Frail Grasp On the Big Picture

Several different interpretations of the Kantor rulings have surfaced. The first, which I reprint here, was sent by Aruna Masih, one of Hartman's partners, to all of the plaintiffs in the Arken case. In it, she gives her take on what happened and what the next steps will be. She writes:

" 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. " (My thanks to Michael Arken for sharing this communication with me and for permitting me to post it here.)

In contrast, the PERS website has its interpretation of what went down in Tuesday's ruling. You can read it here. The document can be found in a link at the upper right corner of the blog under current news.

After reading both, you get to decide which of the two sides has the firmest grasp on the big picture, and which doesn't.

For more discussion and news on the Arken case, please stop by the PERS Oregon Discussion group (POD), which you can join by clicking on the Yahoo link on the left.

March of the Pigs

Yesterday's ruling by Multnomah Country Circuit Court Judge Henry Kantor, has left many PERS retirees in despair. While the ruling was hardly uplifting, it wasn't a surprise (at least not to me). If Judge Kantor had wanted to gobsmack PERS for what they admitted they were doing last August 16, I suspect he would have done it right then and there. That he didn't, and that he needed more time to study it, suggested that we wouldn't get a favorable ruling. This, even though I sat through that entire hearing and watched Judge Kantor's facial expressions that suggested he wasn't happy with the wide boys working for PERS. But if there is anything I've learned in my years of sitting in the back benches of courtrooms is that it is impossible to read anything into Judge's expressions, body language, or even their questions.

What exactly did Judge Kantor do to help the pigs out even more than they've already been helped by the actions of a couple of really slimy lawyers? First, and foremost, Judge Kantor ruled unequivocally that PERS could NOT collect the overpayments PERS was wanting to collect in their Strunk/Eugene remediation project. This was the essence of the Robinson case. Judge Kantor ruled that PERS' January 2007 order and its March 2007 "collection notice" were illegal on their face. Period, end of story. PERS cannot collect that large chunk of money by any means. To be clear here, this is only Judge Kantor's ruling. Before this story is over, this ruling will be reviewed by the Oregon Court of Appeals (possibly) and the Oregon Supreme Court (for sure).

The second ruling Judge Kantor made was that the 20% earnings credit for 1999 had never been finalized because it had been appealed in a timely manner, according to the law. Therefore, neither retirees nor members had any right to expect earnings that high, especially following the ruling in the City of Eugene case and its subsequent codification in statute (HB 2003). Thus, while retirement benefits had been calculated on the 20% in some cases, and notices of entitlement went out with that figured into the resulting benefit, PERS had no obligation to continue paying an erroneous benefit. Judge Kantor ruled that "promissory estoppel" did not apply in cases like this; therefore, retirees had no claim against PERS for supplying faulty advice, incorrect information etc. This, to me, was the most disappointing part of the ruling. PERS does not have to give people correct information and they can't be held responsible if what they give is faulty advice. (This has bearing on another case in the pipeline.)

Finally, Judge Kantor ruled that it was perfectly permissible for PERS to adjust retiree benefits, as PERS has been doing, when there has been an error made in the calculation (i.e. the 1999 20% crediting, versus the "correct" amount of 11.33%).

At this point, both Arken and Robinson head to the Oregon Court of Appeals. There has been considerable talk about petitioning the Court of Appeals for a "pass" and moving the entire show onto the Oregon Supreme Court. I'm ambivalent about this. As much as I'd like this whole thing to be over, I'm not sure I'm ready for this to move before the White case has had its day in Court. If Arken/Robinson get their pass to the OSC, I'll be OK with it, but I'd like a ruling on White before the Court hears any more cases.

P.S. Press the Yahoo! button to join our new newsgroup where we can discuss this ruling in as much detail as people want, in near real-time. We're growing by leaps and bounds and the discussion has been really good so far. And it is all about PERS.

Slow Train Turning

Greg Hartman just sent me the news that Judge Kantor has issued his ruling in the Arken/Robinson cases this morning. I cannot tell you what the news is, or even read the opinion yet as it is nowhere to be found on the net yet. But have no fear. I will have it by this evening come hell or high water. In the meantime, consider Hartman's final line in his email to me. "On to the Court of Appeals...." I could draw all sorts of inferences from that, but I'd simply prefer to read the opinion. I will have it up as soon as I can get my hands on it.

