Please don't post your comments more than once. I moderate all comments and a delay between posting and appearing is part of the drill here. I get to all comments in due time. Please don't continually repost the same comment. Only one will be posted. Thank you.
Friday, August 24, 2007
Thursday, August 23, 2007
"Attached is a copy of PERS's website posting which reports on the recent hearing with Judge Kantor. I am disappointed because the posting is so incomplete and one-sided that it paints an absolutely incorrect picture of what happened before Judge Kantor. Unfortunately many retirees [have] no other source of information and will find this posting to be very troubling. The PERS attorneys argued very vigorously that Judge Kantor's opinion was not broad enough to restrict their ability to continue to go through the Strunk/Eugene reconciliation process with the remaining 70% of retirees who have not, as yet, had their accounts adjusted. I don't think their argument was well received by Judge Kantor but he acknowledged that there was apparently some ambiguity about his prior order and promised that he would decide the specific issue of whether his decision permitted PERS to continue with the Strunk/Eugene reconciliation process. In addition the judge indicated that he would be deciding the Arken contract issue and if he decides that in favor of the window retirees, it should stop the reconciliation process in its tracks. Again I am disappointed that PERS has decided to post something so clearly biased.
As I said above, I know that many members will find this distressing and find it difficult to understand why this process can go forward despite Judge Kantor's previous opinion. PERS represented to Judge Kantor that for the vast majority of the people who are still subject to the reconciliation process, that process will most likely result in a small increase in their monthly benefit. In response to the judge's question PERS acknowledged that this will not be the increase which we would argue that they are entitled to, but nonetheless pointed out that a small increase is the most likely outcome of that process at this point. Please share this general information with your members in whatever format you think most acceptable as I would like to see some information that is more accurate disseminated to the retiree community."
For those of you who haven't read the PERS posting to which Mr. Hartman is referring, you can find it here.
Tuesday, August 21, 2007
Why the history and why the expressions of gratitude and thanks? To reduce the suspense, the answer is NOT that I'm cashing in and stopping my service. On the contrary, I'm more determined than ever to keep at this until all the litigation is formally and completely resolved. I'm expecting another five years.
I have received literally thousands of emails thanking me for what I'm doing. It is gratifying to know that people trust me and follow my writings avidly. I've also had various offers for dinner, offers to take payment for help, and other things I have politely declined. I've shared lunch with a number of grateful readers. I've shared a beer or two with other grateful readers. From here on out, I would ask that instead of you making these generous, but unnecessary, offers, you instead help me with a hobby of mine. I collect shot glasses - the more bizarre the better. I have them from all over the world. If you are travelling - to anywhere - and you want to thank me, pick up a shot-glass or two. I'm more than happy to reimburse for the shotglass and the cost of mailing, but I won't object if you choose that for yourself. If this is something you'd like to do, just do it. When you're ready, you can email me and I'll provide my home address.
I do all this work as a labor of 'love' (I use the word in a very loose sense). I do this because *I* have skin in the game and have lost lots of money just like most of my readers. My family puts up with this because they know it is important. I plan to follow through on my plan to help place nails, one at a time, into the PERB coffin. I will not shed a single tear if any of these folks resign, are fired, or die. They've done more harm to all of us than any group of 5 people I've ever encountered. The Legislature gave PERB carte blanche, and PERB took their offer with reckless abandon. Retirees aren't people to them; they are numbers on an Excel spreadhseet. It is far easier to stomp on a number than a person. Yet the PERB is completely oblivious to people. It doesn't matter one bit to them whether 500 or 5 people show up at a Board meeting. And for me - as a people person afflicted with a numbers mentality - I'm deeply offended. My writing converts that offense into umbrage and I plan to keep after these bozos until we win.
