Frail Grasp On the Big Picture

In the past several days two somewhat different views of the Kantor decision in the Arken/Robinson cases have come down. The first, from Aruna Masih, counsel for Bennett, Hartman, Morris and Kaplan sent the following note out to the Arken plaintiffs:

"As you will recall, in last year's decision, Judge Kantor found in favor of you and Robinson petitioners, but on grounds we did not raise. Therefore, we asked Judge Kantor to clarify this decision,asking him to rule specifically on the main claim we did raise on your behalf, which was that you have a contractual right to keep the 20 percent earnings because in the Strunk case, the Oregon Supreme Court held that the 2003 Legislation created a new entitlement to a fixed retirement benefit based on the 20 percent earnings plus COLA. Also, we alleged that even if you did not have a contractual right to keep the 20 percent earnings, you retired in reliance on the fact that your retirement benefit would be based on the 20 percent earnings plus COLA and that reliance was reasonable.

In yesterday's decision, Judge Kantor ruled against us on that breach of contract and reliance (promissory estoppel) theory. Therefore, the contract claim will have to be decided by the appellate courts. While we are disappointed by the decision, we want to remind you all that we have always expected this case to be decided ultimately by the Oregon Supreme Court. We are busy researching ways to petition the Court of Appeals to certify the appeal directly to the Supreme Court so that you do not have to wait even longer for a final decision on this issue.

In the meantime, Judge Kantor's initial decision protecting all window retirees under the Section 14b reasoning still stands. We are certain Judge Kantor will be asked in the Robinson case to enter some judgment regarding that ruling within the next few months. We will keep you updated on the trial court's progress in the Robinson case as well as the appellate progress in this case."

And then later the same day, PERS posted its take on the Kantor ruling. It is longer and can be read at the PERS Website

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Casino Nation

We all know that gambling in Las Vegas or elsewhere always favors the "house". Traditionally, gambling establishments make their lucre by setting the odds in such a way that the "house" wins only slightly more than half of the time so that people won't get discouraged and stop throwing their money at this ultimately lost cause (for the gamblers). The house never loses because it has an infinite amount of money to play with and it can eventually bankrupt any player and recoup its losses relatively quickly. If I were inclined, the true moneymakers on the stock market would be the companies that run/own gambling establishments.

What does this have to do with PERS? Nothing, except for the fact that PERS has things set up so that the "house" always wins, 100% of the time. I have been tallying the results of emails I've received from my many faithful readers who appealed their "brown envelope" from PERS detailing the outcome of their recalculation of benefits based on the Strunk/Eugene "remediation." The results would make a Las Vegas oddsmaker blush with embarrassment. I have actually gotten email or read reports elsewhere of 987 people who have appealed so far. The results are clear - *no one* has gotten an appeal passed past PERS. We are 0/987 as of this morning. No successes in 987 reports. PERS is taking no prisoners with these appeals. People report that the appeal responses are as generic as their appeals are specific. It looks as if PERS isn't spending any time at all with the appeals. It just sends out a near form letter with some canned responses to the standard appeal bases. I don't post this to discourage you from appealing; I post because I find the outcome to be so preposterous. It doesn't matter what the courts say. It doesn't matter what attorneys say. It doesn't matter that this defies all rational expectation. PERS isn't going to let anyone win for any reason except for a bonafide arithmetic mistake. And you have to have some awfully good information to figure out whether PERS made a mistake or not. The numbers don't jump off the page. The computational algorithms aren't obvious and PERS doesn't make a habit of sending you an explanation of how they obtained the results. You can get this information, but you have to request it specifically.

Judge Kantor: if you read these kinds of things, you might want to know that most of us out here in PERS land are getting pretty fed up with your lame non-excuses for a non-ruling. PERS is running amok and they're doing it claiming you gave them permission. If we have any hope of restoring our benefits before many of us die off, you are going to get off your behind and issue a ruling - soon. Our patience is wearing thin.

