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Thursday, January 26, 2006

Put Ya Hands Up

OK. My hands are on my head and I'm facin' the wall. I think the mugging is about to begin. Friday (tomorrow), the PERS Board will consider a final draft of the order "Final Order on Strunk/Eugene Repayment Recovery Method". In spite of all testimony and questions about the legality of certain aspects of PERS recovery method", PERS staff is recommending a final package that includes some very questionable passages. First, in the explanatory memo justifying the final order is a passage "If the Board adopts the Final Order, each recipient of an overpayment would be served a copy of the Order by regular US mail. Serving this Order on the recipient (with added information like appeal rights to constitute notice under ORS 238.715) most likely stops the six-year statute of limitations on collecting the overpayment." COMMENT: Clearly PERS *thinks* that the mere serving of the notice stops the statutory clock from ticking, but there is no statutory citation or case law backing up PERS blatant attempt to make an end-run around what is clearly spelled out in the ORS. PERS' position may be defensible, but they offer the Board no legal justification for the position and, if fact, as much as admit that they don't really know if this is true or not - "most likely" is not a comforting phrase.

The second issue pertains to the first. The memo goes on to state: "The notice would include the recipient's appeal rights to challenge the matters covered by the Order. Specifically, the recipient would be informed that they are entitled to seek judicial review of this Order pursuant to ORS 183.484 by filing a petition for review within 60 days from service in the Circuit Court for Marion County or the Circuit Court in the county in which the recipient resides." (emphasis added). This is, of course, the issue that triggered a pretty strongly worded letter from OPRI when the whole question of notification arose back in November. The issue is that ORS 238.715 anticipates that an invoice is to be included (so that the member actually has the necessary information to make an informed decision about whether and what to appeal!). During discussion, PERS assured the Board that the invoice was part of the notice, but that the invoice would be sent separately. The wording of the final order makes absolutely no mention of the invoice, leaving me with the very uncomfortable feeling that we will be forced to appeal on the basis of PERS merely asserting that we owe money, but without knowing how much we owe. If I were a cynical person, I'd think that PERS was just trying to drop this turkey from a high altitude and daring us to shoot it down. This brings to mind that indelible episode from the old TV sitcom "WKRP in Cincinnati" where Mr. Carlson is promoting his station by throwing live turkeys out of an airplane. When the turkeys all splatter to the ground, Mr. Carlson wanders away mumbling: "...as god is my witness, I thought turkeys could fly".

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