The Next Voice You Hear

Won't be mine. Check this blog out for some interesting, if difficult-to-read, arguments about the PERS Board, the Attorney General, the Governor, the "settlement" and the issuance of "Pension Obligation Bonds". If nothing else, it will get your head to spinning a bit - ghostbuster's style.

http://pdxnag.com/drupal/node/745

If that one gets the juices flowing, then check out some of PDXNag's earlier entries (right side of blog).

If you're still looking for interesting reading, Greg Hartman filed a motion today with the Oregon Supreme Court asking it to clarify its "City of Eugene appeal" mooting decision. Specifically, Hartman is asking the SC to "vacate" the City of Eugene decision. You can find more here

Back to vacation. More posts later.

Thick as Thieves

Mark this day on your calendar – September 23, 2005. This is the day the band of thieves known as the PERS Board holds the meeting at which they’ll try to complete the gang rape of PERS retirees. Sorry if the crass language offends, but I have no other words to describe what this loathsome group is doing. There is NOTHING in Judge Lipscomb’s decision that authorizes them to come after retirees after they’ve retired, there is nothing in the Strunk decision that authorizes them to come after retirees after they’ve retired, there is nothing in the City of Eugene appeal that authorizes the PERS Board to come after retirees after they’ve retired, and, and, and, and, there is nothing in the settlement itself that directs them to come after retirees after they’ve retired. Nothing, nada, zilch. They can’t connect the dots. But they’re gonna do it anyway and the only way they’ll be stopped is by further legal action. These people don’t respond to reason, rational discussion, or impassioned speech. They seem to have an unlimited appetite (and near infinite member resources) to continue to defend lawsuit after lawsuit.

If you want to fight this battle, donate to the OPRI Legal Defense Fund. You don’t need to be a member of OPRI (but it only costs $5 annually, $50 for life) to contribute to the fund, but it’s your money we’re all fighting for. If you have any doubt about what’s at stake, use the Calculator I’ve written to determine what your “hit” will be. You can download a copy by clicking on the top link at the left. (Read the instructions first, please). In the meantime, donate now, and donate often to the OPRI Legal Defense Fund:

OPRLF
P.O. Box 7325
Salem, OR 97303-0065

This will be my last post for about a week. I’m going on vacation to recharge the batteries and reenergize for the next battle. I’ll be back.

Do It Again

Interesting discussion involving Spake and DIH2 over at the OPDG corral. Spake wants a “do over” and DIH2 is making some interesting noises about the “finality” of the new PERS 1999 rate order. When someone takes a PERS retirement, he/she gets a “Notice of Entitlement” (henceforth NOE). This NOE details the calculation method that “wins” for you and lays out precisely what your initial benefit will be. Once the NOE is issued, a member has 60 days from the first check to rescind the retirement or change to a different payment option. Also once the NOE is issue, the member has 240 days to contest the calculation of the initial benefit. This is spelled out in the Oregon Revised Statutes under ORS 238.450. If one contests the NOE, it automatically extends the “change your mind” window by 30 days beyond the final decision in the contest. This effectively means that it could be quite awhile before a member has to finalize the retirement decision IF the member believes there has been an error in computing the initial benefit.

With this as background, consider that all of us who retired since 3/1/2000 up to about 6 months ago have already received our Notice of Entitlement and have had the opportunity to contest the calculation of the initial benefit. But – and this is really important – our NOE’s were based on PERS’ account balance calculations that included the 20% regular earnings for 1999. In 2004, the Public Employee’s Retirement Board entered into a “settlement agreement” with a group of 8 litigating public employers to CHANGE the 1999 regular earnings credit order from 20% to 11.33%. And as a result of the Supreme Court’s NON decision in the City of Eugene appeal, the PERS Board intends to implement the revision of the 1999 earnings crediting order and try to recover overpayments from retirees (and from active members as well). In effect, the PERS Board gets to “do over” the 1999 earnings crediting decision and completely change account balances and initial retirement benefits for anyone who ever had an account in 1999 and did not retire before 4/1/00. So, following this logic out, if PERS gets the opportunity for a “do over”, do members, who retired based on information PERS now claims was erroneous, also get the opportunity for a “do over”? In short, does the revised earnings credit order necessarily require PERS to issue NEW Notices of Entitlement based on the “corrected” information? And if so, does this then result in members getting a new 240 day clock for contesting the benefit calculation, and a new 60-day window to rescind the retirement decision altogether and return to work? Now if you were an employer and wanted something to worry about, THAT would be worrisome. Imagine somewhere between 29,000 and 47,000 post 3/1/00 retirees deciding to return to the jobs they retired from? Talk about havoc? Talk about a delicious irony. Let’s “do it again”.

