By Greg Bishop/Illinois Radio Network
SPRINGFIELD – An attorney for the state’s largest public employee union argued in front of appellate court judges Tuesday that if state employees show up for work, they should be paid.
Attorney General Lisa Madigan’s office said if there’s no state budget, there shouldn’t be paychecks.
When the Illinois state budget impasse began in the summer of 2015, Madigan filed suit to halt state employee pay because there wasn’t an appropriation to do so. Both Gov. Bruce Rauner and the AFSCME union then got a temporary restraining order blocking Madigan’s move. The Attorney General’s Office waited until January of this year to file an appeal.
During oral arguments of the case Tuesday in front of a three-judge panel of the Fifth Circuit Court of Appeals, Madigan’s Deputy Solicitor General Brett Legner explained why the Attorney General’s office waited so long to appeal the temporary restraining order. Legner said they weren’t sitting on their hands. He said they saw a stopgap budget that paid for some government operations as a sign the impasse was breaking, but it became clear at the beginning of the this year that was not the case.
With the impasse continuing, Madigan tried to expedite the case to the Illinois Supreme Court, but the high court said it should go through the normal route.
In front of the appellate court Tuesday, Legner said it’s clear “the Illinois Constitution provides that the General Assembly by law shall make appropriations for all expenditures of public funds by the state.”
Legner argued that even the founders of the United States knew appropriations determined by Congress were important as a check against government fraud, corruption and extravagance.
But AFSCME attorney Steve Yokich said the Attorney General’s Office is going against its own argument “because she has ordered her employees to work despite the fact that there’s no appropriation for her office.”
Yokich said either the AG’s argument is too broad, or there are certain exceptions. He also said there are similarities between the constitution’s contracts clause upholding pension as a guaranteed benefit that can’t be diminished and paying state employees for the work they are contracted to do.
The state hasn’t had a contract with AFSCME since the summer of 2015, but several agreements continue the terms that were in place in the previous contract, which includes a no-lockout, no-strike agreement.
Yokich said if the courts block pay, they better be ready to indicate who is and isn’t an essential employee.
Legner said that’s not the question before the courts.
“If they want to amend their complaint and make it an essential services complaint, we can’t stop them,” Legner said. “We can argue whether that’s an appropriate one.”
Comptroller Susana Mendoza’s office provided a statement from earlier this year in which she said, “We do not welcome the prospect of state employees going unpaid … I can tell you first-hand how hard I see my employees work. They do not deserve to be used as pawns in a manufactured budget impasse. That said, I will abide by all court rulings as Attorney General Madigan pursues this court action.”
Rauner spokesperson Eleni Demertzis said, “State employees show up to work every day, and we believe they should be paid for their time.”
The case could be amended or even remanded to the trial courts, but ultimately it likely is to to be decided by the state Supreme Court. It’s unclear if a budget will be passed before the high court gets the case on appeal.
Competing measures to either have a stopgap spending bill to pay state employees or a separate measure to make state employee pay a continuing appropriation like lawmakers, constitutional officers and judges have never advanced out of the General Assembly. Neither did a budget for the coming fiscal year that begins July 1.
