Wanna Be Startin' Something 2008

My last post triggered a fair amount of email. It would be nicer if people would just post comments to the blog, but I know some people don't want all these exchanges to be public. One recurrent question is: to whom do we write to complain about Judge Kantor's extreme slowness in finalizing his Arken/Robinson opinions. In the old days, if a Judge delayed a case too long, he/she could have pay withheld - a modest cattle prod to get someone moving. Today, that no longer seems to be the case what with caseloads being what they are. Nevertheless, Judge Kantor does have two supervisors - the Honorable Dale R. Koch, Presiding Judge Multnomah County Circuit Court, and the Honorable Paul J. De Muniz, Chief Justice of the Oregon Supreme Court. *I* am not planning to engage either Judge Koch or Justice De Muniz, at least not quite yet. I can't stop anyone else from writing to complain, but I'm not going to enable the practice by providing the email addresses of either Judge. Neither Judge is hard to find, but if you want to complain, you're going to have to do the heavy lifting yourself. If you wanna be starting something, you better be prepared to run with the big dogs.

Stand In The Fire

There isn't a PERS retiree I know who isn't waiting impatiently for Judge Henry Kantor of the Multnomah County Circuit Court to issue his long-awaited decision in two PERS-related cases: Arken et al v PERS and Robinson et al v State of Oregon and PERS. These cases were originally heard in 2006. Judge Kantor issued his preliminary findings almost 6 months ago. His order stayed PERS' ability to collect "overpayments", but did not address the question of whether PERS could continue "adjusting" benefits. Absent any explicit prohibition, PERS has been merrily reducing ("adjusting") benefits for Window retirees as part of the Strunk/Eugene remediation. In the meantime, lawyers from the PERS Coalition and others are puzzled and frustrated by Judge Kantor's delay in ruling on the balance of the motions in the trial. At stake is PERS' ability to "adjust" benefits and its necessity to go back and readjust those benefits to levels ordered by the Oregon Supreme Court in its Strunk decision.

I have been at a loss to understand what is holding Judge Kantor up. Today, based on some rather open-ended discussions with several people, it occurs to me that Judge Kantor is up for re-election this year. His term as Multnomah County Circuit Court Judge expires January 5, 2009. This means he either stands in May 2008 or November 2008, I'm not sure which. If he will be running for re-election, what incumbent wants to have his name and picture splashed all over the papers with a potentially unpopular (pro PERS retirees) ruling. We're rapidly approaching the filing date for the elections and we should know whether or not Judge Kantor has any opposition. I'm betting that Judge Kantor will *not* release his ruling until after the elections, either May or November. He is going to maintain as low a profile as possible until then.

Guess it is time to do a bit of digging at Multnomah County. Perhaps it is time for Judge Kantor to stand in the fire. Or then again, perhaps not. What do you think?

Comfortably Numb

Did you know that as of today exactly 1700 days have passed since July 1, 2003? That is the day our COLAs were taken away from us. That is the length of time that, according to the Oregon Supreme Court, PERS has been breaking the law and depriving us of what is constitutionally ours. No matter how you slice it, dice it, or chop it, the Supreme Court said that neither PERS nor the Legislature could withhold a COLA on a payable benefit. The Oregon Supreme Court also said that PERS couldn't recalculate benefits; that the Legislature had defined a new "fixed" benefit which was owed a COLA. So, have we become so comfortably numb that we've forgotten that decision - which is PERS' fondest hope - or do we need to remind them again? I thought that the 1700th day mark would be an appropriate occasion, especially in a leap year.

God Bless This Mess

On Wednesday February 20, the United States Supreme Court issued a far-reaching 9-0 verdict in the Case of Larue v DeWolff et al. This case concerned the applicability of the federal ERISA law to 401-K retirement plans. The question was whether the plan administrator had to bear fiduciary responsibility for properly executing employee instructions for changes to investments in the plan. The Court held that ERISA applied (lower courts had rejected this argument) and remanded the case back to the lower courts for re-argument and for a new verdict. There is no guarantee that LaRue will ultimately win on remand; the only guarantee is that LaRue will be able to argue that ERISA applies in his situation.

