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Friday, January 02, 2015

On The Outside Looking In

Welcome to 2015, goodbye to 2014.  The new year promises to be interesting for PERS retirees.  Hopefully the interest will be positive, not negative.  Early next month the Legislature convenes for its biennial long session, the one where bad things happen to PERS members and retirees.   So far, nothing bad has been proposed, and very few leaves are rustling in the wilderness.  

One thing certain to happen in 2015, probably within the next three months, is the Oregon Supreme Court ruling in the consolidated Moro et al cases, which pits PERS retirees against public employers, the State, and PERS.  At issue is the formulation of the retiree cost-of-living-increase, which changed dramatically under SB 822 and SB 861 during the 2013 regular and special sessions.  Also at issue is the “income tax subsidy” formed from SB 646 (1991) and HB 3349 (1995).  All cases raise the question of whether the legislature can change the terms of a retirement contract after a member has retired.  This raises the larger question of when contract rights to a particular form of a retirement system vest - at system entry, at the time one is fully vested in the retirement system (5 years presently), or at the time of retirement.  Also at issue is whether the Oregon Supreme Court’s ruling in the Strunk et al case in 2005 remains in force, or whether the current court believes the ruling was incorrect.  For one court to overturn a previous court’s ruling is unusual, and is embodied in the expression stare decisis, which means that the previous decision should stand.  In any case, the time frame for the court’s ruling, following previous history, as well as more recent court history, is 4-6 months from the time of oral argument.  The oral arguments in these cases were held in early October, which suggests a ruling anytime between now and mid-March.

With the Legislature convening in early February, the timing of the Court’s decision in Moro could have an impact of the budgeting process for 2015-17.  I believe that the preliminary budgets, both the Governor’s budget and the Chairs’ budget, were built on the expectation that the Court would uphold the cuts to retiree benefits.  If not, Governor Kitzrobber, now on round 4 of his administration, has vowed that no further PERS cuts would come from his office (no one knows what might come from the “first lady’s office”).  The Dems have also generally promised that they will leave PERS alone this session regardless of the Court ruling.  With stronger majorities in both houses of the Legislature, this makes further PERS changes unlikely.  Note, I did not say impossible.  I expect ferocious lobbying from any number of sources, Oregonian, OSBA, OBA, COSA, AOI, whining and sniveling over school budgets if the Court overturns the Legislative changes in 2013.  Thus, depending on the nastiness of the lobbying, the ugliness of public outrage, and any number of other factors, I am going to assume that something will be done in the Legislature to some groups of PERS members - new hires, hires within the last 5 years, unvested members, all members, retirees, active members, inactive members.  One of the strategies the Legislature has learned over the 10 years intervening between 2003 and 2013 is the “divide and conquer”.  So carving up PERS members into more and more discrete groups will lead to more attempts to “pick off” one group at the expense of some other group.  They tried in 2013 to limit their exposure to retirees, until actives realized that anything affecting retirees will eventually affect them.  That is one of the reason that the PERS Coalition engaged so fiercely in this legal battle.

So, keep your browser pointed in this direction.  We remain on the outside looking in, but the more of us start looking, especially with bright flashlights, the more we will illuminate the world that operates as much as possible in the dark.

Here’s hoping for a good year for all PERS members and retirees.  A victory in the court, and no action from the Legislature would meet my definition for a good year.