The Downward Spiral

I just sent in my resignation email as a moderator of the Oregon PERS Discussion Group (OPDG). I've been a moderator there for nearly the entire duration of the newsgroup - nearly four years now. In an earlier post, I commented on how nasty the political invective had gotten over there and that the site seemed to be in the thrall of some rather conservative and libertarian individuals. Nothing that has happened since my observation last week has convinced me that I was wrong to make that comment. The conversation - such as it is - has taken on a rather ugly and nasty tone. Some members seem hellbent on posting deliberately provocative political commentary unrelated to the group's charter. While I have no problem with political commentary, there is a time and a place for it. The Oregon PERS Discussion Group is *not*, in my opinion, the place for this kind of discussion. When I agreed to be a moderator, the group's focus was on PERS and retirement issues. So long as the discussion remained approximately around those broad topics, I had no difficulty. But now, with PERS news spare, the economy generally in the tank, and the seemingly endless foot-dragging by Judge Kantor and PERS, the participants in OPDG, of whom there are actually few, seem content to trade insults and abuse over presidential politics. As I noted over there, if I want to read that kind of commentary, I have plenty of places I can go for it. More to the point, there are far more intelligent discussions of politics on other newsgroups, and far better blogs around than mine for such discussion. I will continue to contribute PERS commentary to OPDG, but I will not be associated with its administration any longer. I think the group is making a gigantic mistake to go down the path it has chosen to go. I've been participating in newsgroups for about 20 years now and I've seen far too many destroyed by deviating radically from the original intent. The moment you open the door to way off topic discussion, the downward spiral begins.

Changing of the Guards

Ah, 'tis the silly season. Today, various candidates and their mouthpieces stopped by my house to offer themselves as my salvation in Salem. My current state representative - Greg Macpherson - has chosen to run for Attorney General and is taking himself out of the race for his seat in the Oregon House - House District 38. Amongst my visitors today was a representative for Linda Brown, running as a Democrat, for the Legislature in House District 38. Her opponent in the Democratic primary is Chris Garrett. I'm not a shrinking violet as you might guess and I'm pretty focused on giving legislative candidates my opinions on what should and should not be done in Salem. Candidates and their spokespeople are always pretty surprised when I come down so hard on Macpherson and am emphatic that I will *not* support a candidate who maligns public employees or PERS. I have a very short fuse these days and all someone has to do is to suggest that public employees might be getting "too much" of something for me to drop that candidate *off* my radar. I don't know who I'll support yet in the HD 38 race, but both candidates in the democratic primary know my opinions about public employees and PERS. Let's see who is the first to make it clear that public employees don't deserve to be demonized and that PERS isn't some gigantic slush fund that can be used to save the public from its own perfidy. I'm glad to be getting a new representative in Salem. I just hope whoever it is will be better than the current one.

Love Is Free

Politics costs money. SEIU just ponied up $120,000 to help out John Kroger in his campaign against PERS public enemy number 2, Greg Macpherson. Clearly SEIU feels pretty strongly that Macpherson sold out his labor supporters in authoring and backing much of the legislation that we all now feel heftily in our pocketbooks. As far as I can tell, this is the largest amount of money any of the unions have given for any statewide campaign and underscores how important the AG race is and how badly SEIU wants Macpherson off the public stage for the next few years. Now if AFSCME decides to pony up an equal amount, Kroger might be able to put Macpherson away permanently. I don't have much hope that AFSCME will do so, however, as they are the union representing the attorneys in the Department of Justice. That unit endorsed Macpherson. Apparently, their pensions are no so important. All I can say is that my money went to Kroger and I'm hoping he'll have staying power to get to 50% + 1 on May 20th. Go John.

