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Wednesday, June 20, 2007

Best of All Possible Worlds

By now it should be pretty common knowledge that the PERS Coalition was the big winner in the Arken and Robinson cases. Judge Kantor's combined ruling in both cases earlier today - after a 9 month wait - pretty much puts the kibosh on PERS' plans to recover anything from retirees. In Arken he invalidated PERS' January 27, 2006 collection order (the subject of the March 2006 "letter" we all received), and enjoined PERS from recovering anything from affected retirees. Moreover, he ordered PERS to return payments that retirees have made in response to now illegal invoices. To put the icing on the cake, Judge Kantor did a careful review of the legislative history of section 14 of HB 2003. In so doing, he hoist non-state defendants' attorney Bill Gary on his own petard. He quoted Gary's remarks to the legislative committees that took testimony on HB 2003. In that testimony, Gary explained that the intent of section 14 was to insure that retirees would not have to pay anything "out of pocket" and would simply be subject to a COLA-freeze. On the basis of such testimony, and the Governor's declared statement that retirees would not have money taken away from them, Judge Kantor concluded that the legislature's clear intent was to make section 14 the EXCLUSIVE remedy for the City of Eugene case, thus removing PERS' right to collect under ORS 238.715. As a result, Judge Kantor ruled that the Robinson plaintiffs were correct in arguing that PERS has no choice but to recover the overpayments from administrative expenses, not by invoicing retirees.

As in any legal proceeding, this battle is far from over. There is the Court of Appeals and the Supreme Court that still await. But for now, we can savor the victory that we have waited several years to have. It feels good right now. It would feel a lot better if Judge Kantor had explicitly told PERS to start paying COLAs on the fixed benefit immediately. The next COLA is payable next month and it probably wouldn't be too much of an effort for PERS to start that process now while taking a bit more time to restore the previous 4 COLAs that have been frozen. That's probably too much to expect right now. It will probably require PERS to be told at the point of a legal gun that it has to do that. Apparently the Supreme Court doesn't haul enough big steel to make PERS quake in its boots. Perhaps now the thought might cross their minds. THAT would be the best of all possible worlds. In the meantime, I'll savor this moment of complete vindication. Frankly, I didn't think I'd live to see this day.

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