Thanks again for all your positive comments, your thanks, and your readership. Tell your friends and family about this blog. Increase its reach and its readership. While it has a great audience, many more people reading and acting out will be far more effective. I figure that between here and OPDG, less than 5% of all retirees are being reached. Help me reach another 5 - 10%. Our strength lies in numbers of people aware that there is a problem. So far, I'm convinced that not enough of the affected members are aware of the problem, much less speak out about it. Let's get some movement here. Let's double the daily readership here and double the membership over at OPDG (it is free). Power lies in numbers. We've already got great attorneys, but having more people interested and active can only help our cause. Tell the PERB you're mad as hell and you're not going to take it any more. A faint voice in the wind doesn't have much effect, but a Category 5 hurricane of objections will not go unnoticed. Let's seize control here folks. Get active.
Sunday, August 19, 2007
While I'm in Costco shopping for something else, probably unnecessary and in the 55 gallon drum size, my phone at home rings. I don't get the call because I'm not home. But when I listen to the message, Steve Law is there telling me that he's talking with Paul Cleary of PERS and they have plans. Steve Law wants my comments. It is now 6 pm on Friday night. No Steve, no comments. Based on the fact that Judge Kantor did not explicitly tell them NO, PERS is planning to start up the recalculation of benefits again. This time they will ignore the overpayments and focus only on the recalculation of 1999 earnings at 11.33% and the revised benefit it results in. The PERS slimebag lawyers told Judge Kantor that for all but a few PERS members, this will result in a slight increase in benefits while the rest of the issue of repayment for past overages continues to play out in the Courts. Now, I sat through the entire hearing, listening closely, had more than 31 witnesses to what Judge Kantor said and didn't say. While it is true that Judge Kantor did not comment directly on PERS statement that they will do this, because it does not constitute getting into PERS members accounts, Judge Kantor also said, and conveniently forgotten by Mr. Malkin (Kreacher), that he would be issuing his final order so that PERS would have no trouble understanding what he meant. This does not sound like the solid support PERS would have you believe they have going into this next phase. They are clearly living in a Parallel Universe where the laws of gravity, physics, finance, and general law apply to everyone else but them.
The betting line holds that PERS is going to try for a "severability" approach to getting rid of opposition to this plan. Bets are being taken that by virtue of the Strunk Court's ruling that the COLA freeze in section 10 was unconstitutional, that the rest of the clause makes no legal sense. If that argument holds sway, the "fixed" and the "revised benefit" language, which the Supreme Court held to be controlling goes away. They have to convince the court that by severing the COLA from section 10, there is nothing left to implement. On that groud, PERS can argue that the "revised" benefit is correct for all members and retirees and that adjustments CAN be made under ORS 238.715.
I love Parallel Universes. They let you imagine anything, do anything, screw anyone, and all without any consequences. Let's hope that PERS Parallel universe collapses like the 1986 Challenger - perhaps taking a few California lawyers with them.
P.S. (note added 8/20). A fellow member of OPDG has raised a fascinating question. If PERS goes for severability (ORS 174.040) on Section 10 of HB 2003, not only will they kill the fixed vs revised benefit, but they will also kill the 11.33% rate for 1999. Since the City of Eugene case is now vacated and has no legal effect on anyone, what will be PERS' argument for the "correct" rate for 1999? It seems to me that if PERS chooses that route, it will be caught between the proverbial rock and a hard place. Poor souls. I feel their pain.
Friday, August 17, 2007
In an incredible piece of parsing, PERS has decided that the injunction ONLY refers to collections of overpayments made after the Notice of Entitlement was issue. They believe that collecting overpayments and correcting benefits to their "right" (11.33% for 1999) amount is still within their purview. Thus, they told the judge that they were planning to continue the calculations of correct benefits and establishing the current level of benefit members should be at. It wasn't clear from this shaggy dog tale that PERS actually plans to notify the 70% whose benefit hasn't changed (except for the 2007 COLA) that their benefits are being reduced, or whether PERS is simply continuing with the calculations awaiting for an OK from the Court to send these out en masse.
The Court's reaction to this was interesting. Judge Kantor did not tell PERS they couldn't do this. He merely reminded them that his order wasn't final and that he would make double-dog sure that his final order would be crystal clear so that even the children at PERS could understand. My only question is whether anything a Judge writes that disagrees with PERS' take on the situation will ever be understood. I'm beginning to be convinced that PERS needs a Doctor Seuss-like picture book and rhyme to make judicial orders clear.