Back To Black

One of the most important Oregon positions is the Treasurer. The state treasurer is nominally the head of the Oregon Investment Council, which directs the investments of the PERS fund and all of the other state agencies. The State Treasurer, currently Randall Edwards, has done an excellent job in the face of some extraordinary forces at work in the US and World stock markets. The main candidates for this years opening are Ben Westlund (formerly a Republican, now an Independent) and Allen Alley, whose ads seem to appear quite regularly in the Google ad box above. Just about all the major unions and most major Dems and Republicans have endorsed Westlund for the position. Westlund has had a lot of legislative experience and has had some business experience. I suppose he'll do a good job as State Treasurer. He would have a strong, professional staff to work with and the Oregon Investment Council is about the best any state has these days. Whoever wins the election will be managing the PERS fund for the next four years. I think it quite incumbent upon us to research the candidates and vote for the one who can make our money work the hardest. What we don't need is a Treasurer who thinks that PERS can be a slush fund for some other derelict agency. That happened in the 80's with SAIF. We don't need a rerun of that. Fortunately, I think the law prevents that from happening, but then again, we all thought that PERS had to obey the law too. Boy were we wrong!

Keep It Simple

I just had a brief message from Greg Hartman expressing his frustration to join ours with the lack of news from Judge Kantor's courtroom. He doesn't have any more idea when things will start moving than I do.

Back to our regularly scheduled rant.

Shake Those Windows

My post yesterday and the comments thereon seem to rattle some windows over at OPDG. I didn't expect the comments to be reprinted there - it is a breach of netiquette to do so without permission - but that's life. There is no question in my mind that the venom level seems to be rising and that the worst offenders seem to have a very conservative, libertarian bent. To reiterate my thoughts from yesterday, I really, really, really dislike politics as a basis for discourse, especially in a forum dedicated to PERS discussion. Ordinarily civil people become animals when advocating political positions, especially when it comes to Presidential politics. You will not see any political endorsements of Presidential candidates here, although I may take a stand on local politicians who had some influence on the PERS decisions of the past few years. I think it fair to target those who made decisions affecting our livelihoods so directly. And I'm especially upset at those politicians who professed their loyalty to public employees all the while stabbing them in the back. And, I want to reward those politicians who made a point of opposing efforts to disrupt the benefit flow to retirees and to active PERS members. By and large, this is a blog about PERS and to the extent that it is possible, I want to keep it about PERS. If I want to discuss something else, I'll start another blog. Maybe I'll call it - Ramblings from Chairman Marc. Don't be looking for it anytime soon, however. It'll be a cold day.....

Judge Kantor still has not ruled and Francisco Franco is still dead.

Don't Bottle It Up

Another wave of recalculation letters must have gone out. The PERS discussion group has a bunch of new members who've just discovered the group. They got their letters last week and are wondering what hit them and what to do. Many are just plain pissed. It is nice to get new readers. In addition to getting some useful advice, new members of OPDG are getting a serious dose of the politics of the PERS discussion group. If you are a liberal, you'll find yourself outnumbered and outgunned on OPDG. The conservative viewpoint seems to dominate all political discourse (I use that term loosely), and any attempt to interject a liberal opinion or point of view gets strangled by the chorus of conservative, libertarian views espoused there. It is somewhat surprising to find a group of mostly retired public employees so anti-liberal as one finds at OPDG. I guess it is true that as one gets older, one gets more conservative. I certainly haven't found my "conservative voice" yet, although I confess to be a bit more intolerant as I get older. I guess it is that "cranky curmudgeon" in me that comes out every now and then. I tune out most of the rhetoric and just participate in the PERS discussion. My life is too short to become enmeshed in the animosity expressed by the head-bangers there. They just don't bottle it up, which is healthy, I suppose. God help you if you are an Obama supporter, or even worse, a Hillary defender. I haven't decided yet who I will vote for in May. I have decided that I won't be voting for McSame.

In the meantime, we still don't have any progress on the PERS front. Judge Kantor seems to be spinning his wheels and there are no extant rumors that suggest or even hint at the timing of a ruling. Perhaps Judge Kantor feels that if he never rules, we'll all just go away. We may not go away voluntarily, but we may all die and our estates may not want to pursue this any further. I hope it doesn't go that far. I hope that Greg Hartman is right that a decision may be made by June. I'm sure getting tired of writing all these blog posts that report no news. I'm getting mighty tired of reading all the political rants everywhere. I hate election years.

