When I'm Sixty-Four

Is about when the Arken case will be heard. The latest word is that the case has been assigned to Judge Kantor of the Multnomah County Circuit. On May 16, 2006 he scheduled the hearing for Arken et al for May 9, 2008. While one could argue that the basis of the Arken case will not finally affect all the window retirees until sometime after 2007, this insures that *all* "window retirees" will have their benefits adjusted by PERS before Arken is heard. In the meantime, we can wait for the Robinson case to be decided. Lots of speculation about that one. I'd like to be optimistic, but justice delayed is justice denied.

On The Road Again

For the next several months I will be involved in a massive move from our old house to a new house. After living in the same abode for 17 years, the amount of accumulated stuff is just staggering. The move will take place in stages over the month of June and for many periods during the move I will be without internet access until I'm able to set things up at the new house. In addition, once the move is finished, the combination of "moving in" as well as prepping our old house for sale will consume much of July. Finally, we're pretty much taking August off to recover from this ordeal and will spend much of the time at our vacation home in the Bend area. (BTW, we're only moving from Portland to a close-by suburb, not more than about 5 miles from our current location.)

The takehome message is that if you're expecting a regular monologue here, you'd be wrong. I'll try to post as often as needed, but I can't say I'm likely to be as prompt about responding to email. Don't take it personally if I don't answer you immediately.

P.S. (added 5/30). Posting will continue to this blog - I'm not taking the whole summer off from posting as some have misinterpreted. It is just that my posting will probably be limited to significant events rather than the interspersed interesting observations that have no practical bearing on the immediate PERS issues. I hope this clarifies any confusion.

Message in a Bottle

PERS has kindly sent me the "actuarial reduction factors" that will be used in the Strunk/Eugene recovery process. These apply to "window retirees" and serve to represent the repayment factors to be applied to amounts PERS deems to have "overpaid" such retirees. These are *not* mortality factors; instead they combine existing mortality expectations with an assumed 2% COLA on the money being repaid. This has the effect of spreading out the repayment over a longer period of time than mortality tables would suggest but insure that at the expected age of demise (joint or individual), the owed money would be repaid by including the lost interest. It is more complicated, but this method insures that retirees will have less money taken out monthly than they would if PERS simply took the amount owed and divided it by the number of months of single or joint life expectancy remaining. PERS still does not have "actuarial reduction factors" for members who elected "refund" options. Hopefully soon. In the meantime, check back to this post later for a link to the "actuarial recovery factors" I have. I will post them soon.

On an unrelated topic, I have, apparently, overstayed my welcome on Robert Gourley's SEIU retiree's mailing list. Although I never belonged to SEIU or any union (I was unclassified), Robert let me have "guest" status on his list. I had the temerity to suggest that Dawn Morgan did not testify before the Strunk Special Master hearings in a way that favored PERS members (either she wasn't permitted to do so, wasn't asked, or chose not to do so. The reason remains unclear.), Mr. Gourley decided that I no longer deserved "guest" status and he "unsubscribed" me from his list. Strangely, Mr. Gourley continues to cc me on emails related to things I've posted here and elsewhere and so I'm still privy to his various rants about me and other members who post on the Oregon PERS Discussion Group. I want to thank Mr. Gourley for allowing me a window into the inner workings of SEIU politics while I had the opportunity to do so. For me, however, the loss of my occasional email from Mr. Gourley's list spares me from email whose noise to signal ratio was rapidly approaching 100:1.

6:00 pm. Here are the Option 2 & 2A Actuarial Reduction Factors and the Option 3 & 3A Actuarial Reduction Factors. Finally, here are the Option 1 Actuarial Reduction Factors. To use these "factors", you need to determine what you "owe" PERS (my calculator will give you a ballpark figure, but the collection date has changed and the amount you owe will be different. It's a good start though). To use the factors, find the appropriate "factor" in the tables. Then divide what you owe to PERS by this factor and the result is your monthly reduction in benefits or your monthly payback amount. Be sure to use your age and your beneficiary's exact age (in years only) as of 8/31/07. Hope this helps.

Hands Clean

Robert Gourley, of the SEIU retirees chapter, reported that he and others met with Dawn Morgan this morning in Albany (see "Tell Me Why?"). Robert specifically asked Dawn my question about the 1999 Board and the 1999 earnings crediting decision. According to Robert, Dawn said: "I don't remember getting any specific advice about how to distribute the earnings. What we did get advice about was about putting anything into the contingency reserve account. We spent a lot of time trying to figure out whether to put money into this account, and if so, how much. In the end the attorneys advised against funding the account. The PERS statute, which had been in place since near the beginning of the fund, states that the contingency reserve could only be used if the fund was unable to pay benefits. Because the fund is now so large that it is inconceivable that it would be unable to pay benefits, the lawyers said that any money put into the reserve could not be taken out. Interestingly enough, this information was never allowed into the court record. Had it been allowed, I'm confident that Judge Lipscomb would not have found that the Board had breached its fiduciary duty. That would have meant that they couldn't ask for the 1999 earnings back from retirees. Because the new PERS Board was prevented from having any contact with the old Board, they didn't have any way of knowing that this was the case. The settlement that was struck prohibited the information entering the record at the appeal level, too. This should be of interest to anyone trying to understand the Board's actions, or anyway that's what I think. Dawn"