Here's the ruling. Try to enjoy even though we didn't win anything we didn't already have.

Come Together

The new PERS Oregon Discussion group (affectionately known as POD) is coming together nicely. Over the holiday weekend when it went live, we picked up 98 new members and have over 80 posted messages. Not bad given the limited amount of publicity we've gone for. The questions, so far, have almost ALL been about PERS, and clearly there has been a pent-up demand for a place to ask and to get these questions answered. I suspect that the other PERS newsgroup became fairly intimidating for some our new members as the political volume rose. Just an hypothesis, but I can't believe our new members wouldn't have asked them there (OPDG) if the invective and political level had been eliminated or the volume turned way down. Nevertheless, POD welcomes ALL questions of a PERS and retirement nature. And we promise to answer any questions you have, and we promise to direct you to relevant PERS employees if we can't answer your questions. I also promise to answer any question of a more personal level about PERS back channel by email if I don't think it appropriate to be revealing the specifics of your case in a public forum. I am really excited by the success so far, and anticipate that we will have a really useful forum for years to come.

If you are reading about the new group for the first time, and you want to join, there is a Yahoo! button in the left column. You can click the button and you will be taken directly to the "join" page for the new group. If you are already a member of other Yahoo groups (including OPDG) the "joining" process is quite simple. Even if you aren't a Yahoo member, the process is quite simple. I encourage you and all your PERS friends to join. The more members we have, the more diversity in the types of questions we'll get. And, this ISN"T JUST FOR RETIREES. We welcome membership from all active PERS members, OPSRP members, and inactive, but not retired, members. In short, there is nothing from the PERS membership we aren't interested in. Even questions about the OUS optional retirement plan, the Oregon 457 deferred compensation program, and the higher education 403B plan are welcomed. We may not always have the expertise to answer questions about those latter programs, but we do know who to recommend that you contact for deeper answers.

So come on in, enjoy the water, the fresh air, and the stimulating discussion. I've been astonished by the quality of the questions so far, and the overall enthusiasm of the members. We're shooting for 250 members by June 13. Think of this like an OPB pledge drive, except it won't cost you any money.

Start Me Up

I am happy to announce that my new PERS discussion group has gone live. The group has a restricted focus - PERS and issues related to retirement. Stop by and you can read more about the group. If you are interested in joining this new group, go to the left margin of this blog, scroll down until you see the Yahoo! logo, and click on the logo. It will take you to the page on Yahoo where you can join this specific newsgroup. If you already participate in OPDG, the joining is quite simple. If you aren't a participant in any Yahoo groups and don't have a Yahoo mail account, the process is only slightly less simple. The process should take no more than a minute for anyone. Be assured that although you will need an email address to join the new group, the email address is shielded from everyone, including me. You will *not* get any spam as a result of joining the new group.

I will have two moderators on the group to help make certain that the new group stays on focus. We will rule with a very light hand, except when the discussions stray too far away from the group's primary purpose. If you like to use RSS syndication readers, the new group will support this - a contrast from OPDG.

I hope you find the new group useful. I hope we can have some spirited discussion about retirement, about PERS, about Social Security, Medicare, and all elements of healthcare for retirees. Already the membership includes some pretty helpful people. If you have any question about our primary areas, please post it. We can all learn from your questions and the answer(s) to them. C'mon down. Take the group for a spin. Let us know what you think. The group's framing is up, but there will still be some work to be done on the roofing, the siding, and the interior. Come join us and pitch in with your ideas. We're still in search of some photos for our group picture(s). I'd like to put together some sort of revolving "slide show". I'm open to any and all suggestions for interior design.

Digital Ghost

Is what I plan to be around OPDG for awhile. The group no longer meets my and many others' needs. As a result, many people have pleaded with me to leave and take them with me. While I don't plan to leave OPDG, I am in the process of creating a new newsgroup and recruiting two moderators to help me. I've already gotten agreement from one, and I'm awaiting a response from the second.

I'm pretty certain the new newsgroup will be on Yahoo, site of the current OPDG. I'm not doing it to be malicious. I'm doing it because Yahoo offers some management tools that I can't get on Google. Moreover, by remaining at Yahoo, any member of OPDG can join the new group by simply pressing "join". There will be no new handle to create, no new system to get used to. The ability to have both OPDG and the new, as yet unnamed, group available on the same server is a bonus.