Since the nub of the original case involves a "breach of fiduciary responsibility", writers have inquired whether this case has any bearing on PERS going forward or on any cases currently under legal review. I'm not a lawyer, but it is my understanding that ERISA does not apply to public employee pension cases unless the plans have explicit 401-K options. While it might be argued that Tier 3 as well as the IAP plans are 401-K "like", they are not, in fact, 401-K plans. Thus, it is my sense that this opinion will be helpful to employers of private companies with 401-K plans, but will offer no guidance to workers hoping to litigate against Oregon's PERS system.

I tried to extract the relevant part of the Supreme Court's decision and reprint it below. Unfortunately, there was too much html to make it read clearly. Consequently, here is the link instead.

Here's To The Meantime

PERS "window" retirees can expect to take a one-time benefit hit on August 1, 2008. The "hit" is a result of legal fees awarded to the PERS Coalition and to OPRI in the Strunk Case. As stipulated in the Supreme Court's fee decision, PERS is responsible for paying out $763,367 in legal fees resulting from an OPRI and PERS Coalition "victory" on the COLA freeze provision of HB 2003. This will be apportioned over all retirees based on their benefit on July 1, 2004 with restored COLA adjustments. According to PERS and in the stipulation, the average deduction will be 1.38% of the benefit payable on July 1, 2004. In my case, that will be more than 100% of the COLA payable on that same date. According to the COLA calendar, my cohort was entitled to a 1.36% COLA on that date. So figure that you'll lose the equivalent of about one month's COLA to pay for our "win" in the Supreme Court. The "good news" is that this is a one-time deduction, not a permanent reduction to the benefit base.

Someday, after I've had too much food and too much good wine, and in the meantime someone will have to remind me again exactly what I won in the Supreme Court. After all these years, I have to confess that "victory" is an elusive concept.

And, PS, before you write me all worked up, this agreement was worked out by the Court will the full support of the PERS Coalition and OPRI and, of course, PERS and all the other robbers in this case.

Money Maker

I'm a longtime fan of Nigerian scam emails. For those of you unfamiliar with this particular genre of money scam, please use your Google search engine and put the terms "Nigerian scam" into the box. You'll be treated to both an explanation and a summary of the more egregious variants. What always amazes me is that people fall for this stuff. Even a cursory examination of the grammar, syntax, spelling and content reveals that they must assume I am a complete and utter idiot. Meanwhile, I just keep adding them to my collection. A few days ago, I received a new variant. This one is so preposterous and funny that I thought I'd lighten the news load a bit and reprint it here as a public service. Not a single character has been changed. What follows is an exact transcript of the email I received:
==========

From Mrs Jenifer Bruce
N[38 Rue Des Martyrs Cocody
Abidjan,Cote d'Ivoire


ATTN:
DEAREST ONE OF GOD
I am the above named person from Kuwait. I am married to Mr.Abram Bruce, who worked with Kuwait embassy in Ivory Coast for nine years before he died in the year 2004. We were married for eleven years without a child. He died after a brief illness that lasted for only four days.

Before his death we were both born again Christian. Since his death I decided not to remarry or get a child outside my matrimonial home which the Bible is against. When my late husband was alive he deposited the sum of $2. 5 Million (Two Million Five Hundred U.S. Dollars) in the bank here in Abidjan in suspense account.

Presently, the fund is still with the bank. Recently, my Doctor told me that i have serious sickness which is cancer problem. The one that disturbs me most is my stroke sickness. Having known my condition I decided to donate this fund to a church or individual that will utilize this money the way I am going to instruct herein. I want a church that will use this fund for orphanages, widows, propagating the word of God and to endeavour that the house of God is maintained.

The Bible made us to understand that blessed is the hand that giveth. I took this decision because I don’t have any child that will inherit this money and my husband relatives are not Christians and I don’t want my husband’s efforts to be used by unbelievers. I don’t want a situation where this money will be used in an ungodly way. This is why I am taking this decision. I am not afraid of death hence i know where I am going. I know that I am going to be in the bosom of the Lord. Exodus 14 VS 14 says that the Lord will fight my case and I shall hold my peace.

I don’t need any telephone communication in this regard because of my health hence the presence of my husband’s relatives is around me always I don't want them to know about this development. With God all things are possible. As soon as I receive your reply I shall give you the contact of the bank here in Abidjan. I want you and the church to always pray for me because the Lord is my shepherd. My happiness is that I lived a life of a worthy Christian. Whoever that wants to serve the Lord must serve him in spirit and Truth. Please always be prayerful all through your life.