The Call Up

Yesterday I attended the OPRI (Oregon PERS Retirees Inc) Board meeting in Salem. I was a guest of a Board member. Obviously the reason I attended was to get a sense of what OPRI might be planning to do in response to the Oregon Supreme Court's (non) ruling in the City of Eugene case, the OPRI victory in Strunk/Sartain, and PERB's plans to begin implementing the City of Eugene Settlement soon. OPRI heard from its chief lobbyist, Bill Linden, who had met earlier with several of the key attorneys in the litigation. At the present time, he advised OPRI to wait at least 10 days before committing to any of 3 possible actions: 1) do nothing; 2) get involved with the PERS Coalition if the retiree's case can be amended onto the extant White case in Multnomah County, or in any new litigation specifically involving retirees; or 3) pursue an independent legal challenge. The PERS Coalition is studying and researching all possible approaches and plans to make recommendations within the next 10 days or so. In the meantime, OPRI is open to the possibility of further independent litigation, but it was clear to me that it needed some serious financial committment from post-3/1/00 retirees to make this decision easier for the OPRI Board to sign onto. There are somewhere between 29,000 and 47,000 retirees affected by the legal decisions and settlement agreement. Comparatively few of those have either (a) joined OPRI itself or (b) contributed to its legal defense fund.

Whether you are an active PERS members or affected retiree, what OPRI decides to do is (or should be) significant to you. For retirees, the reason is obvious. For actives, the reason may not be so evident. Today's actives are tomorrow's retirees. Any action that OPRI wins on behalf of retirees closes a door for future legislatures to try to take something away from your benefit.

So, I urge active PERS members and most especially post-3/1/00 retirees to join OPRI - dues are only $5 per year ($50 lifetime) and to contribute to OPRI's Legal Defense Fund. Addresses below:

Membership (checks made out to):

OPRI
P.O. Box 7325
Salem, OR 97303-0065

Legal defense fund ( separate checks made out to):

OPRLF
P.O. Box 7325
Salem, OR 97303-0065

If you really want to show your support, join and donate as soon as possible. Make the Board's job easier for them. This is the one place where cash and committment talks.

Also discussed at yesterday's Board meeting is a new direction for the OPRI website. A web-savvy PERS retiree and OPRI member (not me) volunteered to redesign the web site, modernize it, and will be exploring ways to make it possible to search the web site and, hopefully, for potential and current members to be able to join, renew memberships, and to contribute to various funds online. Look for a newly designed OPRI website sometime in mid- to late-September. The entire feature set may not be in place when the new website goes live, but the goal of making it possible to do these things is now established.

Friend of the Devil

Well, it's semi-official now. Governor K has announced plans to seek a second term. I wonder who Governor K expects to support him? He's not exactly loved by organized labor these days. His unwillingness to participate in any meaningful discussion of school funding has left the blue voters in Multnomah County and elsewhere in Lane and Marion counties pretty out in the cold. So who's gonna vote for Ted?

Perhaps now would be the time for Gov K to show some of that "leadership" and "behind the scenes" skill that got him to the Governor's manse in the first place. A nice way to go would be for him to intervene in the current PERS flap and get his own Board (renegades aren't they?) to back off of PERS retirees and honor his own campaign promise to NOT reduce the current benefits of any PERS retiree, and then also to honor the Supreme Court's Strunk ruling.

Can we expect Ted to show any leadership right now? Or can we expect Ted to crawl into a deeper hole and hide out till the dust settles. Interesting dilemma, isn't it? I can predict one thing. If Ted doesn't intervene in the PERS flap and nature is allowed to take its course, Ted may be body-slammed in the May primaries, because I don't know very many retirees who'd support Ted in the Democratic primary. I already know quite a few Republicans who'd change their party registration just to vote against Ted in the primary. So, regardless of how awful the Republican opponents might be for PERS members, Ted is sitting in the PERS catbird seat as public enemy number 1. Whatcha gonna do Gov?