I can't begin to tell how how tiresome these California lawyers have become. Mr. Malkin is a caricature of a house elf in Harry Potter - he personally reminds me of Kreatcher. These guys are in it for the money and the longer they can string PERS along, the more money they make. Soul suckers of retirees' money coming and going.
I believe that out of all the decisions the 2003 legislature made, the absolute worst one was to permit the PERS Board to retain independent counsel and not rely on the DOJ in matters involving financial issues. This decision has already put nearly $3 million of members/retirees money into the hands of Orrick in San Francisco, and promises at least as much in additional billing if they persuade the PERB to pursue appeals of Arken and/or Robinson all the way to the Supreme Court. It isn't that other lawyers are profiting handsomely from all this litigation. At least Jim Coon and Hartman's firm get their money more-or-less voluntarily from members of the PERS Coalition. Orrick's money to fight retirees comes from accounts that would, under ordinary circumstances, be used to improve the reserves or be paid out to PER active members. It all gets written off under the category of "administrative expenses", which are those paid out of investment earnings BEFORE earnings are distributed to members.
Smile. It only hurts if you think about it. Ignorance is bliss on this detail, but what I can't figure out is why there aren't more happy people.
Thursday, August 16, 2007
From there, Joseph Malkin launched into this tedious, incoherent, and pedantic lecture to the Judge about why he (the Judge) should stay the order for PERS to stop collection. The Judge called Malkin up short when he asked whether the summary of what PERS was asking for was based on "convenience" without any other judicial basis. Malkin didn't directly answer the question, but they explained what PERS *was* doing in regards to Kantor's order, and what it wasn't doing. (I'll come back to that later). The short form is that Judge Kantor denied PERB's request for a stay on the grounds that there is no final order entered; therefore the motion for a stay is premature.
Malkin admitted that PERB didn't fully understand the scope of Judge Kantor's order. Therefore, until they received clarification, they intended to continue the freeze on invoicing retirees for "overpayments", continue to withhold money from retirees already invoiced, but they anticipated continuing to recalculate benefits for all retirees not yet invoiced. This means, that PERS is planning to continue to adjust benefits for the 1999 "overpayment", but will not include an invoice for amounts due PERS. Judge Kantor reminded them that he hadn't finalized his order, but that he intended to make very clear in his final ruling what he considered permissible and what he considers impermissible. So, until Judge Kantor issues his final order, PERS isn't planning to do anything differently than it is doing now. Members already invoiced will continue to receive adjusted benefits and actuarial reductions; it isn't clear what those 70% of window retirees will get or not get from PERS until the Judge issues final orders.
Hartman's motion to have the judge change his ruling on the "breach of contract" was accepted without argument from any party. After receiving the motion, Judge Kantor reviewed his notes on the cases, reread all the original motions and briefs and concluded that his original order did not accurately portray the status of the "breach of contract" claim. Now, the claim is open and Judge Kantor will issue a clear ruling (we hope) on that claim on its own merits.
There was a curious monologue by Malkin (PERB attorney) about the apparent logical contradiction between Kantor's decision to rule on the "breach of contract" claim (arising from the language in HB 2003 and the Supreme Court's Strunk ruling in the Sartain case), and his ruling on Robinson. Malkin claims that by ruling in favor of the Robinson plaintiffs, Kantor had already tipped his hand in ruling on Arken's breach (in short, how can you claim a breach of contract for benefit said to be fixed and computed without error, and then simultaneously saying that the only way PERS can collect for the error is via 14b1b) Malkin's point was that since 14b refers to recovering "erroneous payments" from the City of Eugene case, it isn't possible to have both "erroneous payments" collected from administrative expenses, while at the same time ruling that there was a "breach of contract" in which retirees are said to be receiving fixed benefits computed without error. Both Jim Coon (Robinson attorney) and Hartman (Arken attorney) and Judge Kantor all reminded Malkin that the Robinson class included more than the Arken class and so there was no necessary preconceived bias or contradiction from the Robinson ruling and a potential ruling in the Arken breach.