Contact me on the above e-mail address for more information’s, any delay in your reply will give me room in sourcing another church or individual for this same purpose. Please assure me that you will act accordingly as I Stated herein. Hoping to receive your
reply.
Remain blessed in the Lord.
Yours in Christ,
Mrs Jenifer Bruce

===========

Do you think Mrs Bruce will succeed in her efforts to gain access to your bank account? You've been duly warned, my public service for today.

All The Pigs, All Lined Up

I've received quite a bit of mail from readers upset by the latest piggishness from the PERS Board. People are understandably upset that active members have to give up 0.03% of their guarantee in 2009 to cover attorney fees involved in restoring the 8% guarantee. Kindo ironic that the legal fees reduce the "guarantee" anyway. And retirees are fit to be tied as PERS comes after them again for some, as yet, unknown amount of the 2008 COLA. All because the PERS Coalition won back the COLA, although there is some dispute about exactly what retirees won because PERS gave with one hand and took away with the other. Arken and Robinson should tell us whether that sleight of hand is okay or not.

I have bad news for all of you who have written and the rest of you who are fuming. What PERS is doing is precisely what PERS' attorneys (the California Pigs), the non-State attorneys (the Bill Gary Pigs), the State's attorney (Steven Walters and the Oregon AG's Office Pigs), *and* (drumroll, saving the best for last) the PERS Coalition attorneys (principally Greg Hartman). They signed this agreement back in early 2007, and none of these merry band of robbers bothered to complain during the sham of a PERB hearing last Friday.

Like pigs at a trough, all the lawyers have been paid, and we've all be suckered into believing that this litigation was for our own good. Somehow as my benefit is cut by $xxx (fill in your own large number here), my COLAs are based on some bogus amount that isn't what the Supreme Court said it should be, and now the final thuggish act of taking out attorney fees from our benefits, we now know that the system is rigged. Ostensibly it is for our benefit, but the custodians of our fate would sell us down the river in a heartbeat for legal fees. Be careful who your friends are and know who your enemies are. They might be the same people. Snarl.

Punish The Monkey

Just when you thought the news couldn't get any worse, the PERS Board managed to come up with yet another way to punish us monkies. You remember that 2% COLA that the PERB so graciously reinstated last August? You remember how they then reinstated all the COLAs back to our date of retirement or 7/1/03, whichever was later, but turned around and reduced our benefit to one based on 11.33% crediting for 1999? You keepin' up so far? Of course, this latter action is the subject of litigation that has officially passed the two year mark without a formal ruling (that would be Arken and Robinson). You may have also read, in my previous post, that PERB is planning to reduce the 8% guarantee for 2009 to 7.97% to pay for legal expenses PERS incurred when they lost in the Supreme Court. Well, guess what? The other shoe dropped today. Retirees will get to shoulder their share of the Strunk legal expenses too. That will be achieved by temporarily (2008) reducing the 2% COLA we would be getting in August to something less than 2%. I don't remember the exact amount, but it will be small. Of course, this all misses the crucial point, which is that when you sue PERS you end up suing yourself. You get to pay for the legal fees whether you win or lose. If retirees/actives lose, PERS collects from the PERS Coalition and/or retiree groups. If PERS loses, it collects from retirees and/or actives. I've officially named this game - "punish the monkey" for it doesn't matter what the outcome, it is a lose-lose proposition. We're the monkeys and PERS just smacks us around no matter what. This is just another example of how PERS acts in the best interests of those whose money is entrusted to them by force.

P.S. I was not at the PERB meeting today. I'm collecting information from a variety of sources and will try to post a more comprehensive report when my sources report back. But this report came in quickly and it seemed important enough to ruin everyone's 3-day weekend.

Between The Lines

The PERS Board (PERB) meets this coming Friday (Feb 15). The agenda is chock-a-block with interesting tidbits. Perhaps the most interesting item is the Board's decision to fund the Strunk litigation costs by reducing the guaranteed rate on regular accounts for active members from 8% to 7.97% during 2009. While this is a trivial amount of money for most members, the problem is that this sends the PERB down that slippery slope that got them into trouble with the Oregon Supreme Court in the Strunk case. The court was quite clear that regular accounts are to be paid no less than the guaranteed rate. The "between the lines" interpretation here is that if the PERB gets away with this action, it is the first step towards reducing the guarantee.