The Big Payback

David Crosley of PERS recently emailed me to respond to a series of pointed questions I asked him about the methods and process PERS will use in attempting recovery from "window" retirees. David indicated that much of his response will be posted on the PERS website real soon now, so I will try to paraphrase what he told me.

David asserts that the planning document and report on Strunk (from March and April 2005) Board meetings was a project associated with implementing the recrediting of 1999 earnings. At the time, PERS estimated it would take 6 - 8 months to reprogram the system for the recrediting. Now that they have done the necessary preparation, the recrediting of accounts will take place in the fall (of 2005).

As for recovering overpayments from "window retirees", David claims that no decision on whether, how, or to what extent this should take place has been made. This is a Board policy decision that will follow from PERS staff recommendations (or not) at the September 23, 2005 Board meeting. Again, according to David, the staff gets no input from the Board before putting together the range of options and recommendations. Staff analyzes the various statutes, legal decisions, and administrative rules, and makes a series of recommendations of possible approaches for the Board to consider. The Board makes all final decisions and directs PERS staff.

The most confusing part of David's response has to do with the restoration of individual COLAs. David writes that the Court found the COLA freeze to be unlawful, but that the Court also found that retired members will owe money back to the system for overpaid benefits (where, exactly did the court rule this David?). David goes on to report that an element of the staff recommendation will be to use the COLA payments to partially compensate PERS for the money retirees owe. It is here that logic eludes me, because I'm not understanding exactly how this would work. Since PERS explicitly has given examples of both lowered benefits and invoices, and the Court has state clearly: 'more specifically, does the "fixed" service retirement allowance represent payment of an "allowance" that the member was not 'entitled to receive?; The answer to that question is no." So if the "fixed allowance" (as of 7/1/03 or date of retirement, whichever was later) is something that retirees are "entitled to receive", then lowering the benefit to below what the "fixed allowance" is right now doesn't seem to be a legal option for PERS. And if that is true, the only way I can envision PERS going after the "overpayments" is not to go after what has already been paid out, but rather to go after the entire 1999 overcredit plus interest, less owed COLAS. This is an entirely different "kettle of fish" than described in the March 29,2005 "plan".

In any case, expect something along these lines from PERS soon, but it surely won't describe the "big payback".

P.S. More information is now available here at the PERS website. I don't find it very helpful, but at least it confirms that PERS has more than just "ideas" about what they plan to do. And, Board approval or not, the examples illustrate the method that PERS staff is obviously going to propose. The Lipscomb calculator (see left for link) should give a pretty good indication of the impacts to "window" retirees. It isn't designed for other retirees.

Toxic

A single question dominates my mailbox these days. What are the tax consequences of repaying PERS with a single or a small number of payments in a tax year? We've already paid taxes on the money we could be asked to repay. How do we recover the taxes we paid? As you all know, I'm not a CPA, not an accountant, and still use Turbo Tax to file my own tax returns. But I did ask the question to a CPA group to which I subscribe. One answer, which makes some degree of sense, is posted below. Needless to say, if you have a large bill, you're in for some toxic tax shock to add to the outrage of having to repay the money. What follows is NOT my writing.

"If you have to return money that you received in a prior tax year that you reported as taxable income then you have a "repayment" for which there is a defined set of rules. The IRS explains the rules starting on page 31 of IRS Pub 525.

In your case, as the repayment is in excess of $3000 you may either deduct the repayment as a Misc. Itemized Deduction Not Subject to the 2% AGI limitation (Line 27 of Schedule A) or you may compute a tax credit. The credit is a what-if computation. No amending of prior year tax returns is performed. You go back to the prior years and recompute your tax bill as if you had never received the income. You then find the difference between your actual tax bill for the prior years and the refigured tax bill. That becomes the credit. You subtract the credit from your current year taxes figured without any deduction for the repayment. You would select whichever method (deduction or credit) provides the lowest tax in the current year."

Doesn't this sound like a ton of fun?

