Chuck Ardo is Wrong

Note:  This is part of a series of posts detailing the 2009 Pennsylvania budget impasse.  To see all posts in this series, click here.

There was a very enlightening story in today’s Patriot-News.  In it, Rendell spokesman Chuck Ardo is quoted as saying:

“The Pennsylvania Constitution outranks federal law, and that constitution bars us from spending any money without an enacted budget”

This is 100% completely and totally wrong.  As I have pointed out time and time and time again, the Court did not say that the Pennsylvania Constitution outranks federal law.  Don’t take my word for it — read the Court’s decision for yourself.  The Court very clearly said that because no conflict exists between the FLSA and the Pennsylvania Constitution, the answer to the question “Does the FLSA overrule the Constitution” is “no”.  To infer, then, that “because the FLSA does not overrule the constitution, the constitution must overrule the FLSA” is a logical fallacy.  One does not imply the other; non sequitur is in full effect here.

To put this another way, let’s change the context.  Let’s imagine that your township has, as many do, a law on the books that bans outdoor leaf burning.  You file a lawsuit asking the court to clarify whether Pennsylvania’s 65MPH speed limit overrules your township’s leaf-burning law.  The court’s answer would be “no, because the two laws address two completely different concerns”.  What the Rendell administration is saying is “Look, the court said that state law does not overrule the township law; therefore, we’re going to have a huge leaf-burning fire on the capitol lawn and it’s perfectly legal!”

The actual circumstance is that neither of the two laws overrules the other.  The FLSA does not care where the money comes from, it simply says that wages must be paid.  And the cited section of the Pennsylvania Constitution does not care about the payment of wages, only where the money comes from.  The two laws exist hand-in-hand without any conflict.

What’s puzzling, however, is that earlier in the story, Ardo is quoted as saying something completely contradictory to himself:

“There is certainly a possibility that the U.S. Department of Labor could intervene,” Ardo said. “But that’s far from a certainty. … There could be recovery of payment, as well as some penalties.”

Chuck is simultaneously stating that our constitution “outranks” federal law while saying that we could (will) be on the hook for damages.  I suspect the legislature and governor’s office are beginning to realize the crapstorm they stirred up.  Had we gone through this as recently as ten years ago, things would probably be different.  Up until just a few years ago, most people did not have constant access to the Internet.  Consumers and employees did not have the self-defense resources available to them today.  And if you wanted to put up a blog and say “Hey, the governor is wrong and the legislature isn’t doing their job”, you wouldn’t have nearly as many viewers.

I think it is beginning to dawn on some of our elected officials that they will have to answer to angry taxpayers once the lawsuits start.

Three years ago, Pennsylvania voters showed that we’re not the ignorant, forgetful fools that our raise-voting legislature thought we were.  Right now they’re banking on the notion that the 2006 flush will never happen again.  Let’s show them that we haven’t forgotten anything, and in fact, have grown stronger.  Call your legislator today and demand that the budget be passed.  If you get a response like “we’re trying”, demand answers.  This is your money; let’s make sure they’re doing the jobs we sent them there to do.

16 thoughts on “Chuck Ardo is Wrong”

  1. Rendell gave an interview with a reporter from WTAJ TV10 out of Altoona yesterday. The reporter asked Rendell exactly what the employee’s are to do when they have bills due and no money coming in. His reply was.. HE HAS MADE ARRANGEMENTS FOR THE EMPLOYEES TO GET A $15,000 LOW INTERST LOAN AND THEY CAN USE THAT TO PAY OFF ALL OF THE HIGH INTEREST CREDIT CARDS THEY CURRENTLY HAVE. HE ADDED THAT THE EMPLOYEE’S SHOULD BE SO THANKFUL TO HIM FOR ARRANGING THIS LOAN THAT THEY SHOULD PLACE A STATUE OF HIM ON THEIR MANTLE.. I kid you not!.. You can be guaranteed this household will remain Rendell statue free!..

  2. We could all have posters printed…and on the kids birthdays we could hang them up and play Pin the Tail on the Donkey!

    Thanks Mr. Rendell but no thanks. I don’t have any open credit balances at high interest or otherwises and I refuse to borrow what is rightfully ours from the getgo.

    Regardless of the approval or lack of approval, seeking and securing (or not securing) said loan has an impact on our credit scores and I prefer to control mine much more carefully than that.

