Concrete Jungle

I just returned from a vacation in San Diego. To be fair, I lived in San Diego for 18 months from early 1989 until mid-1990. I became extremely familiar with the politics and local issues that were "hot" back then. Imagine my surprise when I returned for a week almost 17 years later and found that the "hot" issues now were exactly the same as they were when I left. The San Diego City Council is still a stinkpot of corruption and panderer to special interests (for Portland residents, this may sound achingly familiar). Despite this, the City Council did manage to figure out a way to corrupt the public employee's pension system (of which the Council is a part). Now, faced with a voter revolt, the newly elected Mayor managed to finesse through two ballot measures for November 2006 that will try to undo some of the pension mess. Although the Mayor and Council negotiated with the labor unions to get them to "buy in" to the ballot measures, the unions refused and expected "labor friendly" city councilmen to support them. Alas, the mayor sandbagged the unions as he already had the votes to put this on the ballot. The measures were referred out by a vote of 6 - 1. Moreover, to rub salt in the unions' faces, neither the Mayor nor the City Council offered any explanation of how these measures would be implemented if they passed. One measure requires that the Council look towards outsourcing *many* of the City jobs (again, not a clue which ones). The second measure would require that voters in the City of San Diego approve ANY changes to the current public employee pension system. This means that added benefits (unlikely) or decreased benefits (highly likely) would be decided by a vote of the people. The council did make one small concession to the unions and active employees. Employees with at least 15 years of public service in the system, or those who are already vested and within 15 years of normal retirement age (60), would be exempt from voter-approved changes. All this would be "news" if the same kind of stuff weren't under discussion in 1989. The more things change, the more they stay the same.

Other non-news. San Diego is still searching for a place to site a new airport. This discussion has been going on since about 1984. They've narrowed the search down to 9 possible locations, at least 4 of which are so preposterous as to not deserve comment. When the Pentagon announced the latest round of Base Closures, the Port Commission in San Diego prayed that either the Mirimar base, or the San Diego Marine Corps recruiting depot would close. Alas, neither did. As it happens, those two sites are the most logical place to relocate or expand the existing airport. The Marine Corps Depot sits immediately adjacent to and North of the current airport. Its size would allow the current airport to remain and build at least two new runways. San Diego is the largest big city airport to have only 1 active runway - and their passenger volume is about 3 million more than PDX.

More non-news. San Diego continues to fill its coffers from overtime parking fines. I'm convinced that overtime parking is the biggest revenue source outside property tax. In 1989, parking past the meter time was a death-penalty offense; now they've dropped the death penalty in favor of a fine that will cost anyone $60 minimum for the first offense, and $120 and "booting" for the second offense. They use collection agencies to recover unpaid parking fines and they don't give a damn whether you're visiting or permanent.

The one astounding fact is that San Diego has grown more than Portland since 1989. In itself, this is no surprise. The surprise is that San Diego's traffic situation has not changed since then. We were able to drive at all times of the day, over dozens of freeways and in all directions and never once encountered a traffic jam that would rival a normal mid-day on any of Portland's freeways. I can't figure out how they've managed that feat of incredible traffic engineering. I do know that CalTrans - the agency responsible for building and maintaining freeways - can lay 5 miles of driveable concrete freeway in a day, once all the preparations are done. In Oregon, we have Highway 26 (the Sunset Highway), which has been under construction since about 1974 and shows no sign of completion. Were it in California, the Sunset would have been widened, repaved, widened again, and repaved multiple times and would be 8 lines by now.

Oh well, in the absense of any significant PERS news this week, I thought I'd share these thoughts on how things are elsewhere in the concrete jungle of California. The PERS Board meets today, but I'm not in any condition to go -- too much unpacking and bill paying to escape. Hopefully, one of my friends will send me a shout out about what happened so I can post it here over the weekend.

Nobody's Home

That's gonna be my story for the next week. We're gonna spend a week in the sun (we hope) and get away from the insanity that has overtaken Oregon. I'm not expecting to update this blog until I return on March 30.