Fixing a Hole

Or filling a need. At several people's request, I have provided a Mac version of my Lipscomb Calculator. See link at left under Lipscomb Calculator. The Mac version is at the very bottom of the page. I have no idea whether it works, and no way to test it. The person who compiled it for me claims it works fine. I'll have to take his word for it until I hear otherwise or get separate confirmation. I don't have a Mac and I don't even know the way you might run it. I can tell you that you will probably need to run it in the Mac equivalent of an X11 terminal window (not's not inside the nice pretty GUI the Mac has). But from there you're out of luck with advice from me. Give it a whirl. Report back to me. If someone who's Mac savvy gets it to run, could you write up some simple instructions and send them on to me to share with others. Good luck.

P.S. I've still heard nothing from PERS about the computational methodology and don't have full example data for the press release data.

P.P.S Thanks to Dick Koch of University of Oregon for making the Lipscomb calculator a bit more download friendly. Dick converted the file here (which works fine, btw) to a dmg file. When users click the link and download the Mac version, it will deposit itself on the Mac desktop, where it will either open in a browser window, or if the user double-clicks the desktop icon, it will open a terminal window and run the program. Thanks again Dick.

Old Habits Die Hard

And media distortion continues unabated. The Supreme Court's ruling last Thursday continues to challenge the integrity and intellect of the media's editorial writers, feature writers, and headline writers. Across the state were headlines boasting that the Oregon Supreme Court had ruled that "retirees must now pay for past PERS Board mistakes." I find myself shaking my head asking whether any of these writers read a single word of the Court's decision. The Court said NO SUCH THING. The Court ruling that the appeal of the City of Eugene case was "moot" - there wasn't anything to rule on. The effect of that decision WAS NOT to require PERS to collect from retirees. The Strunk/Sartain decision back in March had already obligated PERS to restore COLAs to retirees on their fixed benefits. PERS has refused to implement that decision. The much-discussed "settlement", which is the subject of another lawsuit, contains no direct reference to retirees. Nevertheless, the Supreme Court's recent (non) decision merely emboldens PERS to TRY to collect from retirees. The Court didn't rule that it must or that it could, and new legal action will probably be necessary to point this significant fact out to the PERS Board. Moreover, Judge Lipscomb himself recommended that PERS NOT try to collect from retirees.

If that distortion weren't bad enough, the editorials in yesterday's Salem Statesman Journal, and today's Oregonian hit new lows. Both offer smarmily sympathetic views of the retirees' plight, but then essentially say, "tough shit". The anti-public employee beat marches on. Time to cancel some subscriptions and stop supporting media and businesses behind this. I'll miss the comics, but I can find those online.

Note: It might also interest the media that the "settlement" is not a "class action". One could assert that it only applies to employees and retirees of the 8 plaintiff employers that settled the suit.

Lawyers, Guns, and Money

Is what we need to get PERS to implement Sartain/Strunk. From the looks and sounds of things so far, PERS appears to be ignoring the Sartain/Strunk ruling in favor of a different interpretation of the "settlement". They don't seem to be moving to restore retiree COLAs on the basis of the "fixed benefit" defined in Strunk, nor do they seem to be planning to return members to the status quo ante as of 7/1/03, as the Court required them to do. By all indications, PERS is going ahead and implementing the "revised benefit" language struck down by the Court in Strunk, in order to tag retirees for benefits that PERS has decided they are not entitled (I don't know this because anyone from PERS has bothered to confirm it, but from the examples PERS distributes to the media more liberally than drug detail men distribute pill samples to doctors). All the examples show retiree reduced benefits and invoices for amounts to be repaid. That isn't supposed to happen under Sartain/Strunk. So, retirees will almost certainly have to take PERS back to court again. This costs money. If you want to help out in this high stakes poker game, please send your donations to OPRI (Oregon PERS Retirees Inc) at: OPRLF, PO Box 7325, Salem, OR 97303-0065. Your money won't be used for guns (I promise), but it will be put to good use for Lawyers seeking lots retirees' money.

