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Saturday, December 29, 2007

Grow Old With Me

Yesterday, the Oregon Supreme Court issued its long awaited opinion in the case Clarke v OHSU. The particulars of this case aren't terribly relevant to our situation, but there is an eerily familiar tempo to the case that supports my claim that the PERS cases, in particular Arken and Robinson, are unlikely to be finished in any material way until the Supreme Court rules in about 2012. I may be overestimating how quickly the Court will act. The original case Clarke v OHSU was filed in 1998 in Judge Kantor's Circuit Court in Multnomah County. It was a particularly complicated case and by the time it was finally filed, depositioned, tried, and ruled on by a jury, the decision - in favor of OHSU - was issued in 2001. It then went to the Oregon Court of Appeals where the ruling - overturning Judge Kantor's decision - was in favor of the Clarke family. That ruling came down in 2006. The Supreme Court heard arguments in Clarke v OHSU earlier in 2007 and took nearly a year to issue its ruling - affirming the Court of Appeals and remanding the case back to Judge Kantor for final disposition.

If we use this case as an example of how long it takes complex cases to be litigated through the court system, it is unlikely that our cases will rush speedily to final judgement. Ours *is* a complicated case. It only seems easy and obvious to us, but to Judges and those specializing in administrative and contract law, our cases are quite complicated and rulings rarely come quickly. That said, Judge Kantor is especially slow in issuing his rulings according to several former court reporters familiar with the workings of the Multnomah County Circuit. Judge Kantor is apparently regarded as one of the Judges who takes quite some time to issue rulings. He is not overturned all that often, certainly no more than the speedier judges, and the OHSU case should not be taken as a harbinger of Judge Kantor's record with the OSC. But, anyone who thinks final resolution of our cases will come quickly will be in for a rude and unpleasant shock. Justice delayed may be justice denied, but the wheels of our justice system just plain move slowly. I suspect we'll all grow old together waiting for a final decision.

The only good news in all this is that we will have some political change in both the Courts and the Governor's office by the time these cases get to the Oregon Supreme Court. Perhaps the next Governor will decide to cut the PERS Board loose and put in his/her own chosen ones. Perhaps if that happens, we might see some movement towards a settlement rather than waiting for the Supreme Court again. It will be 2010 before that happens, but since we're only 3 days from 2008, 2010 doesn't seem that far away anymore. So, let's grow old together, but let's do it with vim, vigor, and a never say die conviction. We will not give up.

Tuesday, December 25, 2007

Monday, December 24, 2007

Gimme Some Truth

Sometime last week the PEW Charitable Trust published a document entitled "Promises With A Price: Public Sector Retirement Benefits". The document can be found here. The Oregonian, as well as the website BlueOregon have been touting this document as definitive proof that Oregon's system is the best in the country, and using the PEW findings to emphasize just how much the reforms enacted by the Oregon Legislature in 2003 are working. Here are the facts: Oregon is 110% funded. That means that there is enough money set aside right now in the fund to pay for the retirements of every public employee in the system as well as their beneficiaries and still have a billion or two left over when all is said and done. Of course, we all know that the funding level varies like the weather in response to the workings of the stock market. But the claim that the reforms of 2003 are "doing the trick" are as bogus as a $3 dollar bill. A look at the historical funding levels dispels any claim that Oregon's system was ever in trouble. While the rightwing nutcases along with a couple of democratic nutcases - the Governor and Representative Macpherson - were running around claiming the sky is falling, the worst Oregon was ever funded was in 2002, and its funding level, according to PEW, was at 92%. If you recall the 2003 Legislature, the claims were that Oregon was below 80% and falling like a rock. On this basis, the Legislature argued that it was necessary to reform PERS off the backs of the working stiffs and recent retirees. Consequently, we all took a substantial hit from the legislative reforms and as a result of the reforms, at least 18 lawsuits were filed. Eight of them were consolidated into a single case, the "Strunk". There are several federal cases, as well as cases still pending - Arken, Robinson, Robertson, White, Bell, and several more that haven't reached the filing stage. All this litigation is costly, and PERS hasn't won a single case, although they are acting as though they've completed a trifecta and a slam dunk, while billing retirees for benefits presumed (by PERS) to be paid, "in error". They've been rebuked by the court, they've been slapped with an injunction, and PERS continues to skate over the edges of these and interpret things in a light most favorable to them. They have very expensive outside counsel, whose knowledge of public pension law is, at best, questionable. In fact, a brief look at the Orrick website tells any reader that they don't even have anyone in their firm in "public" or "private" pension law.

