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Wednesday, May 28, 2008

March of the Pigs

Yesterday's ruling by Multnomah Country Circuit Court Judge Henry Kantor, has left many PERS retirees in despair. While the ruling was hardly uplifting, it wasn't a surprise (at least not to me). If Judge Kantor had wanted to gobsmack PERS for what they admitted they were doing last August 16, I suspect he would have done it right then and there. That he didn't, and that he needed more time to study it, suggested that we wouldn't get a favorable ruling. This, even though I sat through that entire hearing and watched Judge Kantor's facial expressions that suggested he wasn't happy with the wide boys working for PERS. But if there is anything I've learned in my years of sitting in the back benches of courtrooms is that it is impossible to read anything into Judge's expressions, body language, or even their questions.

What exactly did Judge Kantor do to help the pigs out even more than they've already been helped by the actions of a couple of really slimy lawyers? First, and foremost, Judge Kantor ruled unequivocally that PERS could NOT collect the overpayments PERS was wanting to collect in their Strunk/Eugene remediation project. This was the essence of the Robinson case. Judge Kantor ruled that PERS' January 2007 order and its March 2007 "collection notice" were illegal on their face. Period, end of story. PERS cannot collect that large chunk of money by any means. To be clear here, this is only Judge Kantor's ruling. Before this story is over, this ruling will be reviewed by the Oregon Court of Appeals (possibly) and the Oregon Supreme Court (for sure).

The second ruling Judge Kantor made was that the 20% earnings credit for 1999 had never been finalized because it had been appealed in a timely manner, according to the law. Therefore, neither retirees nor members had any right to expect earnings that high, especially following the ruling in the City of Eugene case and its subsequent codification in statute (HB 2003). Thus, while retirement benefits had been calculated on the 20% in some cases, and notices of entitlement went out with that figured into the resulting benefit, PERS had no obligation to continue paying an erroneous benefit. Judge Kantor ruled that "promissory estoppel" did not apply in cases like this; therefore, retirees had no claim against PERS for supplying faulty advice, incorrect information etc. This, to me, was the most disappointing part of the ruling. PERS does not have to give people correct information and they can't be held responsible if what they give is faulty advice. (This has bearing on another case in the pipeline.)

Finally, Judge Kantor ruled that it was perfectly permissible for PERS to adjust retiree benefits, as PERS has been doing, when there has been an error made in the calculation (i.e. the 1999 20% crediting, versus the "correct" amount of 11.33%).

At this point, both Arken and Robinson head to the Oregon Court of Appeals. There has been considerable talk about petitioning the Court of Appeals for a "pass" and moving the entire show onto the Oregon Supreme Court. I'm ambivalent about this. As much as I'd like this whole thing to be over, I'm not sure I'm ready for this to move before the White case has had its day in Court. If Arken/Robinson get their pass to the OSC, I'll be OK with it, but I'd like a ruling on White before the Court hears any more cases.

P.S. Press the Yahoo! button to join our new newsgroup where we can discuss this ruling in as much detail as people want, in near real-time. We're growing by leaps and bounds and the discussion has been really good so far. And it is all about PERS.

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