The Ghost of Tom Joad

May be visiting a lot more than just "window retirees". I've had a peek at some of the "actuarial reduction factors" that Mercer developed for PERS to implement the Strunk/Eugene decisions. Recall that under these decisions, PERS alleges that the benefit "window retirees" have been receiving (heretofore, the "fixed" benefit) has been too high since they retired. The reason, according to PERS, is that the 1999 earnings crediting decision of 20% was challenged by employers and vacated by Judge Lipscomb. As a result of PERS "settlement agreement", the PERS Board changed the 1999 earnings rate to 11.33% and agreed to recover the excess payments from "window retirees". HB 2003 (2003 legislature) contained a provision that would have recovered these payments from "window retirees" by withholding the COLA on the "fixed" benefit, until such time as the "revised benefit" (which included a COLA) overtook the "fixed" benefit. The Supreme Court, in its Strunk decision, ruled that neither the legislature nor PERS had the authority to violate a contract by paying a retirement benefit (the "fixed") to which no COLA attached. The "settlement" anticipated this and basically ordered PERS to recover the "overpayment" by regular mechanisms spelled out in ORS 238.715. PERS, realizing the financial hardship this could cause many "window retirees", came up with a "kinder and gentler" way to recover from "window retirees" and has offered this method (the "actuarial reduction" method) as a way to minimize the hurt on "window retirees" while still recovering the money owed over the remainder of a retiree (and beneficiary) life expectancy. This was spelled out in the "Notice of Board Order" that PERS sent to "window retirees" about a week and a half ago (see previous entries for more discussion).

Without getting into a discussion about "actuarial recovery", I do want to talk about the "factors" that PERS plans on using to compute the monthly reduction of benefits due to this "actuarial recovery". For me, these tables are more than an academic interest. I've been preparing a "calculator" that will help retirees figure more closely what their net benefits will be after such a reduction scheme. The calculator works in two stages - first it figures out what the "revised" benefit would be as of a date certain (now 9/1/07) and how that benefit is smaller than or greater than the current "fixed" benefit. This stage also determines the extent to which the member has been allegedly overpaid and computes the invoice amount due PERS. The second stage is to determine how the invoiced amount will be repaid over one's actuarial lifetime according to the retirement Option (i.e. 0, 1, 2, 2A, 3, 3A, 4) selected at retirement. Here is where the TABLES come in handy. Without them, there is no way to determine with any precision, how much any specific PERS window retiree will be affected by the actuarial reduction method.

At my request, PERS has provided me with the Actuarial Recovery Factors for the Strunk/Eugene implementation. I now have the tables for Option 1, Option 2, and Option 3 retirements, but do not yet have the tables for Option 0, Option 2A, Option 3A, or Option 4. In perusing these tables, I was struck by the expected mortality implied by the recovery "factors". In one instance, for example, an Option 1 benefit for a 15 year old (not sure how that works, but the factor is there) translates into a life expectancy of 147 additional years - to age 162!!!!! In another case - my own - my wife's and my joint life expectancy work out to be that PERS thinks that it will be paying us a revenue stream until the last of us reaches about 103 years old. As I considered this, I began to have all sorts of good and evil thoughts. The good thoughts were that for "window retirees" the repayment schedule is considerably longer than any of us had imagined and that, for most "window retirees", the worry about overpaying beyond actuarial life expectancy is probably a moot point. But then my mind began to wander to not-yet-retired PERS members (Tier 1 & Tier 2). If this was Mercer's first salvo into the mortality factor arena, could this be a harbinger of more evil deeds to come as the actuarial tables are revised every two years. Could this portend a lowering of benefits for future retirees by using much more "generous" life expectancy tables? To be fair, I wrote of my concerns to Paul Cleary and to David Crosley, Executive Director and Communications Director, respectively, of PERS. David wrote back to assure me that the "actuarial reduction factors" were nothing more than the 2003 (Milliman) mortality tables adjusted (by Mercer) to reflect the 2% cola over the retiree's life expectancy. This results in a longer repayment period. He also disabused me of any suggestion that Mercer uses any different methodology for mortality factors than did Milliman, and while the 2007 mortality tables may change, the change will be based on experience data as they have in the past.