So here we are, approaching 5 years after the Legislature's trashing of PERS, and we come to find out that all the numbers that were presented to the Legislature were just plain made up. The real numbers, cited by PEW in its study, make it clear that Oregon was, and continues to be, one of the best public pension systems in the country. If the true numbers had been made public, the level of changes to PERS could have been small, relatively uncontroversial and almost assuredly without all the litigation, uncertainty, and anger that prevails among members, retirees, unions, attorneys, the media, and the public. It took a completely outside agency with absolutely NO agenda to get to the truth. Oregon's system was never broken, and it could have been made more efficient with a few minor changes. But the rightwing wingnuts and some gullible Democrats wanted to "make their bones" off of a gigantic lie. May they now drown in their lies. Ted only has a few years left in his term and he can't run for re-election, and Greg Macpherson has some credible opposition for his run at the Oregon Attorney General's position. He is one politician that I can't wait to see gone. We have the truth now. It speaks louder than any campaign "sound bite". Let's send Greg Macpherson back to his private law practice for good. We don't need politicians who build their reputations on an outright lie.

Sunday, December 16, 2007


This one is for Cantor Kantor. Happy Hannukah and may your festival of lights bring us light in the form of a decision this week. I realize that as I light my own candles that this is one wish that only you, not a higher being can bring. So bring it on.

Saturday, December 15, 2007

Behind With The Rent

Got my notice today that PERS is "considering" my appeal. They were kind enough to acknowledge my challenge of their recalculations of my benefit. I used everything I could think of in my challenge, but I sincerely doubt they will find anything original, nuanced, or even clever about my approach. I figure that they'll either turn me down or Judge Kantor will issue his ruling before they get a chance. That way, there will be no doubt about how they will proceed. Either they'll fall further behind with the rent of my money, or I'll continue to fall further behind. Somehow, this whole process leaves me with a bitter taste in my mouth. I subjugate myself for 32 years to the company store, accepting lower pay for that elusive promise of a good retirement plan and then at the end, when all of us boomers hired in the late 60's and early 70's start to retire, they say, "oops, just kidding about that retirement. We don't have the money so you'll have to suck it up." Fortunately, I didn't get my nickname for no reason. If they think I'll just take their bullshit and go away, they haven't worked closely with me. My former boss used to hate seeing me coming because he knew that I had a congenital inability to accept "no" for an answer and he knew that my request would be well-formulated, reasoned carefully, and did not promise anything more than what would be delivered. I always got my way - except on salary issues that were constrained by union and OUS guidelines. I do not intend to go quietly into this night. So PERS, if you're listening, just remember that you'll never get the chance to say that we'll not have Fearless to kick around anymore. That will happen only when I take my last breath and my personal fitness trainer tells me that my work with him will add quite a few years to my life. So I'll be around to hector, pester, and ask all those annoying questions until I get what is owed me. I got the time, I got the patience, and a mean streak that usually makes people afraid, very afraid. So, I'm looking forward to doing business with you for many, many years to come.

