cost Commonwealth taxpayers.  And now imagine that person says “meh, it doesn’t really matter.  I’m sure they have a good reason.”

Anyone who doesn’t remember this when the 2010 and 2012 elections roll around is that person.

Call your legislators.  Call your governor.  Call them daily.  Let them know that this has gone on long enough.  Ask them if they plan on running for re-election.  Ask them why they went home last night without passing a budget.

Ask them why you voted for them.

Approximately 3,000 people (guess) turned out to protest the budget impasse — and specifically, how it has effectively cut 100% of funding to 100% of state agencies and programs — yesterday afternoon on the steps of the Capitol building in Harrisburg.  Supporters overruled the oppressive, muggy heat to make sure our message was heard.  We need a budget passed, and we need it passed now. The time for committees, speeches, debate, and other political rhetoric is long over.

This is far from a party issue.  Neither the Democrats nor the Republicans want a stopgap budget passed.  Doing so would severely weaken their bargaining positions.  Although both sides are accusing the other of bearing sole responsibility for the impasse, they’re really both dragging their feet equally.  Both sides are feigning outrage over the notion that they might have to compromise on their ideal budget situations.  Oh sure, they’re all perfectly willing to compromise — as long as it’s the other side doing the compromising.

One recurring theme I heard throughout today’s demonstration is that Ed Rendell is somehow solely responsible for this mess.  It is very important to remember that this is not the case.  While Mr. Rendell, being the highest-ranking official in our state government, does share responsibility for the impasse, fault does not rest squarely with him.  Our legislature shares equal blame.  This misconception needs to be cleared up so that people remember this outrage when the 2010 elections roll around.

Here are some photos from the event.  You can find the complete set of my photos on my Picasaweb.  Roxbury News has the most comprehensive, un-rushed video of the event (including the now-infamous “no budget, no peace” chant).  WGAL has video of the event here.  ABC27 did not put any video on their website, despite their cameras being present, but they do have a story here.  The Patriot-News did not cover the event (or if they did, it’s nowhere to be found on PennLive).  And not surprisingly, neither did WH “Rush Limbaugh” P.   Here are some excellent photos from @phillipsnyder.  If you have photos or videos from the event, or if you blogged about it, contact me and I’ll give you a shout here.

First, if you tell them you can no longer pay them, you may get dumped into collections immediately.  Don’t do this.  Instead, stress that you are temporarily being affected by extraordinary circumstances, and that you anticipate a resumption in pay “soon”.  If you can make them understand that you’re not simply blowing them off, they will be much more likely (but still not guaranteed) to work with you.

Second, remember that creditors are under no obligation to help you.  I know that sounds harsh, but that’s the way it is.  Logic dictates that it would be better for a given creditor or utility company to agree to defer payments for 90 days for customers in good standing, but who said business is logical?  Still, it’s worth trying.  And don’t feel bad if they can’t / won’t help.  You didn’t put yourself into this situation.

Third, I always recommend handling important financial matters like this in writing.  Let’s face it; a lot of call center employees are simply overworked and underpaid.  Their job is to get you off the phone as quickly as possible.  Whether it’s an honest mistake or a rush job, there’s a chance your call may not be handled properly.  Plus, by communicating in writing, you’ll have a paper trail of any arrangements and offers that were made.  Here’s a sample letter you can copy, drop into your favorite word processor, and edit for your own needs & situation (specifically, don’t say you have money in savings if you don’t have money in savings).  Note that I am not a lawyer, and what works for me may not work for you.  This letter is only a suggestion.

(Your name & address)

(Creditor’s name & address)

(Today’s date)

Dear (creditor)

I am writing to you in reference to my account number (insert account number here).  As you may be aware from your records, I am employed by the Commonwealth of Pennsylvania.  Due to a budget impasse forced upon me by my legislature and governor, the paychecks of all Commonwealth employees — including myself — have been temporarily interrupted.  Please be aware that I do have some money set aside in savings, and intend to do everything in my power to continue meeting my financial obligations.  However, due to the unprecedented and catastrophic nature of these circumstances, I am unsure when my paycheck will resume.

