September 8th, 2020
Charleston Post Courier | S.C. law hides pension records
Rae Ann McNeilly, TUA’s Director of Outreach, discussed the need for transparency in the South Carolina pension system in the following article from the Charleston Post Courier.
South Carolina’s pension system paid retirees more than $2.5 billion in benefits last year. But taxpayers whose contributions to the troubled system have ballooned over the past decade have no way of knowing who gets what.
That’s because a 2008 state law exempted pension records from the state’s Freedom of Information Act, even though other states routinely make that data public.
The information being withheld conceals possible sweetheart deals and other abuses that could drive up costs in a system struggling to close a $13 billion shortfall, taxpayer watchdogs and government transparency advocates said.
Mark Sanford, who was governor when the little-known exemption took effect, said restricting access to the records is “ridiculous” and “a bit shocking.” He said he had been unaware of it before being contacted by The Post and Courier.
“It’s totally and unequivocally flawed and wrong in that it cheats the taxpayer of seeing where their money goes,” Sanford said in an interview last week. “Yet it is in keeping with the relatively closed nature of the South Carolina political system that very jealously guards its prerogatives.”
He added, “People should be able to see how their money is being wasted.”
Public workers contribute a percentage of their wages to help fund the pension system. The state — taxpayers — contributes a match that actually is a higher rate than employees pay in.
Sam Griswold, who represents the retired government workers whose records are in question, cannot understand why the records are not public. Griswold, spokesman for the State Retirees Association of South Carolina, said he attempted to get retirees’ names and addresses as part of an outreach effort for his group. But the state denied him access to the information.
“Any state employee who makes more than $50,000 gets their name published in the newspaper,” Griswold said. “I don’t know why the same rules wouldn’t apply.”
Supporters of the public-records exemption said it is needed to protect retirees’ confidentiality.
“There’s too much chance for misuse of personal information,” said David Avant, general counsel for the Budget and Control Board, which oversees the S.C. Retirement Systems.
Avant said his 84-year-old mother, a retired teacher, receives a pension.
“We need some protection of these records from folks who could use it to their detriment,” he said.
But it’s not the rank-and-file former public servants who have watchdogs concerned.
Rae Ann McNeilly, of Taxpayers United of America, a nonprofit watchdog group based in Chicago, pointed to October newspaper reports showing a union boss in Illinois legally scored a six-figure pension after working as a public school substitute teacher for one day.
McNeilly also pointed out a so-called double-dipper: The Illinois comptroller now draws a six-figure salary while also collecting a six-figure public pension from a different post she formerly held.
“While this is egregious, the real story is in the thousands of people doing this below the radar,” she said.
Closing the records
Pension records are open in Illinois and many other states. New Jersey makes pension data available online. Two Oregon newspapers recently won a public-records court case that required that state to disclose pension data as part of a legal settlement.
Across the country, the level of disclosure varies widely, said Keith Brainard, research director for the National Association of State Retirement Administrators. Some states provide full details, while others, such as South Carolina, do not, he said.
Avant, the Retirement Systems’ attorney, said the records were considered closed by that department’s own regulations even before the Legislature’s bill restricted public access to them by law in 2008.
In response to a February public-records request from The Post and Courier, the state provided a list of monthly payments due to the 131,000 retirees and their beneficiaries in the system. Names and job descriptions were not included.
The law states: “All records of all active, retired, and inactive members maintained by the South Carolina Retirement Systems are classified as confidential records. These records are exempt from the disclosure requirements of Chapter 4 Title 30,” which is the S.C. Freedom of Information Act.
The language was a small part of a 43-page bill that dealt with the Retirement Systems’ investment expectations and set guaranteed cost of living adjustments, among other provisions.
Then-Gov. Sanford vetoed the bill — he objected to measures that would increase the systems’ shortfall, according to his May 2008 veto letter — but the Legislature overrode it.
Former S.C. Rep. Dan Cooper, the Piedmont Republican who sponsored the bill, said the S.C. Retirement Systems requested the records exemption.
“It was primarily to protect people’s privacy,” said Cooper, who resigned from office in June.
Cooper said state retirement officials tied confidentiality concerns to the Health Insurance Portability and Accountability Act, or HIPAA, the federal medical privacy law.
But Jay Bender, an attorney for the S.C. Press Association, said he doubts HIPAA applies to pension records.
“If someone is getting a disability payment, I’m not sure how that’s a medical record,” Bender said. “Citing HIPAA is widely abused.”
Avant said that “even if HIPAA didn’t specifically apply, we still have lots of confidential medical records,” including disability and health benefits. That was “one of the considerations” for closing all records, he said.
Some retirement officials also were concerned that money-managing solicitors would use the records to target people who receive large pensions, Avant said.
Griswold, who represents state retirees, took issue with that claim.
“People get solicitors calling them for all kinds of things,” he said. “I don’t know why they’re singling out retirees.”
The bill’s co-sponsor, former S.C. Rep. William Cotty, a Columbia Republican, said he was unaware of the provision blocking public access to pension records. But he sees no problem with it.
“I don’t know what benefit there is for the public to know,” said Cotty, an attorney who did not run for re-election in 2008. “Why does John Doe have a right to know what I receive out of that share?”
Members of the Legislature are entitled to public pensions.
He continued: “You’re fishing with no bait. You don’t even know what you’re fishing for.”
‘What are they hiding?’
That lack of knowledge is exactly the problem, said Pete Sepp, a spokesman for National Taxpayers Union, an independent watchdog group in Alexandria, Va.
“There might be special deals that might never come out unless details are disclosed publicly,” said Sepp, whose group has fought for congressional pension records to be open. “The state-level systems have all kinds of quirks that have been negotiated but might never see the light of day.”
McNeilly, of Taxpayers United, spelled out some of those quirks.
Douple-dippers collect public pensions and public salaries simultaneously. For example, a state worker could retire at age 55 and receive a $100,000-a-year pension, then return to work for a city.
In South Carolina, more than 22,000 employees have returned to public jobs after retiring and are receiving pensions and salaries, according to the S.C. Retirement Systems’ 2011 annual financial report.
That means double-dippers represent about 17 percent of the more than 131,000 people currently receiving pensions, according to data provided by the state.
But without pensioners’ names or positions, it is impossible to know among which departments or jobs this tactic is common.
Other abuses include “spiking,” which happens when employees sharply increase their salaries in the final years of work through 11th-hour promotions or excessive overtime.
In South Carolina, pensions are calculated with a formula that averages employees’ pay usually over their final three years of work.
In other states, such as Massachusetts, reports show public employees have tried to obtain disability pensions after fabricating injuries in league with shady doctors.
“There are millions of taxpayers in the state of South Carolina who are chipping in to these programs,” said Sepp, who has testified before Congress about pension records. “Taxpayers providing the funding are in the dark.”
Bender, the S.C. Press Association attorney, questioned how government pension records are different from salary records, which are public.
McNeilly said she sees no compelling reason for the records to remain closed.
“What are they hiding?” she said.