Why a new group? For those who have been around OPDG for the past five or six months, the answer should be obvious. I've stated more than once that I hate political discussions, except on a group specializing in them. The comments on OPDG have deviated into politics to the point that almost any PERS-related discussion gets lost in the morass of politics. The new group will be restricted to PERS and PERS-related discussion. This includes anything pertinent to retirement in general, retirement specifically, Social Security, Medicare, and the myriad of other facets of retirement. Politics qua politics will be expressly verboten and overtly political posts will be deleted without any warning. Members who repeatedly violate *this* rule will be banned from the group. We will also open up the group to drive-by readers so that we can use the wonderful tools available in RSS/Atom reader/feeders. If you don't know about these, no problem. But for those of us who depend on RSS tools as a way to organize our busy lives, this alone justifies a new group. Yes, I do realize that anyone will be able to *read* postings, but only members will be able to post. But that is the small price to pay for the access to these other useful tools.

Once the moderators are in place, the new newsgroup will open. I will publicize it widely on this blog and, indeed, on OPDG as well. It is not intended to replace OPDG, but is to provide an oasis for people who (like me) just don't agree with the direction OPDG has taken in the past six months. I'm sure this will provoke some grousing and controversy, but I didn't make this decision lightly. Taking on another project isn't something I was seeking. My ego is solid and I don't need the ego gratification of having things run exactly my way. But, when something begins to deviate so widely from its original conception, it is time to chart another course. Since I have the technical skills to multitask a series of web-related projects, and I expect to have equally technically competent moderators.

The beauty of a second newsgroup more laser focused on issues relevant to retirees, especially PERS retirees, is to give members both a choice and some diversity. I encourage participation in both groups. People will probably choose one over the other. While that isn't my intent, I fully expect it to happen. And if it does, so be it. I'm not leaving OPDG myself, nor do I think either of the moderators will either. We're all attracted to diversity but we're also quite fed up with the crap coming down on a regular basis from OPDG.

Look for a follow-up posting before the end of the Memorial Day weekend (I hope) announcing the name and location of the new newsgroup.

P.S. I've sneaked in a Yahoo! button on the left side. If you go to it and click in the "Join" area, you will be taken to a page where you can easily join the new newsgroup. While it is not fully active yet, we are accepting new members.

HAVE A SAFE MEMORIAL DAY WEEKEND!

All Along the Watchtower

There are some really interesting rumors floating around this day after the election. One involves the now defeated and out of work politician Greg Macpherson. Question: how do you keep a politician in the news for two years when said politician has no political position to occupy? Reasonable question. Question 2: What if the politician is a close friend of the Governor and acted as the Governor's "go to" guy during the 2003 Legislature and managed to get much of the PERS reform passed. Corollary: Your guy doesn't have any political cache anymore, but he wants to be your successor (as Governor) in the worst way? How do you keep him in the news and how do you get in the face of the very people you blame for his defeat. Bingo: how about if we appoint Greg Macpherson to the PERS Board to replace one or more of the members who'd like to move on. That's the rumor I'm hearing right now. Its source isn't strong compared to others I have, but this source has earned creds with me. So, those of you right now celebrating Kroger's stunning victory might want to give some thought to what a PERS Board with Greg Macpherson might look like.