    Apparently Mr. Rendell could use some motherly lessons in fiscal responsibility as well as sound leadership and people skills.

  3. He must need a motherly history lesson too. All that let them eat cake kind of stuff got Marie Antoinette the guillotine…

  4. As to the statue comment…

    Harrisburg’s Mayor Reed agreed to be a bobble head to raise money for his pet, sport museum project?
    http://www.pennlive.com/midstate/index.ssf/2009/01/reed_bobblehead_to_raise_money.html

    Here is an entrepreneurial opportunity!

    Make: Rendell, Eachus, Evans, McCall, Civera, Smith, Scarnoti, Pilleggi, Corman, Mellow, Hughes, Costa, Williamson, Mundy ect. bobble head dolls. Sell them as a fund raiser for a state workers’ relief fund!

    For a broader appeal we could include state park closer and acting dcnr sec Quigley, gifted hyperbolator ed. sec. Zahochek, exthieves in chief – Vito and Fumo, and prevaricator in chief Ardo, all in limited editions.

    Pennsylvanians could collect the whole set and put them on their mantles.

  5. According to the Federal Department of Labor’s website, in Pennsylvania, an employer can designate when a payday will occur.

    I don’t think the State would set themselves up for penalties for not paying employees.

    Hoping for that is unrealistic.

  6. Hi Jason,

    You are correct in that employers can set pay dates. However, pay dates must be regular. The wording of both the FLSA (which does apply to state employees) and the PA Wage Payment & Collection Act (which MAY apply to state employees) states that payment is due on the “regular” payday. Being that state employees are paid every two weeks, failing to pay us on that timetable is a violation of the law.

    While the state could, indeed, tell us that it is moving our pay date, it would need to provide a definite date. Saying that we’ll be paid “at some point in the future” is neither paying on our regular payday nor a good-faith effort to change our pay date.

    If you research case history on the FLSA, you will find several cases where an employer tried to play the “all we did was change the pay date” card, and lost.

  7. In addition to what floor9 has said Jason, the paydays are already defined for record keeping purposes…which is required so that overtime pay can be audited. The State has not moved the paydays…thus they are obligated to pay when they say they will pay.

    Also…there are bargaining unit agreements in place and those contracts ordinarily have language in them that speaks to payday and the members being paid on payday etc. If that language is included in the bargaining unit agreements I would venture to say that the State would also be guilty of violating the bargaining unit agreements and as such could face repercussions with the NLRB if the Unions chose to pursue it.

    Finally, I spoke with DOL when this all began to go down. They told me verbally and in email that the State is not exempt from provisions of the FLSA whether they have no budget or not, that they COULD move their paydate…but that they would need to pay on that date…and that on the day the first pay is missing/late/short we shoud call their office to file a complaint since they could not intervene proactively, but once the pays were late they would be able to see about getting the Secretary involved.

    Not unrealistic at all. I hope you will join the others that call DOL on Friday since they can scarcely ignore the approximately 70000 employees that are being held hostage.

  8. Just checked my pay statement for 7-17-09. They did not take any federal or state tax out. Does that mean we’ll be taxed at a higher federal rate when we do finally pass a budget?

  9. Yes Dana I think it probably does…that is what we have been hearing will happen on the various boards. Or at least, the feeling is that when the back pay is all condensed into one paycheck it will force a higher rate of withholding.

  10. Thanks Robin, I was afraid of that. My husband and I both work for the state and we heard today they will be putting his clothing allowance on their 7-24-09 paycheck…while it means more coming in with his two day pay, I think it will knock us out of qualifying for any SNAP assistance.

  11. Afscme Master Agreement Article 19 sec 12 The salaries of employees shall be paid biweekly. In the event the payday occures on a holiday, the preceding day shall be the payday.

  12. PGM, I was reading that this morning. It caused me to send an email off to AFSCME because that, coupled with the language that they must pay x amount per classification and cannot arbitrarily amend how much they pay, what is the union doing about it? Surely it’s a deliberate violation of the bargaining unit agreement!

  13. My question is, what is AFSCME going to do for us????? I have been an employee for 15 years and am a single mom to a special needs child. My income is the ONLY source of income in my household! I am not sure how to go about buying the special dietary foods he needs in order to ensure his needs are met. Is AFSCME going to do SOMETHING or ANYTHING for us???? AFSCME is one of the most corupt unions in the nation!

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