Once my paycheck does resume, I will be paid for all back wages due.  Once that happens, I will be able to make any missed or deferred payments promptly.  I am therefore making this good-faith request for your assistance in this matter.  I would like to know if you have any short-term programs, such as deferment, forbearance, emergency interest freezes, or interest re-capitalization, that I can use to help ensure that my account remains current.  I wish to stress that I am in no way refusing to pay.  I am willing to consider all suggestions, and would prefer any solution which prevents the reporting of any derogatory information to credit bureaus.

Thank you for your assistance in this matter.

Sincerely

(Your name and signature)

If you encounter any particularly good or bad institutions in relation to this, by all means feel free to post your success story (or nightmare) below.

Come to think of it, I personally would pay a large sum of money to watch AFSCME and the Rendell administration work this out in her amusing-yet-disturbing circus of arbitration (incidentally, “AFSCME & The Rendell Administration” was the name of a band at my college way back when).  But I digress.

This figure comes from a document created by the Office of Administration regarding the furloughs and how they would affect 2008-2009 fiscal year.  The document can be found by Googling “Commonwealth of PA FLSA“.  It’s the eighth entry down (if you don’t see it, sign out of everything Google and try again).  The URL begins with “www.lmsinfo.state.pa.us/portal/server.pt/…”.  It’s a Powerpoint presentation prepared on June 8, 2008, presumably to discuss implications of the then-upcoming furloughs.  It’s an interesting read in its entirety, but the most important element is on page 18:

JULY 1ST FORWARD: Budget Impasse furloughs begin if there is no signed budget. Governor’s Office decision to: 1) withhold pay – to meet legal requirements relative to expenditures after July 1st and 2) call for temporary furloughs – to avoid liability of double wages ($3 million/day).

If you whip $3 million into your calculator and assume 77,000 state employees, you’ll eventually wind up with an average annual salary of $14,220.  This is, obviously, wrong.  But if you further divide it down to the hour, it comes out to an average pay rate of $7.29 per hour.  That’s awfully close to Pennsylvania’s 2008-era minimum wage of $7.15 per hour.  I’m willing to bet that if you recalculate using the exact number of employees when this document was written, it would come out to exactly $7.15 per hour.

Algebraic shenanigans aside, this document shows that the state in 2008 was well aware of what the damages would be should wages go unpaid.  The state, if it were here for me to interview, would likely point out that this document was created June 6th, 2008 — about five weeks before the Court issued its decision in AFSCME v Rendell.  Had that decision been rendered prior to this document being created, it may say something entirely different.  And it’s worth pointing out that the Office of Administration is not responsible for us not getting paid.  Responsibility for the impasse rests solely with the legislative and executive branches of our state government, all of whom have repeatedly failed to do their jobs since, oh, April of this year.

Contact your legislators again.  Contact Governor Rendell again.  Ask them why they have chosen to cost Pennsylvania taxpayers an additional $3 million dollars every day.

I’ve already demonstrated that government employees in any capacity are covered by the FLSA.  And part of the FLSA states that employers must maintain an accurate record of hours worked and wages paid, and that these records must be open for inspection by the Secretary of the US Department of Labor.

But it seems that no such records are kept for Legislative staffers.  Channel 4 out of Pittsburgh has smelled blood in the water and is moving in for a fight:

Recently, Team 4 submitted a public records request to the state House of Representatives. Chief clerk Roger Nick sent a letter saying the House “does not possess time and attendance records that track an employee’s daily record of attendance.” Team 4 got the same answer from the clerk of the Senate.

All state employees must document their time worked.  For most of us in civil service, this is a mostly-automated process through SAP.  And employees in the legislative branch — those working under Governor Rendell (hooker jokes aside) — also document their time.  So why isn’t the legislature and its employees documenting their time?

To my friends who work in the legislature:  Sorry. 

Thanks to WTAE for digging into this.  To WGAL, WHTM, WHP, and The Patriot-News, where the hell are you guys?  Tens of thousands of your readers, listeners, and viewers are counting on you, and you’re letting us down!

As of the time of this post, none of our local media outlets are covering this story.  They’ve all been scooped by a blogger.