This is very helpful piece of the historical record that has been missing from the discussions up-to-now. Many of us suspected that the Board's actions in crediting the 20% for 1999 was completely within the Board's discretion and that they acted in accordance with legal advice given at the time. Dawn's information indicates that there was virtually no discussion of the earnings crediting rate, but instead a discussion of the need to, or not, fund the contingency reserve. This puts the Board's actions in a slightly different perspective, but also reinforce the claim that there was nothing inappropriate about their actions in 2000. It's nice to see this information out in some form. The state, the employers, and PERS have been working double-overtime to prevent this information from reaching the courts. In so doing, they've permitted a legal travesty. Hopefully, we'll eventually get what we were promised. I'm not holding my breath. Blue is not a good color for me.

Magical Mystery Tour

For PERS members, the Fall elections present some interesting conundrums. As local pundit Jack Bog noted on his blog this morning, "welcome to Neil Goldschmidt's third term as Governor." Jack was referring to the fact that either the Democrat Kulongoski or the Republican Saxton are pretty much creatures of Neil Goldschmidt, and no matter who wins it will simply be another Goldschmidt term. Whatever. What concerns me is that voting this fall will be, for me, a choice between Tweedledum and Dr. Evil. Kulongoski's position on PERS is well-known and hard-felt by any of us in the "favored" group. Saxton's animus toward PERS and PERS members has been just about as in-your-face and public as any politician's position - he is, indeed, the Lars Larson of realpolitik. People will confuse you with Saxton's "moderate" views, but I've heard nothing from Saxton that separates him from Rush Limbaugh. Of course, few PERS retirees can stomach voting for Ted. This leaves, who? Ben Westlund? Pundits are already trying to figure out who Ben Westlund really benefits and hurts. Some say that newly independent Ben is still a Republican in sheep's clothing; hence, a vote for him hurts Saxton. Others point out that union members and PERS retirees - a sizeable group of people - will be hard-pressed to support Kulongoski and so a vote for Westlund helps Saxton. For me, the gubernatorial choice comes down to which weapon I'd like to use to kill myself - a 9 mm Glock or an Uzi. No matter who I end up voting for, I'm gonna hate myself in the morning. Not a comfortable position to be to be sure. More mushrooms please. Time for that magical mystery tour.

Tell Me Why?

Dawn Morgan, former PERS Board Chair, is scheduled to speak about PERS on Thursday May 18, 2006 at 9:30 a.m. at Novak's Restaurant (across from Heritage Mall) in Albany, OR. As I've noted elsewhere, I wouldn't give Ms. Morgan the time of day, but since this is the first time I'm aware of her talking publicly about PERS since she ransacked the PERS membership during her testimony in the Strunk case, I'd be interested in hearing her side of the story. I'd go to Albany myself and ask her in person, but I have other things to do Thursday morning. If any of you go, feel free to ask her MY question: what advice did the AG's office give you in early 2000 before you credited the 20% to Tier 1 PERS member regular accounts? This has been the flash point for a number of legal motions, and the AG's office has always declined to provide this evidence on attorney-client privilege grounds. Since Ms. Morgan seems to be neither attorney nor client, she has no special obligation to keep that information private. I'd be fascinated by her answer, especially if it is what I think it is. So Dawn, tell me why????

Crossroads

I had to miss last Friday's OPRI meeting in Salem. I was partying in California with relatives as my nephew Matt got married. I was especially delighted to see my nephew Adam (Matt's brother) and his new bride. Adam just returned from an 18 month tour of duty in Iraq and a 6 month post combat deployment in Germany. He's now busy training new recruits in Kentucky. (While we're not big fans of the Iraq circus, we're damn proud of Adam's service to his country, and extremely thankful that he returned with both mind and body in tact).

On the PERS front, I'm still trying to get a summary of the OPRI meeting from one of the organizers. I do know that 150 people attended to hear Paul Cleary from PERS speak. In addition attendees heard from Greg Hartman who provided some legal updates on the Arken case (Multnomah County) and the Robertson case (federal case awaiting an en banc hearing in the US 9th Circuit), and from Gene Mechanic, who represents the PERS Coalition in the newly filed Robinson case. Currently, I have no specifics on what either Hartman or Mechanic told the crowd, but Paul Cleary generously provided the complete Powerpoint he gave to the group. It is available for viewing and download at the OPRI website. Worth noting is the very revised timeline for invoicing "window" retirees. It appears that the earliest anyone with a "normal" retirement can expect to see an invoice accompanied by a change in benefits is September 2007, at which point a large number of retirees will experience a benefit increase. The reason for this is that the "revised" benefit will have accumulated enough withheld cost-of-living increases that it will actually exceed the current benefit. Whether net benefits increase at this time depends largely on the amount PERS believes you owe and how long they expect you to live.

