An Exelon lobbyist is suing on behalf of a former Illinois lawmaker to secure a big payday for some of the same legislators who may soon vote on a massive ratepayer-funded bailout of the utility’s nuclear plants.
Springfield lawyer-lobbyist Eric Madiar is representing former state Rep. Michael Fortner, R-West Chicago, in a newly filed class-action lawsuit in Cook County Circuit Court. The case aims to win back cost-of-living pay raises that lawmakers, including Fortner, had previously voted to block.
The defendant in the case, Democratic state Comptroller Susana Mendoza, called the lawsuit a “slap in the face of taxpayers.”
If Fortner prevails, taxpayers will be on the hook for millions of dollars, according to a 2019 analysis by the state Commission on Government Forecasting and Accountability. That non-partisan fiscal research arm of the legislature put the cost of foregone cost-of-living pay raises for lawmakers between 2010 and 2019 at $14.4 million.
The true cost is likely higher because that estimate didn’t take into account additional stipends legislators get for having leadership positions or chairing committees, or the long-term costs associated legislative pensions.
The lawsuit was filed last Tuesday and comes at a time when Exelon is seeking legislative approval to hike rates on consumers to prop up its financially struggling Dresden, Byron and Braidwood nuclear plants. Exelon has threatened to shut the plants down if lawmakers don’t approve a bailout.
Democratic Gov. JB Pritzker had brokered a tentative agreement to allow rate increases of more than $600 million as part of a larger green-energy package that stalled during the final hours of the spring legislative session last week.
Lawmakers are expected back in Springfield – potentially this summer – to approve the energy omnibus.
State lobbying records show that Madiar is a contract lobbyist for Exelon Generation, one of a dozen lobbying clients he lists for 2021.
Between 2009 and 2014, Madiar was Senate parliamentarian and chief legal counsel to former Senate President John Cullerton, D-Chicago.
Madiar did not respond to WBEZ when asked about the optics of his involvement in the legislative back-pay lawsuit at the same time he is working on Exelon’s behalf at the statehouse.
Exelon indicated it had no problems with Madiar’s work on the legislative pay lawsuit.
“Exelon has no involvement or interest in this case,” company spokesman William Gibbons said. “Our internal policies, which place significant controls and oversight over the conduct of third-parties on behalf of the company, do not restrict lawful activities by those parties on behalf of themselves or their other clients.”
Exelon’s subsidiary, Commonwealth Edison, has operated under a cloud since it acknowledged last summer in a deferred prosecution agreement with U.S. Attorney John Lausch’s office that it engaged in a bribery-tainted lobbying scheme directed at influencing former House Speaker Michael Madigan, D-Chicago. The company admitted its goal was to win favorable legislation in Springfield.
Madigan has not been charged, but members of his inner circle have been, along with other ex-ComEd executives and lobbyists.
Unconstitutional votes or a “scam” against taxpayers?
Fortner’s lawsuit against Mendoza follows a ruling in April by a Cook County judge that two former lawmakers were entitled to backpay because it was unconstitutional for lawmakers to have rejected politically sensitive cost-of-living adjustments. Fortner is now attempting to extend that ruling to all former and current lawmakers who served for a decade.
“It is my hope that this class action will end further litigation on this subject once and for all and expedite the payment of withheld salary to all legislators serving between 2009 and 2019,” Fortner said in a statement released by Madiar and his co-counsel, Michael J. Scotti III.
Fortner’s lawsuit notes that between 2009 and 2019, the state legislature passed 10 laws that eliminated annual cost-of-living adjustments for legislators. Additionally, lawmakers imposed salary-lowering furlough days on five occasions between 2009 and 2013 that Fortner now alleges also were unconstitutional.
He argues that the Illinois constitution bars “mid-term manipulation of state legislators’ salaries for personal or political gain.” That’s even though Fortner himself voted against the pay raises seven times – actions he now argues violated the state constitution.
“The hypocrisy is … off-the-scale high and … it’s just a slap in the face of taxpayers,” Mendoza said. “What they essentially set up here years later is like a deferred compensation plan in secret.”
Mendoza’s office has calculated that if Fortner’s lawsuit prevails, the existing crop of 177 state lawmakers will see a collective increase in pay of $2.8 million. And that doesn’t take into account the effect on their legislative pensions. Nor does it account for pay that would be owed to those no longer in the General Assembly.
A legislative analysis obtained by WBEZ shows the House speaker, for example, would see a nearly $22,000 annual pay increase if Fortner’s lawsuit prevails.
According to the analysis, a retired House member who served from 2010 to 2019 would be in line for a more than $71,000 windfall if the lawsuit succeeds. That accounts for changes that would occur to legislative base pay that now stands at $67,836.
And if that retiree had served in House leadership that entire time, which comes with its own additional stipend, they would be in line for nearly $19,000 more, the analysis showed, bringing the grand total in that circumstance to an unexpected nearly $90,000 pay day.
“I think it’s very clear from a right-and-wrong perspective that these individuals really pulled a scam on taxpayers, and it makes me sick,” Mendoza said, referring to those lawmakers, like Fortner, who voted to reject COLAs and approve furloughs but now are looking to cash in from the lawsuit.
Neither Senate President Don Harmon, D-Oak Park, nor House Speaker Emanuel “Chris” Welch, D-Hillside, are weighing in on the merits of the Fortner case.
“President Harmon has not read the class-action lawsuit. He will review the court’s decision when it is available,” spokeswoman Liz Mitchell said.
And Welch spokeswoman Jaclyn Driscoll declined comment specifically on the Fortner litigation though noted “current case law says he is owed that money.”
Dave McKinney covers Illinois politics and government for WBEZ. Follow him on Twitter @davemckinney.