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Thursday, July 19, 2007

I Fought the Law

A fellow commentator (JRS) on the Oregon PERS Information and Discussion Group (OPDG), sent the following letter to Steve Law of the Salem Statesman Journal in response to Mr. Law's article in this morning's SJ concerning the proposed resolution for the PERS Board to pay "window retirees" a 2007 COLA. JRS's letter is reprinted below with his permission:

"Steve –

"Your report about PERS paying a COLA this year includes the following statement, which is somewhat misleading:

'PERS has been withholding COLAs for about 35,000 retirees, as a result of 2003 pension reforms, a string of court decisions and an out-of-court settlement of a ruling by Marion Circuit Judge Paul Lipscomb.'

"It is incorrect to say that, until Judge Kantor's recent ruling, PERS has withheld a COLA "as the result of" the pension reforms and a string of court decisions. The reforms that initially provided for withholding the COLA were ruled unconstitutional and a breach of contract several years ago by the Supreme Court in Strunk, and there is imply no "string of court decisions" that caused PERS to withhold the COLA.

"In fact, the only court to rule on the COLA issue before Judge Kantor's recent ruling was the Supreme Court in Strunk where that court ruled that the COLA could not be legally withheld. As for the ruling by Judge Lipscomb that you mention in connection with PERB's settlement agreement, that ruling said nothing about withholding a COLA, but actually cautioned against trying to make any recovery from retirees. Finally, Judge Lipscomb's ruling has been dismissed by the Supreme Court since the appeal from that ruling was dismissed as moot.

"Bottom line: Until Judge Kantor's recent ruling, PERB chose to continue violating the statute mandating a COLA be paid every year, notwithstanding the fact that the Supreme Court specifically ruled that a COLA cannot be legally withheld. The only event that has "resulted in" PERB continuing to withhold the COLA all these years is PERB's claimed justification of the "settlement agreement" which is itself still under review by Judge Kantor [White v PERB, mrf] to determine if PERB violated its fiduciary duty to retirees by entering into such an agreement. PERB simply does not have any statute or court decision that supports its withholding of the COLA all these years."

For the record, JRS is a retired prosecutor (attorney). Perhaps "the Law" would like to clarify his article publicly. I'm happy to offer him the opportunity to reply to all, as well as whatever individual response he may offer to JRS.

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