If you explore the agenda further, you discover that the PERS Staff is asking the PERB for permission to set aside several hundred thousand dollars for "future litigation." It doesn't take too much imagination to reconcile this agenda item with the reduction in the guarantee to pay for the Strunk litigation costs. The PERB must expect the PERS Coalition to sue - as well they should - to prevent this action.

There is still no word from Judge Kantor on the verdict in Arken or Robinson. Judge Kantor was excused from hearing a nasty murder case; one presumes that his caseload must be horrendous. I hope this means that he'll have more time to rule on those cases he's already heard. God knows, he's had six months to think hard on Arken/Robinson. The verdict can't be that complicated. I can easily envision the outcome. Maybe that's why he's a judge and I'm just a retired college prof <g>.

Not much else to report. My posts will probably diminish a bit over the next few weeks as I await for the verdict on my knee. I blew out all the cartilage over the weekend and I'm trying to get in to see the orthopedic surgeons soon to get the repair scheduled. It is no fun to have a 75 lb dog take a header right into the lateral knee while neither she nor you are paying attention. I can honestly say this this is the first mortal being to have ever brought me to my knees.

My Mini Cooper is on the boat awaiting its journey from Oxford, England to South Carolina to Portland. I hope to take possession of my new gas sipper by about this time next month. I'm still trying to figure out why it takes nearly a month to sail from England to the east coast. In my condition, I could swim faster.

Happy Valentines Day to all. Enjoy your time with the valentine of your choice. I have two lovely sweethearts to spend my evening with. I have two more who'll call. What more can a guy want?

A Few Small Repairs

As you can see, I've done some remodeling to the site. All the previously available features are still here, but they may be relocated from their usual places. The "dots" started to bore me and I decided it was time for a few small repairs. I can't quite get the AdSense box right at the top and I'm still working on it. I have it there because it pays the bills. Hosting a blog isn't free, but the AdSense revenue pays for my hosting charges and for the software I use for posting quickly. Please leave comments for me about the color scheme (positive or negative). I make no claims to any design sense at all, and I use prefigured templates so that they look like I'm an artiste.

Nothing new to report on PERS except for the possibility of some minor housekeeping bills in the Legislature. Doubtful they'll come up in the Special Session, but AFSCME's Don Loving reports on several proposals floating around. None of these are relevant to retirees, but several may affect former PERS workers returning to work for a PERS employer. Stay tuned for more news.

Instant Karma

On Friday, my OPRLF refund check arrived. No muss, no fuss. They accepted my feeble records without me having to dig through archives located about 10 miles away from me and in the dustiest facility I could manage. I appreciate OPRI's willingness to bend a bit on the record-keeping. I understand their need to have us contact them. Since the donation period ended more than 2 years ago and began almost 5 years ago, it is likely that many of the donors moved. If you didn't notify OPRI of your current address, they wouldn't have any way to get your contribution back to you.

So, if you donated to OPRI's Legal Defense Fund (OPRLF) between July 2003 and August 2005 (check OPRI's web site for precise dates), you can get a refund equal to 72% of your total. For many, this is a significant amount of cash. If you want to see what your money bought, check the archives at the Oregon PERS Document Library. All the legal paperwork for the Sartain case (OPRI's portion of the Strunk consolidated case) are posted there.

Still no new information about the Arken and Robinson cases. Judge Kantor seems in no particular hurry to issue his ruling. Either he is spending a lot of time trying to get things right this time, or he hasn't bothered to start and will throw something together when he figures everyone has waited long enough. We're up to 170 days and counting. Another few weeks and we'll hit the 6 month mark. Perhaps he's trying to break his previous record of 8 months to issue a ruling replete with errors.

The blog cleanup is taking longer than I'd hoped for. I discovered that wholesale changes to the blog format cause many of the features I've added (countup widget, links, comments, etc) to vanish. All I want to do is to modernize the "look", not eliminate features. I need to be able to completely backup the existing blog before switching over to the new format. I want instant karma, but so far all I'm getting is instant hangover.

P.S. I have changed the format colors. I'm nowhere near finished, but at least there is a change of scenery to begin with.