So, at this point I'm satisfied with the explanations offered. There appears to be nothing sinister going on and current (non-retired) PERS members don't have anything NEW to worry about. I truly had visions of the ghost of Tom Joad when I first encountered these factors. Now all I'm stuck with is trying to figure out whether Audrey Raines is just another example of poor personnel screening by the US Government or whether she turned bad after she was hired. (hint: if you don't watch '24', you won't have a clue what I'm talking about here. If you don't, what's wrong with you?).

Private Investigations

In yesterday's post "Purple Haze" I gave examples of PERS retirees who got (or didn't get) the "letter" when, according to PERS' own listed criteria, they shouldn't have received them. Oregon AFSCME is particularly interested in hearing directly from retirees who retired BEFORE April 1, 2000, did NOT receive a lump sum settlement, and who received a "Notice of Board Action" late last week or early next week. If you meet all these criteria, please send an email to Mary Botkin (botkin@oregonafscme.com) or Don Loving (dloving@oregonafscme.com) detailing your receipt of this letter. If you received the same "letter" *and* you retired after 4/1/05, you should also notify either Mary or Don.

By the time most read this post, the "hit counter" will have crossed the 300,000 mark -- an amazing feat for a blog in existence for 11 months. Thank you again for your faithful readership, and for your continued communication of your stories to me. While I occasionally get access to public information before it is made public, the most interesting stories right now are those that come from readers.

Purple Haze

Man. I feel like I'm back in the 1960's listening to Jimi Hendrix. My email box is hopping with stories from PERS retirees who received "the letter" late last week or early this week. Besides the usual assortment of people who expected to get this notice, are the ever-increasing numbers of people who have absolutely no idea why they've received them because they meet none of the criteria to have received one. I have emails from four people who retired during 1999 who simply receive a monthly benefit, never had a lump sum settlement of any kind, never had a divorce decree, and simply should not be included in the group of notice receipients. Each of these correspondents describes a similar interaction with PERS. "We have no idea why you received one of these notices. If you wish to appeal the notice, the appeal process is described in the notice and our web site. Thanks for calling PERS". What should we advise these people to do? Hire a lawyer to appeal a notice they shouldn't have received? Get a judge to rule that they aren't included? When PERS loses, do they compensate for legal expenses? Or should these people just "hang loose" and gamble that the next three years will come and go without any further notice? If these people weren't bad enough, then we have the group who've gotten the notices and who've retired after 3/1/05. According to PERS information, these people had their benefits adjusted for both the Strunk and City of Eugene cases before they received their first benefit check. Why in heaven's name would they receive a notice? They seem to get the same canned answer from the PERS Customer Service drones. I've also heard from members who retired under Full Formula and who got one of these notices.

If I were charitable, I'd say this was a computer screw up? Or, in one of my less charitable thoughts, PERS simply picked arbitrary beginning and end dates and had the computer spew out as many of these notices as there were retirees in that particular time frame. Let's do a perp-sweep. Computers make this easy. Of course, computers also make it easy to exclude people, but that would require that the programming be done in something other than a purple haze.

P.S. And speaking of purple hazes, I just got a notice from another retiree whose husband received his "Notice of Board Order" last week (a pure "window retiree") while the spouse, also a retiree from the "window" but under Formula + Annuity did not get a notice as of today's mail delivery.

The Rockafeller Skank

The sleaze just keeps oozing. On Friday, PERS put up new information about the Strunk/City of Eugene process. This was supposed to enlighten us about the significance of the "letter" that some of us received Friday or Saturday (or maybe today or not at all). If you follow all the links on the PERS website carefully they lead you to some interesting information. First, you will learn about *what* you can appeal within the next 60 days as a result of "the letter". According to PERS, the only judicial review you can petition for is one that reviews the "method" of repayment. Excuse me? It strikes me as more than a bit transparent that if you choose to appeal the "method" of repayment outlined in "the letter", that whether you "win" or "lose" will be immaterial (except, perhaps, to your wallet). Because, IF you appeal, it would seem to me that you are acknowledging to PERS that you accept the more fundamental fact that you "owe" something. Why would I appeal the "method" of repayment if I didn't think I owed anything? So, in making a decision whether or not to appeal this letter, be certain that you check with your legal adviser (and believe me you'll need one) to see whether this little "GOTCHA!!" is lurking in the shadows behind your actions. The second interesting "factoid" to be gleaned from the PERS posting is the more detailed timeline for benefit adjustments. If you're like me, when you retired, you transferred whatever variable balance you had to fixed and were done with it. Well, if that's the case, sayonara to any COLA on any benefit before summer 2007. That looks to me like the point at which the "window" retirees would see any changes to their current benefit.

