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Wednesday, July 18, 2007

An End Has a Start

It is becoming clear to me that the "end" of our PERS struggle may be getting closer than we might have thought as recently as a month ago. It started with Judge Kantor's ruling in the Arken/Robinson cases last month. It continued yesterday with the filing/posting of the Arken plaintiffs motions for clarification to Judge Kantor at the upcoming status conference on August 16. For the first time, the right question and the heavy squeeze is being put on the Judge: do not rule that our first and second claims for relief in Arken are moot. On the contrary, they *are* the issue. They ask you to order PERS to comply with the Supreme Court ruling in Strunk (via Sartain) that the Legislature defined a "fixed benefit" that cannot be said to contain errors. Those are the Court's words, not mine, not the PERS Coalition, not Judge Kantor. Moreover, the Supreme Court ruled that the Legislature cannot withhold a COLA on any retiree benefit. The COLA is statutorily required, not optional. Thus, settlement agreement or not, PERS has no basis to collect anything from retirees as their benefits - newly defined by the 2003 legislature as "fixed" and do not contain errors. To add to the point, Judge Kantor ruled that PERS erred in sending out their January 28, 2006 "notice of intent to collect" as it violated the statute it claimed to represented - ORS 238.715. In the meantime, Judge Kantor ruled that IF PERS could figure out a legal basis for collection, they were constrained by the Legislature's HB 2003, section 14b1, which Kantor ruled as the "exclusive" remedy offered by the Legislature to the City of Eugene case. PERS didn't have 238.715 available, and even if they did, they didn't follow the rules in applying it. The notice was improper and illegal. End of story. Statute of limitations has run out, but more importantly, there is nothing to collect as no errors were made in the computation of the "fixed benefit". Judge Kantor started the end.

In the meantime, PERS seems hellbent on continuing its vendetta against retirees, all under the guise of "fairness to actives". If the retirees win, the actives will be forced to subsidize retirees. Nonsense. The Supreme Court answered the question quite clearly. If the fixed benefit is a new benefit created by the legislature, it cannot have any errors. No errors, nothing to collect, no subsidy by actives. The retiree benefits are paid from the BIF (Benefits in Force ) reserve. COLAS are normally funded by the BIF reserve. Benefits are funded by the BIF. In short, the money to cover retirees has already been collected from retiree accounts and from employer matches and sits in either the BIF or the BIF reserve. The BIF reserve is huge right now as a result of a stellar stock market for the past 4 years and continuing. There is no PERS crisis. The reforms permitted and permissible have been implemented; the stock market has soared and PERS is fully funded and sitting on top of more than $2 billion in reserves. The PERS crisis was over 2 years ago.

It is time for us to do our part to pressure the "heavy hitters" to start putting the screws to the PERS Board. The Governor is the heaviest of the heavy hitters. He appointed this board and he can influence its behavior. He may not be directly responsive, but letters pointing these facts out aimed at Representative Greg Macpherson (D, Lake Oswego), Senator Richard Devlin (D, Tualatin/Lake Oswego), Tim Nesbitt (Governor Kulongoski's Chief of Staff and former Oregon AFL-CIO President), and former State Senator Tony Corcoran all have strong influence with the Governor. Your own legislator may also be influential if he/she is from the same party as the Governor. If not, the influence may be limited. I am assembling all the needed email addresses and will place them in a link to the left later today. Now is the time to start exerting the pressure. We need to be respectful, but we don't need to be patsies any more. We won in the Supreme Court; we've won in Judge Kantor's court, and we stand before Judge Kantor real soon now to request even more. The PERS Coalition has placed compelling issues before Judge Kantor. They will be hard for him to ignore. It is time we begin to exert our own influence and remind those "heavy hitters" that they were put in those positions by the actions of "organized labor" and its subsidiaries. The reforms have worked; the crisis is over. Accept the gains and stop fighting about the losses. Give us what we are entitled to and shut down this expensive, draining, and foolish tilting at windmills. Otherwise, we are doomed to another 4 or 5 years of litigation. Pretty soon the courts will get tired of us, tired of PERS, and tired of this bickering over issues that were settled in 2005. Enough is enough already. Pay me what you owe me and I'll go away and live my retirement the way I had planned.

Update 1:30 PM. I have posted the list of those representatives and others who carry sway with the Governor in a pdf file accessible from the top link on the left. I am certain of the email addresses for all listed EXCEPT for Tim Nesbitt, whose email I'm still trying to verify. I'm pretty sure it is correct, however.

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