Another rumor that has been running around in various forms for about a month now is beginning to gain some traction as I hear it from more and more disconnected sources. This rumor has Judge Kantor effectively delaying issuing his rulings in the Arken and Robinson cases until after he's at least heard the White Case, also scheduled with Judge Kantor for August 4-5, 2008. While this remains in the rumor state, the sources are becoming more and more credible with each repeating. The central element of all three cases is the "settlement agreement" between PERS and the employers. This agreement, signed in early 2004, preceded the Court's Strunk opinion, and effectively applied a "nuclear option" to permit PERS to more-or-less ignore whatever the Supreme Court ruled. And PERS has indeed pretty much ignored the Supreme Court. Arken gets to the question of the COLA freeze on which the Strunk ruled on 3/8/05, while Robinson gets to the section 14b "exclusively remedy" for the Lipscomb (City of Eugene Case) mooted by the Supreme Court in late 2005 and vacated in 2006. The key to all these cases is the "settlement", which the White Case attacks directly. Current thinking is that all roads lead through White and that it would be best to have all three cases end up before the Supreme Court simultaneously. If Kantor delays his Arken/Robinson ruling until after he's ready to issue a ruling in White, he may be able to take care of all three cases together. My own opinion is that if he rules in favor of the PERS Coalition in White, Arken is moot, and the issue settled law; Robinson is somewhat of an anomaly; nevertheless its effect is directly tied to the settlement agreement and it is my non-legal intepretation that a favorable ruling in White, puts Robinson back in play and the defendants on the hook to explain why they didn't apply the legislature's prescribed remedy to deal with the issues arising for retirees as a result of the legislation. I don't envy the wait for anyone, but these cases are moving into their 5 year; I can't get worked up by the possibility of another few month delay.

What do you think of these rumors? True? False? Implausible? Why? Why not?

Ring Them Bells

It truly was a good night for an election. I stayed up well past 11 p.m. (late for me) to watch the election returns on TV. I got to see Bojack blogging live on KGW. I watch as candidate after candidate I voted for was projected as the winner. Of course, there was no overcoming the pure exuberance of watching John Kroger coast to an easy victory over the late, but not lamented, Greg Macpherson. He may be out, but he won't be gone. Expect to see him in a run for Governor in 2010. We'll still be here opposing him in the primary if he does so. We shall never forget what a great friend of labor he was - not! I've gotten lots of "thanks" for my help in electing Kroger. I'll take compliments whenever they come, but I personally think that the thanks go to SEIU and OEA for providing serious financial help to fund John's campaign. Without their money, John wouldn't have been able to get his message out to voters. Even with nearly $400,000 in union money, John was still outspent in the primary by at least $50,000. Even more delicious was John's margin of victory - 58 - 42 according to the latest figures. Macpherson wasn't even close. I'd like to think we helped in a small way, but not enough to account for a margin of victory that great. It was the unions' victory to savor. I just get to gloat.

On another election result, Judge Henry Kantor was reelected (unopposed) to the Multnomah County Circuit Court. This was hardly a shocking development. Incumbent judges rarely lose and it is unimaginable to have an unopposed incumbent judge losing. But more significantly, now that Judge Kantor cannot claim the distraction of his reelection it is time to get moving on finalizing and issuing the PERS rulings in Arken and Robinson before White shows up on August 4 - 5. There are no longer ANY excuses for delaying. It might be time for some POLITE phone calls to Judge Kantor's offices expressing CONCERN at how long things are taking. For god's sake, don't do anything that would piss off Judge Kantor's office manager, or Judge Kantor. I think it perfectly reasonable to express concern that the decision is taking so long and that PERS continues to withhold benefits that we feel are rightly ours. But, DO NOT in any way criticize Judge Kantor or his slowness. Judges are human and they don't like to be criticized by angry citizen phone calls any more than we like them. So, be on your best behavior if you do decide to call. And, to make you think a bit more about this, I'm not going to do the research for you and post the phone number. There are way too many cranks in this world. This way, if you want to call, you can look up the phone number and make the call. Robocranks and other loons won't bother to do that. Think of it as my way of saving us from the actions of others.

Well, I'm going back to savor the victories, lick my wounds over a few defeats (like passing 3 more expensive and unnececessary Kevin Mannix, Measure 11, constitutional amendments). Enjoy the victories you experienced and lets get ready to move on to the November elections. Happy politics. Happy Wednesday.

Pocketful of Sunshine

I am delighted to report that our efforts on behalf of John Kroger were successful. Unless there is a credible Republican writein, Professor Kroger will become Oregon's new Attorney General. We PERS members and retires want to express our thanks to SEIU and OEA for providing John with the resources to take on Greg Macpherson and his well-funded cronies. I'm carrying around a pocketful of sunshine to enjoy everytime I think about Macpherson's ignominous return to Stoel-Rives. Losing 55% to 45% must be a particularly bitter pill for Mac to swallow. Perhaps future politicians will be more circumspect in passing legislation so fraught with legal peril and affecting so many traditional supporters. Bad decision Greg. Kinda like the old song: "bad dog, no biscuit".