Get Up Stand Up

Fighting for your rights (and your money). Strunk said PERS can't withhold COLAs on "fixed benefits". While you're out there demanding a complete and thorough explanation of PERS' implementation plans for the "settlement", you might also demand your COLA for 2003, 2004, and 2005 ON YOUR FIXED BENEFIT, as the Court described in its Strunk ruling. Be persistent. PERS is in contempt of court if they refuse to give you your withheld COLA and the withheld benefits resulting therefrom. Consider appealing their decision. The settlement is a different issue. Insist on clear and informative answers. Don't settle for "we'll get back to you when we know more". PERS knows everything right now. They've had almost 17 months to figure out the settlement and 5 months to deal with Strunk. There's no mystery. Write, phone, email, visit the PERS offices. Make your presence known and felt. There are at least 34,000 retirees affected by Strunk, Lipscomb, and the settlement. That is a powerful force to unleash on one agency at one time. We need to make certain that PERS understands that we will not go gently or quietly into the night.

Burning and Looting

Time to take some advice from Bob Marley. There won't be a lot of happy Oregonians tonight. Just remember how we got here. Just remember all the elected officials who helped pave the way for this outcome. Keep in mind that Ted the Kelvinator insists to Willamette Week (this week) that he does plan to run for re-election.

In the meantime, it is time to stir up some trouble. The "settlement" has been in existence for 15 months now. Strunk has been "law" for 5 months. Back in March, PERS distributed a "plan" for implementing Strunk and Lipscomb that was long on concept, short on detail. There is NO POSSIBLE WAY that PERS does not know how (or if) they plan to implement the "settlement" for retirees. Any argument to the contrary is dissembling and disengenous. People should email PERS officials now and start demanding to know what the plans are (whenever this might occur) for retirees. Active and inactive members know EXACTLY what is going to happen -- no surprises there. But from the beginning, PERS has played it extremely close to the vest about retirees. Well folks. The settlement is no longer theoretical. It is very real for all of us who retired based on promises that existed before Judge Lipscomb ever issued his final judgement (and before the legislation). Our lives can be turned on end. We want to know what PERS' plans are, and we want to know now. We know that there will be no end to the litigation. But we need the certainty of what will happen in the next year, not some abstract event 3 or 4 years from now. Write to PERS. Deluge them with email (see addresses in link to left entitled "PERS email addresses"). Now is NOT the time to be bashful.

A Common Disaster

I just returned from the OEA rally and OEA press conference. Greg Hartman was the principal attraction at both. Hartman expressed disappointment at the Court's ruling in the City of Eugene case. He asserted that their decision to dismiss the case as "moot" was a political decision that evaded having to come to grips with the legal questions raised in the case. In effect, the court "punted" by issuing a non-ruling that allows PERS to implement the "settlement agreement" and codifies into law the 11.33% earnings crediting for 1999. He expects that PERS will adjust active and inactive member account balances for the overcredit and then turn around and credit 8% for 2003 and 2004. The effect on active and inactive members will be more-or-less a "wash" from CURRENT conditions. For retirees, especially "window" retirees, the picture is much more murky. Hartman believes that language in the Strunk opinion protects retirees from "take backs", but isn't certain that PERS necessarily sees things that way. He noted that additional litigation is forthcoming and that more legal claims may be added to the White case, pending in Multnomah County Circuit Court.

In "mooting" the claims, the Court did NOT (contrary to what the City of Portland claims in its emailed "take") rule that the intervenors had no standing. What the court ruled is that there was no "live controversy" to litigate and that there was no remedy the court could provide for issues that had already been decided in Strunk, the Legislation, and the settlement. In short, the Court held that the issues had been settled in other venues. Justice Durham wrote a strongly worded dissent, which was joined by Justice Riggs. They both disagreed with the majority in this case and held that there were controversies to be ruled on and remedies to offer. But, the court's decision (5 - 2) is final and the City of Eugene case (aka Lipscomb) is no more.

It will probably take all parties at least a week to review the decision and to begin to formulate new strategies. In the meantime, the "settlement" is real and is now effective and fully implementable. It just isn't clear how it might apply to retirees, if it applies at all. That will take time to sort out. Until then, feel free to use my "Lipscomb Calculator" (see links at left) to determine what the WORST CASE scenario might be. I'm currently leaving it unchanged - the "best case" remains - until I have a better idea of what PERS plans to do about/to/with retirees.

Time for a long bike ride in some heavy traffic.

P.S. Tim wins again. The "hit counter" crossed 200,000 shortly before 11:00 a.m. today and Time was the one who missed by only 24 hours. When you get home Tim, email me your address so I can send you that next gift card.