Friday, December 07, 2007

Late Night Shopping

While we're waiting for Santa and doing our last minute shopping, we've discovered a hole in our document library that we'd like to fill. We've heard stories of people appealing PERS' recalculation notices, but we've not heard about PERS' final responses to the same. We've decided to collect copies of appeal letters (not yours, PERS' response letters turning you down). If you have one to share, we'd like to post it (appropriate redacted of all identifying information). You can send a copy to me back channel, you can contact me back channel for a FAX number, or you can email an electronic copy to info@oregonpers.info. Be assured that nothing you send will ever be posted with identifying information. What we're doing is trying to see whether PERS is actually reading these appeals, or whether they are simply categorizing them and then sending a form letter response denying the appeal. I've appealed and will post my response when PERS finally gets back to me. If ANYONE wins an appeal, please let me know. Either dinner in person will accompany my response, or there will be a gift card for a restaurant local to you forthcoming. Keep me informed people. I'm off to do a bit of late night shopping on the net.

Thursday, December 06, 2007

Live Out the String

Don't expect a decision from Judge Kantor in the Arken/Robinson cases before sometime in 2008. Unfortunately, Judge Kantor seems to have drawn the short straw again and has been assigned the Criminal Docket for the remainder of 2007. Apparently this started not long after he had the status conference. My worry is that he will continue in that capacity into early 2008, thus delaying the decision even longer and letting PERS have free rein over my retirement benefits for even longer. They are definitely living out the string. I can only hope that when Judge Kantor finally gets time to write and to issue his ruling that it smacks PERS so hard that their collective heads are coming out their collective arses. Growl.

Wednesday, December 05, 2007

Here it Goes

PERS should get my appeal today. I dropped it off at the post office yesterday. I waited 54 days before filing it, hoping that it would be smack in the middle of the pile about the time Judge Kantor issues his final rulings in the Arken and Robinson cases. I based my appeal on the Supreme Court's ruling in the Strunk case, concluding that PERS had no legal authority to do what it did and that, instead, PERS owed me a considerable amount of money. I used my own calculator (see left) to estimate the amounts of error and adjustments in my favor. I doubt that this will sway PERS. I'm just perplexed about the system for appeals. PERS gets to rule on the wisdom of its own wisdom. It follows that if they didn't think they were right, they wouldn't have sent out the letters in the first place. I'm not sure how one is supposed to get a fair, impartial, and unbiased review of the facts of the cases. Indeed, PERS has never been known to be fair and impartial in contested cases. I've been attending Board meetings on and off for more than 15 years. Not once during an open meeting did the PERS Board ever overrule the staff recommendations, and not once has the staff ever recommended in favor of the appellant. This does not mean that there aren't cases where PERS has ruled against itself, but I'm not aware of them. Thus, I doubt that we'll see even the smallest victory in any of these pro forma appeals. The only reasons for filing them - and I encourage everyone to do so - is to protest the way PERS has treated retirees, and to clog up their system. (Of course, if they don't bother to read the appeals and just rubber stamp reject them, then it won't do much in the clogging department either.)

There is nary a peep from Judge Kantor about when his ruling in these cases might be forthcoming. If he doesn't issue them within the next 10 - 14 days, it won't be until after January 1 before the rulings come out. And, frankly, if that happens, I wouldn't even hazard a guess when he might actually rule. I had heard that he was slow, but he's rapidly redefining that word for me. Look to the left at my counter and you'll see how many days, hours, minutes, and seconds it has been (real time) since Judge Kantor had the status conference to clarify his ruling.

Sunday, December 02, 2007

Turn, Turn, Turn

My posts here are not usually personal. This weekend I celebrated my 60th birthday. My birthday present was a visit from all my children and my granddaughter. At dinner last night, the entire crew enjoyed a meal at one of Portland's nicest restaurants. I am very proud to share with you the entire Fearless clan - the only time I will digress from my routine to report on PERS-related news. I took a vacation this weekend and these are the 8 reasons why:

P.S. The two handsome guys in the top row are the "outlaws". The girls are mine, with the granddaughter being the one in the middle of the top row. The rest are either my daughters or my wife. Forgive me if I beam a bit at this group. I love them all dearly and they are all the source of incredible pride and joy.