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Wednesday, November 14, 2007

Changing of the Guards - Part 2

I was sorely tempted to title this post "Alas poor Orrick", but I decided that was stretching artistic license too far and would break my music oriented theme. In any case, I finally have my answer about how Orrick came to be the attorneys of record for the PERS Board. Rather than try to rephrase the complicated story, I'll let David Crosley's answer speak for itself:

"In August 2003, acting upon a request by PERS, the Attorney General granted approval for PERS to retain fiduciary and litigation counsel independent of DOJ pursuant to ORS 238.657. An answer or other first appearance to the Oregon Supreme Court and the U.S. District Court was due by August 21, 2003 in response to lawsuits relating to PERS Reform.

The request for proposal (RFP) required each firm to provide a statement of qualifications and answers to questions regarding its background and qualifications.

Using the authority granted in OAR 125-247-0295, the PERS Board received responses to the RFP from Lane, Powell, Spears, Lubersky LLP (Lane Powell); Bullivant Houser Bailey PC (Bullivant); and Orrick, Herrington & Sutcliffe LLP (Orrick).

The factors in choosing Orrick were based on the selection criteria in OAR 125-247-0295: (A) The knowledge, skills and ability of the Firm that will provide Authorized Legal Services. The Firm's ability to provide Authorized
Legal Services includes the training and expertise of the Firm attorneys, including Outside Counsel. Outside Counsel must be a member of the Oregon State Bar pursuant to ORS 180.235(2);

(B) The Firm's experience, level of expertise and suitability to perform the Authorized Legal Services; (C) Whether the Firm's available personnel possess any required licenses or certifications required to perform the legal services for the Authorized Legal Services, such as licenses to practice law in the appropriate jurisdiction, or to appear in a certain forum; (D) The Outside Counsel's availability and capability to perform the Authorized Legal Services and meet the Agency's needs; (E) The commitment the Outside Counsel and Counsel's Firm can make to the Authorized Agency to meet the Agency's needs; (F) The value of the Firm's legal services, taking into account the cost of the Firm's legal services; and (G) Other factors the Authorized Agency considers relevant to accomplish an optimal, timely outcome. "

So there you have the story of how Orrick came to have the contract with PERB to represent it in the ongoing litigation. I'm particularly interested in how Orrick met criteria (B) and (D) and how (F) and (G) can be reconciled with the actual costs being incurred. I still have this visceral feeling that the deck was stacked in favor of Orrick and nothing in the responses to the RFP would have changed that outcome. I don't know what leverage Orrick has over State agencies and why it has insinuated itself into almost every level of state and local government. I *know* the firm specializes in certain fiduciary instruments, such as bonds, but I still cannot find a whit of evidence that they are experts in public employee pension law. And so, for $750 an hour, PERS (and its members) are paying for a firm that specializes in bonds and high stakes litigation. Draw whatever conclusions you wish. I'm still not buying the argument that the RFP process produced a level playing field. This was a time for a changing of the guards and I suspect Orrick was right there ready and willing to jump into the fray. They acted just like Willie Sutton, the infamous bank robber, who robbed banks because that's where the money was. Orrick robs our public employee pension fund because that's where the money is in the State of Oregon. Nice work if you can get it.


T-MBRUCE said...

After seeing that my PERS check was reduced this month, I contacted PERS earlier this week; and was transferred to the person who specifically answers questions regarding the Strunk/Eugene case. I learned a second hit is coming, however she did not tell me when. I was astounded to be told that after PERS has withheld my COLA's since 2003, I will still owe $4800 more, and I will pay that until I am no more. I let her know that I was confused because with what I had read, PERS was in contempt of court for invoicing retirees alleged overpayments of benefits; referring to Judge Kantor’s ruling. She then let me know that PERS follows the ruling in the Strunk/Eugene case. I responded with the fact that the case was vacated and rendered moot. She then told me that no one has informed her that the Strunk/Eugene case was moot, and because the Strunk/Eugene ruling was from the Supreme Court they were following that ruling; not Judge Kantor's because “he is only a Circuit Court Judge.” HELP! Is this ignorance, stupidity, or an out and out lie to keep members confused and off-balance while they decimate our accounts? PS: Does anyone have an idea if after Judge Kantor’s final clarification, if the hit we just took will prevail? If so, can these monsters still hit us with the second reduction before the final outcome???

mrfearless47 said...

Just to reassure you, if PERS were really disregarding Judge Kantor's order, why would they bother to tell you that they aren't collecting the overpayment because they have been forbidden from doing so by Judge ("Only a Circuit Court Judge") Henry Kantor. Why aren't they ignoring *that* injunction. The person you talked to is simply (a) ignorant, (b) blowing smoke up your a**, and (c) trying to further spread FUD among PERS retirees. PERS may be evil, but it is not above the law and Kantor has made that perfectly clear. We're merely waiting now to find out whether Kantor intended his ruling to be as narrow as PERS is interpreting it, or whether he intended it to be much broader. If it turns out to be the latter, not only won't PERS be able to collect the "overpayment", I suspect Kantor would order PERS to re-adjust benefits to what they were before his ruling went into effect. The Strunk ruling is pretty clear if you choose to read it at all. But if you choose to ignore it altogether, it *could* be interpreted in anyway possible. Unfortunately, we lack a Supreme Court with the huevos to enforce their own rulings. They will have to be forced to clarify their ruling should the Arken case make it there. That is one decision I will await eagerly. In the meantime, I'm waiting to see whether Judge Kantor will smack PERS upside the head with a 2 x 4, and kick them in the butt with jackboots. That would be a nice Xmas present.