Police and Thieves

This as I'm on my way out the door. The Court released Lipscomb early this morning. The decision is stunning in its brevity. In effect, the court has dismissed the PERS Coalition's appeal of Lipscomb as moot because the substantive issues were ruled on in Strunk, the Legislation, and in the Settlement, from which they quote at length. This means that PERS has the go ahead to fully implement the settlement. How and when that will happen is unclear, and more significant who will be affected is unclear. But the take home message is that what Strunk gave, the settlement takes away, and the Lipscomb ruling does nothing to come between those events.

More later.

Signed, Sealed, Delivered

The Oregon Supreme Court will be releasing the City of Eugene (Lipscomb) decision tomorrow (Thursday). No matter how you look at it, the timing cannot be ignored. Further details to come tomorrow after the decision is released. "Slip" opinions are usually posted at 9 a.m. I'll try to post a "peanut" summary as soon as I get a chance to read it. Not being a lawyer puts me at a disadvantage, although the Strunk decision's main points were pretty easy to follow. Check here tomorrow for more details. There may be several different posts to cover the details, depending on their complexity and my (and others') ability to grasp them quickly. Note: (7 p.m.). I will not have access to a computer from about 8 until 11 a.m. Therefore, my post here will be later than usual. Since I have to be out of my house (painters) in the a.m., I'm thinking of wandering over the OEA "event" scheduled in Tigard at 9:30 a.m. Greg Hartman will be there to, I presume, share the Court's opinion with the crowd.

Back to the Island

Is where the Legislature went today. At 6:22 a.m. the gavel came down and the 2005 Legislature sine died. The session contained good news and bad news. The good news is that no really awful or even slightly awful anti-PERS legislation seems to have survived. The bad news is that this Legislature can lay claim to doing almost nothing about anything meaningful as far as I'm concerned. The Legislature's adjournment undoubtedly paves the way for the Supreme Court to issue its ruling in the City of Eugene case. It would be patently and transparently political and obvious if they were to do so next week, so I would be surprised to see a ruling quite that soon. But I think that the wait won't be much longer - before Labor Day would be my prediction. But, as Dennis Miller would say, "that's just my opinion. I could be wrong."

Fins

Fins to the left, fins to the right and you're the only bait around. PERS has finally posted copies of the settlement agreementS, thanks to the collective emails from lots of people spurred by my "Stolen Land" entry from a few days ago. So now, if you want to read both agreements, you can go to the PERS website here.

Tightrope

Yep. Still standing on one. Sharks on one side, the abyss on the other. The end of the tightrope in sight, but still waiting on a Supreme Court ruling. Nothing tomorrow.

Monkey Wash, Donkey Rinse

That's what the entire legal process feels like right now. Seems that the Supreme Court checked the box, "no legal fees", when they issued their Strunk decision. So the various parties that "won" pieces of the decision - the PERS Coalition on the 8% "guarantee, OPRI on the "COLA freeze" (or whatever you want to call it) - were expected to eat their own legal expenses. With 3 defendants and 7 plaintiffs who won something in the case, the legal fees incurred by the 7 plaintiffs were pretty high - $300,000 for OPRI alone. If every plaintiff sued every defendent for legal fees, there'd be 21 legal cases to sort through. Apparently, some kind of legal action is in the wind and many petitions have been filed with the Supreme Court concering fee recovery. The Court will have to rule on those various petitions before anyone collects a dime, if that. The court can say yes, no, reduce the fee requests, or refer the matter to a special Master again to recommend resolution. No one knows yet what it will be. In the meantime, OPRI is trying to raise additional legal funds for their pursuit of legal fees. You can go to www.opri.org for more information.

Everyone is now waiting for the Legislature to finally sine die. Adjournment is rumored to be imminent, perhaps late this week or early next week. My guess is that we'll see the Court's decision in City of Eugene (Lipscomb) shortly thereafter. In the meantime, if you're still befuddled by my "Gaslighting Abbie" post (many were), go to PERS' own web site and peruse their information on the Strunk case. In very plain language, PERS refers to the Court's decision in Strunk as ruling that "suspending COLAs" or "freezing COLAs" is illegal. So, just when you thought you had a thorough grasp of everything, PERS comes along to confuse you more. Sigh. The beat goes on.