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Wednesday, May 21, 2008

All Along the Watchtower

There are some really interesting rumors floating around this day after the election. One involves the now defeated and out of work politician Greg Macpherson. Question: how do you keep a politician in the news for two years when said politician has no political position to occupy? Reasonable question. Question 2: What if the politician is a close friend of the Governor and acted as the Governor's "go to" guy during the 2003 Legislature and managed to get much of the PERS reform passed. Corollary: Your guy doesn't have any political cache anymore, but he wants to be your successor (as Governor) in the worst way? How do you keep him in the news and how do you get in the face of the very people you blame for his defeat. Bingo: how about if we appoint Greg Macpherson to the PERS Board to replace one or more of the members who'd like to move on. That's the rumor I'm hearing right now. Its source isn't strong compared to others I have, but this source has earned creds with me. So, those of you right now celebrating Kroger's stunning victory might want to give some thought to what a PERS Board with Greg Macpherson might look like.

Another rumor that has been running around in various forms for about a month now is beginning to gain some traction as I hear it from more and more disconnected sources. This rumor has Judge Kantor effectively delaying issuing his rulings in the Arken and Robinson cases until after he's at least heard the White Case, also scheduled with Judge Kantor for August 4-5, 2008. While this remains in the rumor state, the sources are becoming more and more credible with each repeating. The central element of all three cases is the "settlement agreement" between PERS and the employers. This agreement, signed in early 2004, preceded the Court's Strunk opinion, and effectively applied a "nuclear option" to permit PERS to more-or-less ignore whatever the Supreme Court ruled. And PERS has indeed pretty much ignored the Supreme Court. Arken gets to the question of the COLA freeze on which the Strunk ruled on 3/8/05, while Robinson gets to the section 14b "exclusively remedy" for the Lipscomb (City of Eugene Case) mooted by the Supreme Court in late 2005 and vacated in 2006. The key to all these cases is the "settlement", which the White Case attacks directly. Current thinking is that all roads lead through White and that it would be best to have all three cases end up before the Supreme Court simultaneously. If Kantor delays his Arken/Robinson ruling until after he's ready to issue a ruling in White, he may be able to take care of all three cases together. My own opinion is that if he rules in favor of the PERS Coalition in White, Arken is moot, and the issue settled law; Robinson is somewhat of an anomaly; nevertheless its effect is directly tied to the settlement agreement and it is my non-legal intepretation that a favorable ruling in White, puts Robinson back in play and the defendants on the hook to explain why they didn't apply the legislature's prescribed remedy to deal with the issues arising for retirees as a result of the legislation. I don't envy the wait for anyone, but these cases are moving into their 5 year; I can't get worked up by the possibility of another few month delay.

What do you think of these rumors? True? False? Implausible? Why? Why not?


Ryan said...

Ouch! My brain hurts trying to see all the possibilites!

So what is the bottom line for pre-window, Window and post-window retirees????


texipup said...

Is the PERB a paid position? If so the Macpherson theory works. What happens to Vicki Walker now that she lost her bid for Sec. of State? The wait for the White Case is very plausable based upon the meeting with Cleary the head of PERS and Tom from the PERB on April 1 here in Eugene. Tom said he was called to testify the week before this meeting on the White Case so it all makes since the way you laid it out and the time line.

J Stevenson said...

The only socially redeeming merit to the appointment of Macpherson to the PERS board would be if he was on the Board when its ears are finally pinned back legally for its illegal behavior, inspired by his illegal legislation. Otherwise, his appointment would be obscene.

mrfearless47 said...


PERB is volunteer. All regulars have full-time, flexible jobs. Mac's Stoel Rives gig wouldn't prevent him from serving on the PERB. As for Vicki Walker, I think she returns to the Oregon Senate. I don't think she was up for re-election in this year's cycle, but I'll check for sure. Ted wouldn't appoint her, however. She hasn't been one of his friends like Mac has. That is useful information on Tom being asked to be deposed in White near the end of March (it sounds like).

Thanks for your post.

mrfearless47 said...


Pre-window retirees haven't, to the best of my knowledge, been affected by anything related to either Lipscomb or Strunk or Legislative reform in 2003. Window retirees are at the heart of the Arken and Robinson cases, while White encompasses issues of both Window and post-Window retirees. If White is upheld, the only thing that will be left are the legislative reforms that were upheld by the Supreme Court. The settlement agreement would be thrown out in its entirety if White prevails all the way through its appeal to the Supreme Court. And by tying up White, Arken, and Robinson into a common package, the Supreme Court would have to have one decision, not two or three separate cases. There is a certain parsimony to that, which will appeal to almost everyone on both sides. The only downside is that White is definitely the most complex case of the bunch and so considering how long it has taken to get to trial and how long it has taken to get Arken/Robinson any kind of a verdict, it could be a long time (5 years, possibly) before this whole thing is wrapped up. That would make this the longest PERS verdict in Oregon history - 10 years from 2003 to final verdict. Of course, I've been predicting 2012 as a target without this consideration. I think that this potential development would only add a year to the overall timeline.

yosemitesam said...

How do these cases affect post windo retires? Aren't there cases pending to attemp to overturn the mess we were placed in? Rep. Dennis Richardson from Southern Oregon maintains that PERS requires further cuts.

mrfearless47 said...


There are two cases that affect post-window retirees. The principal one is White, which challenges PERB's fiduciary responsibility in entering into such an agreement that adversely affected retirees. Void the settlement agreement and much of the legislation falls apart. Robinson *may* have something to do with post-window retirees, although it is unclear exactly how. I hope to put together a future post that clarifies these cases a bit more, but I'm waiting until I have a bit more time. It may require one post per case.

Rosalie said...

I retired from Multnomah County Library in June 2003 but delayed filing until I purchased back 2.5 years teaching credits from the '60's (which I believe were never credited to me). So I'm sort of a "window straddler" ? Also, I divorced in June 2007 and filed for an adjustment popup? The judge delayed signing the papers until October and I faxed them from the courthouse. I was promised a retroactive check and instead was told they'd delay calculating my new rate to save money when the annual calculations were made. It was all subsumed into the PERS repayment. I was at the wrong end of the alphabet apparently. When will we get a panel to deal with issues like this? Is there any hope?

Rosalie V. Grafe
Roseburg HS 1964-65
Dufur HS 1965-1967
Multnomah County Library 1973-2003