State retiree healthcare benefits saga continues

January 16, 2024

Trust is like an eraser. It gets smaller and smaller after every mistake.

There was a time when State of Delaware employees and retirees trusted the state to treat them honestly and fairly – and to keep its promises. Those days are slipping away, and the eraser is getting smaller and smaller.

It all began in February 2022 when the state secretly voted to take away the excellent state retiree healthcare benefits and replace them with a dollar-store version of what employees were promised during their years of service. The state then tried to whitewash that action. They thought we were an easy target and would not have the wherewithal to fight back. They were wrong.

On Sept. 25, 2022, a group of us filed a lawsuit against the state – and won. The Superior Court agreed the state had violated the Administrative Procedures Act by making a policy change to our benefits without having followed the open government and meeting requirements of the APA. The court issued a stay order, preventing the state from taking away our promised benefits. That stay remains in place today.

What the stay then allowed for was a year of open meetings held by the legislatively created Retiree Healthcare Benefits Advisory Subcommittee led by Lt. Gov. Bethany Hall-Long and state Rep. Paul Baumbach, D-Newark. That committee set a new gold standard for open discussion and openness to public comment. In the end, its well-supported recommendations pushed the State Employee Benefits Committee to reverse course and continue, for at least the next contract cycle, the excellent healthcare benefits we were promised in retirement.

That real-world victory, however, is unfortunately not the end of the story. The state decided to appeal our Superior Court victory to the Delaware Supreme Court. They seem to claim that the Superior Court’s ruling would require that every state agency go through the APA requirements every time a contract is needed for goods or services with a vendor. Hogwash.  The APA applies when there is a change in policy – not to contracts for new pencils or copy paper.  

So, the state will continue to pay hundreds of thousands of public dollars to private legal counsel to pursue a nonsensical point that serves no purpose relating to our lawsuit. In the meantime, we retirees (and employees) have to keep paying our own legal costs – some $400,000 to date, while the state uses our own tax money against us. So we get dinged twice.  But as was noted at a recent committee meeting, if the state wants to set up a legal challenge relating to some other type of contract than retiree healthcare benefits and involving some other state agency than the SEBC, it should go find someone else to fight with. We should not have to fight – and pay for – someone else’s hypothetical future challenge to some hypothetical future state agency action undertaken without following the APA steps. 

At this point, we have to ask, why is Gov. Carney allowing this to happen? Why is the SEBC allowing this to happen? Why is the General Assembly allowing this to happen? Are they wasting hundreds of thousands of dollars because somebody’s ego is wounded? The real-world battle is over – and we won. Get over it. Withdraw your Supreme Court appeal and stop bleeding retirees dry. Better yet, withdraw your appeal and pay for the attorneys’ fees incurred to stop your violation of the law. Such a positive step of doing the right thing would go a long way toward restoring our lost trust in the State of Delaware.

Our retiree organization, RISE Delaware, will continue to monitor the state’s actions and will continue to fight in court for as long as the state refuses to do the right thing. Our lives depend on it.

Karen Peterson is a retired state senator, retired longtime employee of the Department of Labor and a plaintiff in the RISE lawsuit against the state. Mary Graham is a former litigation partner in a Wilmington law firm (whose spouse is a retired University of Delaware professor) and the legal liaison for RISE in the lawsuit.

  • Cape Gazette commentaries are written by readers whose occupations, education, community positions or demonstrated focus in particular areas offer an opportunity to expand our readership's understanding or awareness of issues of interest.

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