Walk On

Just a quick note here to let my readers know that I will be voting for Vicki Walker for Oregon's Secretary of State. Vicki strongly supported PERS members and retirees during the 2003 legislative session, and will do an outstanding job as Secretary of State. That makes two endorsements for me in this upcoming May 20, 2008 primary. I have not made my decision on who to vote for in the US Senate race (Merkley or Novick), for President (Clinton or Obama), or in the Oregon 5th Congressional District (Darlene Hooley's seat). Similarly, in House District 38, there are several outstanding candidates and I have no particular favorite amongst them. I don't get to vote in the Portland races and so have no preferences there either, except that Sam Adams has not been a friend of public employees. I *may* make some other recommendations as we get closer to May 20th, but for now, the only races that interest me are those for Secretary of State and for Oregon Attorney General. In that latter race, John Kroger is the man.

Pimping My Ride

The old spin-meister, Greg MacPherson, is still pimping his record on the basis of his performance in reforming PERS. He's also fabricating a tale about "open government", which sits awfully well with those of us who were victimized by the open-government initiative inside PERS. Those cretins, along with our upstanding employers, conspired together to come up with a "fix" for the PERS problems that didn't happen to consider the impact on a primary stakeholder, PERS members and retirees. If this is the kind of "open government" Greg wants, I want no part of it. This blog is proud to go on record as endorsing John Kroger in the upcoming May primary for Oregon Attorney General. We need an honest Attorney General, not one who talks out of both sides of his mouth at the same time.

I Will Survive

This is dedicated to all PERS members and retirees and is our collective "finger" to PERS.

Run, Run, Run

Attorney General candidate John Kroger picked up AFSCME's endorsement on Tuesday. Previously, SEIU and the OEA endorsed him over his opponent Greg Macpherson. This means that Kroger now has the endorsement of the three largest public employee unions. Since there is no Republican running in the May primary, whoever wins in May will run unopposed in November and will be the next Oregon Attorney General. This is an important race. Some previous AGs have gone on to run for Governor, including Oregon's current Governor, Ted Kulongoski. To help you sort this race out, I need only remind readers that the 2003 PERS reform legislation was authored principally by Macpherson, who continues to defend his actions in the face of widespread opposition from public employees. We need to work together to show Mr. Macpherson the door back to his law firm. If Macpherson loses in the May primary, he will have given up his seat in the Legislature as well. This would take him out of politics for the next two years, at least, and probably deny him the name recognition he would need to run successfully for the Governor's office. If there is any politician who needs to go, it is Greg Macpherson. Support John Kroger. Tell your friends to support John Kroger. Now is a good time to send a really strong message to Macpherson that we didn't (and still don't) appreciate his tampering with our PERS benefits retroactively or prospectively. Help send Greg back to Stoel, Rives. They need him far worse than we do.

Dirty City

I just heard that Judge Kantor has resigned from the bench and has turned the Arken/Robinson cases over to Judge Judith Scheindlin, better known to some of her fans as "Judge Judy". She has promised to whack those PERS moles the next time they pop out of their holes.

Money

PERS posted the final earnings for 2007 yesterday. Tier 1 regular accounts were credited at 7.97% on actual earnings of 10.10%. Tier 2 (and presumably IAP) members received 9.47%. The variable account earnings were a measly 1.75%. Tier 1 members may be puzzled why the credited earnings rate is less than 8%, the Tier 1 rate guarantee. Recall that the PERS Board and the PERS Coalition agreed that legal expenses attributable to the Strunk case would be apportioned over actives, inactives, and retirees in proportion to the actual benefits received as a result of the Strunk litigation. Tier 1 active accounts were assessed 0.03%, which explains the discrepancy (8.00% - 0.03% = 7.97%). The riskier variable account took a beating in the last quarter of 2007 and the final crediting reflects that. Retirees will see their 2008 COLA reduced by a similar amount to the Tier 1 reduction in July 2008.