In related news, many have reported to me that PERS customer service was without a clue on how to handle the myriad of questions that landed on them today. My favorite question: "when does the 60-day appeal period begin" Answer: when you get your "invoice". At least a dozen people reported that one to me. Push the fool button and dump those Customer Service reps and the people who trained right into the dunk tank. No mercy here.

I'm sure there'll be more entertaining news as the week moves on. PERS seems to thrive on ways to infuriate, anger, and plain piss-off the people whose money they are supposed to be managing "in trust". Smell something unwholesome? Don't worry, it's just the skank emanating out of Tigard and Salem.

P.S. And true to my prediction on Friday, at least 4 people emailed me to tell me that they had not recognized the "mail" sent to them by PERS as anything meaningful, and so recycled the letters. Several successfully extracted the "letter" from the trash. At least two report that their recycling had been picked up and the letters were gone. Very small sample, but not a really good scorecard for PERS' method of making the letter scream "OPEN ME NOW".

The Letter

I guess I won't be able to argue that I never received the "letter" from PERS. You can see what the whole shebang looks like here. After you've had a chance to look it over (in case you're feeling left out 'cause you didn't get your own today), please note several things: 1) the envelope. I can't say I was overwhelmed by the "notification" on the envelope. For all I knew, it could have been a notice for a Board meeting and simply tossed. The name printed on the envelope is not the same as the way my PERS benefit checks are made out (missing my middle initial). The postage rate smacks of bulk rate and might have led me to toss it out on that basis itself. 2) the letter. It isn't personally addressed to anyone. It's truly a form letter without any salutation at all. The text is boilerplate and contains no surprises.

I'm completely baffled that PERS would choose such a half-assed, cheap, and sleazy way to notify recipients of an impending legal action that could cost recipients, in toto, about $800 million in lifetime losses of benefits. This is just so shabby and impersonal. I wanted them to go to the trouble to actual mail ME a letter, addressed to ME, which then could have had the boilerplate. I'd be hard-pressed to understand how a court could consider this an "official", "legal" notification that is required to satisfy a provision of the Oregon Revised Statutes. This has all the earmarks of the slimy marketing tactics used by vendors processing rebates for products. Offer a rebate, require a zillion forms to be filled out, and then send the rebate on a miniature postcard that they hope will get thrown out without reading/cashing. I wonder how many of these "notices" will simply get tossed by the unsuspecting PERS retirees? Ah, PERS - the trustees of MY retirement benefits - not! I do have to give PERS extra-credit points for their "emulate the White House" (*any White House, not necessarily the current one*) approach. Drop the bad news on a Friday and then run like hell for the hills of the weekend. That's high class! They didn't have the organizational backbone to send the letters out on Monday and then brace for the storm that hits for the rest of the week. Well, what you reap, you sow. I hope PERS is prepared to have its phones, its email system, and its offices overwhelmed by 10 a.m. on Monday morning and for at least the rest of the week.

P.S. Legal question of the day: how does sending a form letter (unaddressed on the inside) via bulk mail and a not-very-clearly marked envelope constitute "service" for purposes of ORS 183.484? And, what is the date of "service" - date of the order (Jan 27), date of letter (March 8), date of postmark (March 9), date of receipt (March 10)? And, for extra credit: how can PERS prove that it sent a letter TO ME and that I received it? (Yes, I know that the actual postage meter reads "Presorted First Class" but that misses my larger point above).

P.P.S. Due to overwhelming email responses to "The Letter", no doubt triggered by the receipt of somewhere in the neighborhood of 37,000 of these ?notices? today, I will probably not be able to respond personally to many of your questions and comments. Please continue to send them and I will try to answer them as best I can in future blogs. And for the record, I don't have a clue what I'm going to do, if anything, about this notice. I promise to continue to use this forum as a "bully pulpit" to rage against the machine, but when it comes to enlightened self-interest, I'm just as bewildered as the next person.