That was pretty much it. The schedule for the whole day was totally unnecessary; the conference was done by about 10:50 a.m. On the whole, I'm optimistic that Kantor will get his act together and write a clear and unambiguous ruling. I'm reluctant to predict the outcome, although I sense that Kantor wants to do the right thing and that he is not terribly impressed by the legal skills offered by the California hotshots. I lost count of the number of times Malkin mentioned the City of Eugene or Lipscomb decision, as though it had any legal relevance anymore. Similarly, watching the body language of the plaintiffs' attorneys (Hartman, Masih, and Coon) as well as Judge Kantor revealed a clear "oh god, are they still babbling about the vacated City of Eugene case", and "get a clue, Malkin".
One point that I hope Judge Kantor grasps -- although it isn't anything on the table -- is how PERS retirees are paying for both sides of the legal questions. The PERB people always manage to get in a dig about how we're receiving excess benefits, but they never talk about who's paying their salaries -- under duress.
I'm hoping that this time through, Judge Kantor will take less time to issue his final ruling, that he has fewer complicated cases on his docket, and that we can get this party rolling to the appelate or Supreme Court level before the start of the New Year. That would be instant karma.
Monday, August 13, 2007
This is one party no retiree should miss. There should be plenty of fireworks and you'll get to see all the key players in the soap opera up close and personal. The hearings are rarely boring, and Judge Kantor usually has probing and interesting questions for the lawyers. Don't come expecting any kind of a decision. This is a conference only. However, it has been my long experience that seeing and hearing the parties first hand gives you a much better feel and understanding of what is going on that relying on the biased media to pick out small nuggets for you to feast on. Remember, they're only going to tell you what THEY want you to read. And if history is a guide, the last thing they want you to read is what really happened. Come and see for yourself.
Hope to see lots of retirees on Thursday August 16, 2007. It should be one hell of a soul shakedown party.
Tuesday, August 07, 2007
Saturday, August 04, 2007
What makes this so aggravating is that PERS further insults retirees, by providing an updated "PERS: By the Numbers" on the second page, that shows that PERS is not in any financial difficulty - in fact, PERS has rejoined the very upper tier of public employee retirement funds in funding ratios. We have no unfunded actuarial liability, we are at 104% funding and employer rates have stabilized at 15% (before side accounts), when they were predicted to go to 27% back in 2003. Moreover, Tier 1/Tier 2 rates for many large employers are significantly less than the systemwide average. After PERS adjusts for the employer side accounts, the Tier 1/ Tier 2 rate is 8.1% and 6.03% for members in OPSRP.
So, the takehome message here is much like that of Monty Python's "Dead Parrot" routine. The parrot (PERS problem) is dead, kaput, kicked the bucket, pushed up daisies, and so on. And so, this raises the question of why PERS feels compelled to cut down the frequency of our statements to once yearly. No longer will we know how tax changes affect monthly take home benefits because once the new year flips over, we'll get no notification of the new takehome amount because there is no change in the gross benefit.
Why is PERS doing this? Your guess is as good as mine? My guess is that they are being penny wise and pound foolish. They're going to end up with more people requesting a changeover to monthly check rather than EFT, the customer support lights will shine brightly on the first of every month, especially on February 1st. This is about saving a piddling amount of money, but mostly it is to save staff time so they can be deployed in other malignant ways to try to steal back money from us. There is not a single retiree benefit in this. People are already pissed about this. If you don't believe me, take a look over at the Oregon PERS Discussion Group.
Oh, and I'm at a loss for a good word to describe the chutzpah that PERS has to put the back page as a Customer Service Survey. Be sure to fill it out and mail it back it. PERS needs to hear from you about this. Acquiesce at your own peril. Customer service at PERS is defined by how deeply the knife is buried in your back.
Wednesday, August 01, 2007
Don't be fooled. Don't be complacent. And worst of all, don't be that child and his lawnmower. You didn't just make $10 for mowing 5 lawns. You got $1 for mowing 50 lawns and a bunch of IOU's that the deadbeats are still unwilling to pay.
Sorry to rain on the lawn. I'm not even close to being mollified.