Funny How Time Slips Away

Ole Willie was right. Here it is May 8, 2006. At 5 p.m. tonight, the clock runs out on all those "window" retirees who wish to appeal that notice PERS sent them in early March. It only seems like yesterday that I got my "Notice of Board Action" and here I'm out of time to appeal it. Fortunately, the PERS Coalition (including OPRI and AOF - groups to which I belong and contribute) has my back with two different lawsuits filed. These cases are the Arken case (lead attorney, Greg Hartman) and the Robinson case (lead attorney, Gene Mechanic). Both cases have been filed as class actions in Multnomah County. To date, there has been no ruling on class action status. Nevertheless, if you want to help the cause, OPRI represents *all* retirees, regardless of former employer. They have a legal defense fund to which you can contribute. They are also having a general meeting of members and other interested parties on Friday May 12, 2006 in Salem. Wander over to the OPRI web site for more information about the legal defense fund and about Friday's meeting. Alas, I'll be in California attending my nephew's wedding and won't be at the OPRI meeting. But invited speakers include Greg Hartman from the PERS Coalition and Paul Cleary, Executive Director of PERS. It ought to be both informative and enlivening. I highly recommend that those who can get to Salem for this meeting attend.

Several have emailed me about my judge comments in a previous post. There are two interesting statewide judicial races and one interesting local race. The most important statewide race is for the Supreme Court. It pits Jack Roberts, Virginia Lindner, and Gene Hallman against one another for the position vacated by former Chief Justice Wallace Carson. The Oregonian has endorsed Virginia Lindner and she's rumored to be Gov Ted's favorite. Gene Hallman has been widely endorsed by the labor unions involved with the PERS Coalition. To my knowledge, Jack Roberts hasn't any significant endorsements. The second statewide races pits Court of Appeals Justice David Brewer (author of the PERS Special Master's Report used in the Strunk case) in a brutal battle against himself. The only choice there would be a write-in to send a message. Final, the local race drawing the most interest is in Marion County where Judge Paul Lipscomb (yep, that one!) is running against Ross Day. This is a tough race because, in my opinion, the opponent could be worse than the incumbent. The major issue in that race seems to be Measure 37, while PERS has received relatively little notice. Nevertheless...... Finally, keep in mind that all of the current PERS litigation has been filed in Multnomah County, so watching the Multnomah County Circuit court elections might be more than a spectator sport this year. My limited experience in/with the Multnomah County Circuit Court system hasn't given me to strong opinions about any of the judges running for re-election. If others have more information, pass it along.

Here We Go Again

In my haste to post new information on the Robinson case (see yesterday's missive), I forgot one detail of the Robinson complaint. In addition to alleging that PERS effectively has ignored the statutory "exclusive remedy" (section 14b) of HB 2003, the suit also alleges that the "Notification" sent out to "window retirees" on March 8, 2006 does not constitute proper notice under the statute ORS 238.715. I'm no lawyer - and don't pretend to be - but I'm guessing that the court won't be too persuaded by this claim. At worst, the court might find that the notice was incomplete, but PERS would be the first to acknowledge that the recovery provisions of ORS 238.715 aren't complete until the member actually is invoiced. Anyway, to me the strongest argument is the section 14b claim, especially since the Legislature passed HB 2003 with this "exclusive remedy" for the City of Eugene case. That language seems pretty clear and unambiguous to me. Guess we'll let the courts sort that out. [In that regard, let me encourage each of you reading this to think very carefully about the judicial elections on the May primary ballot. In the ongoing battle over PERS, the courts are the arbiters of our fate. Judges do make a huge difference, as we've all learned in the past three years.]

Everything Must Go

Not unexpectedly, PERS was hit with another lawsuit filed today in Multnomah County Circuit Court. This is the class action mentioned in an earlier post and is filed by the PERS Coalition. It alleges that the PERB, in adopting the Board Order of January 27, 2006 and then notifying "window retirees" of their intent to recover "overpayments" in a letter dated May 8, 2006, breached the statutes governing such issues. The suit asks the Court to order PERS to collect the overcredits via the mechanism statutorily adopted by the Oregon Legislature in HB 2003, while enjoining them from any other method. This method, known around among friends as the "14b" rule, is named after the section of House Bill 2003 enacted during the 2003 legislature to provide an "exclusive remedy" in the City of Eugene case (this was before the case was 'settled' and before the Supreme Court mooted the appeal). The attorney of record in this case is Gene Mechanic, another Portland labor lawyer with PERS litigation history. The case will be referred to as the "Robinson" case. It joins the "Arken" case as legal tests of the current PERS Board's authority to go forward with plans to recover from retirees.

This lawsuit could still be followed by several more before May 9th, the official end to the 60-day period surrounding the "official" notification "window retirees" received.

P.S. A copy of the petition is posted on the OPRI website for those interested in reading it. The OPRI site also has exerpted section 14b of the statute enacted by the legislature in 2003 to highlight the area of law addressed by this suit. The Robinson case basically asks the Court to order PERS to charge the expenses of the retirees off to administrative expenses as the court already ruled that the COLA freeze was an improper way to recover the money.