Candle in the Wind

AFSCME has some information apropos to my earlier post today "Burn Down the Mission." Mr. Hartman responded to my inquiries, noting that he is not in a position to offer advice to individual members, but suggests that should any recipient of this letter want to appeal it, they would be very wise to consult an attorney of their choosing. At the same time, finding an attorney knowledgeable enough with the intricacies of PERS and the particular laws governing this process will be difficult indeed. Mr. Hartman assures me that while he sees no likelihood of the Arken case NOT being certified as a class action, he also notes that even if it weren't, all window retirees will benefit from the legal outcome of the case.

Burn Down the Mission

The posts of the last several days have provoked many more questions than they seem to have answered. The paramount concern seems to be how "window" retirees should respond to the notification letter they are about to receive sometime this month. For those just tuning in, the notification letter is the official start of PERS' efforts to "recover" the earnings allegedly overcredited by the PERS Board in 2000 for the 1999 earnings year. This letter will notify "window" retirees of the overpayment and provide retirees with a copy of the Board order authorizing PERS to begin recovery proceedings. The letter will not contain any individual details, but is a generic letter describing the process and the timetable. Members will have 60 days to file an appeal to this notice in either Marion County Circuit Court or in the Circuit Court of the County in which they reside. On the face of things, it seems straightfoward -- somewhere between 23,000 and 37,000 "window" retirees flooding the legal system with appeals to their local circuit court. While that may seem to be the logical thing to do, most of us would like some advice on what we ought to do in the face of a pending class action lawsuit challenging PERS' actions in this very matter. At the present time, the lawsuit has been filed and served and is awaiting certification as a class-action. Without class-action certification, it is difficult to see how the Arken case can do anyone except the specific plaintiffs in that case any good. So, in digesting all this information, my readers and I have come up with the following list of possible options/questions. I am attempting to get some guidance from PERS Coalition members and attorneys on these, and will post redacted versions of any responses I get:

• When does the 60-day "clock" begin? January 27th (the date of the PERS Board order authorizing the process to move forward)? The date of the PERS letter? The postmark date of the PERS letter? The receipt date of the letter? And, how come PERS is sending these letters by ordinary first class mail? Shouldn't they be sent via certified mail since the matter is quite time sensitive?
• Should all recipients of the letter automatically appeal to preserve their appeal rights under the law? If so, is there some boilerplate language that could be recommended since few of us are lawyers?
• Should all recipients hang back and wait to see whether the Multnomah County Circuit Court certifies Arken et al v. City of Portland et al as a class action suit before the 60-day window expires? If it does, should we not file separate appeals? If it doesn't, should we file separate appeals?
• Should recipients bombard the PERS Board and PERS senior staff with protests and appeals directly? The OPRI website has a list of the email addresses and phone numbers of all PERS Board members and senior staff for those recipients who'd like to use this approach. Is this a good idea? A practical idea? A prudent idea? What do recipients actually expect to accomplish by this other than to disrupt PERS' day-to-day operations significantly?

There are lots of other questions unrelated to the specifics of the Arken case. Non-window retirees want to know how Mr. Hartman's claims that the revised 1999 earnings is a fait accompli affects their situation. It is clear that the natives are growing very restless and it would be really helpful if potential recipients of this letter contact their representatives on the PERS Coalition (AFSCME, AEEO, OPRI, SEIU, OEA, AOF, AAUP, AFT and others) to start getting some helpful answers. Once that letter arrives, all of us are playing beat the 60-day clock. If we want to avoid everyone trying to burn down the mission at the same time, answers would be most welcomed and helpful.

Have Mercy on the Criminal

Greg Hartman's email, posted yesterday on the AAEO website (and linked to here in yesterday's entry), contains some interesting language, especially pertaining to deployment of the reserves and, more importantly, to the treatment of the "window" retirees in the Arken class action case (note: Hartman incorrectly refers to that case as the 'Akers' case; that is a typo in the email). First, the good news is that the actual deployment of the reserves, while benefitting employers in a positive way, also benefits all other groups of PERS members equally. Initially, the PERS Board was intending to deploy the reserves so as to benefit the employers over the members. The final distribution of the reserves - as shown in the Board's own plan, and reaffirmed by Mr. Hartman - is entirely consistent with the past actions of the Board and follows an equal distribution model. Thus, while the apparent "winners" were the employers, the fact is there are no "losers". The Board has plowed no new ground in this reallocation. Hence, the improper distribution of the reserves - a subject of the White case - is no longer an issue as the Board is no longer attempting to blaze a new financial trail.

The second area is a bit more confusing. In the email, Hartman suggests that the attempt to challenge the PERS Board's revised distribution of 1999 earnings from 20% to 11.33% is, itself, probably a dead legal issue since the Supreme Court in Strunk did not preclude the Board from doing that, nor did they intervene in the appeal of the Lipscomb ruling. But, the Arken case is making a different and more subtle legal argument, which requires careful reading of the actual revised complaint (see later in this entry for the link). The Arken case does not take issue with the recalculation of the 1999 rate order to 11.33%. Instead, it makes the argument that PERS retirees relied on the representations of PERS when they calculated their original benefits (which used the 20% for 1999), and that the members played no part in whatever errors may have been made. Moreover, Hartman argues that the Supreme Court, in its Strunk opinion, clearly ruled that the Legislature trumped the PERS Board in legislating that the statutes clearly define a "fixed benefit" that cannot be said to transfer to retirees with errors (i.e. there is no basis to argue that PERS made an error in calculating the original benefit). The Strunk court also concluded that the Legislature had no statutory or legal authority to define a retirement benefit to which no COLA attached. As a result, the class action argues that PERS violates wage and hour laws in trying to lower a wage (the benefit) because of an error the Supreme Court denies exists, and that PERS violates the Supreme Court ruling in withholding the COLA for 2003, 2004, 2005, and 2006. The class action therefore asks the court for 3 things: 1) award window retirees damages equivalent to the amount of the difference between the revised benefit and the fixed benefit (which we've already been receiving), 2) restore the COLA on the fixed benefit from 2003 forward, and 3) to invalidate the January 27, 2006 PERS Board order that authorizes the PERS staff to begin collection efforts for the "overpaid" benefits (as there are none). There is no question that Hartman believes that the recrediting of 1999 earnings from 20% to 11.33% is a "done deal", but the important point is the "breach of contract" and "promissory estoppel" claims that simply argue that while the Board may have the authority to change the earnings retroactively, they nevertheless made a promise that the Supreme Court says they must honor. So even if they don't "restore" the 20%, they will have to pay "damages" that make up the difference between the 11.33% and 20%. So, a rose by any other name is still a rose.

There are some other tricky details buried in between the lines of the email, particularly when they're viewed in the context of the actual revised complaint. I strongly suggest reading the memo very carefully, but only in the context of the revised complaint.

I doubt that all will agree with my assessment. Some have already seen nothing but bad news in the Hartman email. I confess that I wasn't as enthusiastic about the email as I thought I should be. Nevertheless, with some helpful pointers and useful background chatter, I've come to the conclusion that for "window retirees", there is more good news than bad in the email.

Something Real

Note: 4 pm. Several emailed me to note that the link below was broken. It was then, but now it is fixed. I miscopied the information sent to me. Nothing sinister is going on. Everything should be fine now.

A friend passed on this link to an email from Greg Hartman to one of the member groups in the PERS Coalition. I'm sure it went to other members, but it has not been posted elsewhere yet. This offers, for the first time, the PERS Coalition's more formal views on the deployment of the PERS reserves and attempt to put to rest the employers "poor pitiful pearl, we are in a crisis" argument. The third item should be read and studied carefully as it pertains to all of the "window retirees" who are about to receive the PERS notification of error letter. After I've had a chance to think about this and chat with others "in the know", I *may* post back here with some thoughts. In the meantime, this is the first "real" information I've gotten for awhile. Thanks to the AEEO for posting this.

Know Your Rights

OPRI has some new information/advice for "window retirees" posted on its web site. If you fall into the group of PERS retirees who retired between 4/1/2000 and 4/1/2004, you are a "window retiree" and actions taken by the PERS Board at its January meeting will have a significant impact on you. Spend a few minutes perusing this latest information.