I'm disappointed that Hillary didn't do better, and that Kate Brown trounced her opponents including Vicki Walker. I'm also sorry to see Jeff Merkley get the nod over Steve Novick. I had higher hopes that Novick would be a better challenger for Gordon Smith; now I'm a bit pessimistic about Merkeley's chances in November. I'm not a Republican, but I was sure happy to see Mike Erickson put a crimp in Kevin Mannix's attempts to win in House District 5. I think Mannix is now about 0 - 7 in statewide offices. Loren Parks' ROI for those donations to Mannix's endless campaigns is now beyond 0%; it is major negative territory.

Despite those few disappoints, tonight is a night for PERS members and retirees to be very happy. We have punished the worst offender still eligible for other public offices by eliminating him from politics for at least the next two years. It is hard to get any traction for higher office when you don't have a guaranteed bully pulpit to speak from. Goodbye Greg. We'll miss you -- NOT!

Tennessee Waltz

This in from a faithful reader. You all might like to send the Governor
of Oregon, Tennessee's retiree buyout plan. To get some of the
heavyweights to retire early, they are offering 2 years of paid college
tuition (presumably at Tennessee colleges and universities). Early
retirees also get $500.00 per year of service as a cash bonus (for 30
year employees that works out to $15,000). They also get two and half
years of paid health insurance. And more incentives are coming.

Obviously, Tennessee's Governor and Legislature think a bit more highly of public employees
than Oregon's unprogressive litigators (oops, meant legislators. Must
be freudian or something like that). Perhaps Greg Macpherson can come
up with some more clever ideas if, by dumb luck, he ends up as Oregon's
new AG. (I sure as hell hope he doesn't and I'm doing my level best to
inform people about his history as a legislator and his "friendship"
with organized labor. I think SEIU wants to send him a really strong
message. They have contributed slightly less than $400,000 to John Kroger.

Run For The Roses

Or the post office in this case. Time is getting extremely short. Tuesday at 8 p.m. the latest round in Oregon's silly season comes to an end. If you want to express your voice, you have two days to get your ballot in to your local county election headquarters. The deadline is for RECEIPT of your ballot. Postmarks don't matter in vote-by-mail. If you haven't already mailed your ballot, I would strongly urge you to drop it off at one of the many county ballot drop off points. Most libraries and most public offices have drop off containers. Please do not rely on the post office at this late date. Vote soon. Vote often (no, not really. This isn't Chicago). Vote for our PERS friends - John Kroger for AG, Vicki Walker for Secretary of State. If you are a Republican, please do NOT write in Ron Saxton for AG. The Republicans have no declared candidate for Attorney General. I'm just as happy that way, but we will all be very unhappy if we are faced with our worst nightmare - a Greg Macpherson v. Ron Saxton race. That combination couldn't possibly be worse for PERS members and retirees.

Rock The Vote

Opinion Polls & Market Research

If you need suggestions, please vote for John Kroger, Oregon Attorney General; Vicki Walker, Oregon Secretary of State. Other suggestions gladly given via email back channel. Those are the two statewide races I care most about. These are the races where PERS members/retirees can thank supporters and punish opponents.

Shorty Wanna Be a Thug

I'm a bit rasty after watching several of Greg Macpherson's TV advertisements. These aren't ads for Macpherson as much as they are attempts to bitch-slap John Kroger. The one I find the most offensive is below:



Not only is this ad factually wrong (Kroger has practiced in Oregon), it is demeaning and offensive to John Kroger. While I have no idea whether Macpherson is shorter or taller than Kroger, Macpherson has amply demonstrated to me why he is an undeserving thug. Besides orchestrating the pillaging of PERS member and retiree benefits, he is following the same playbook as those who "swift boated" John Kerry. We don't need any more of this in Oregon politics. We don't need Greg Macpherson as Oregon Attorney General. I hope you'll join me in marking your ballots for John Kroger as Oregon's next Attorney General. With friends like Greg Macpherson, we don't need any more enemies.

Thug Passion

Just when you thought things couldn't be worse for Oregon PERS members, the news is floating around that Ron Saxton is encouraging his supporters to write him in as a Republican for Oregon Attorney General. The Republicans couldn't find any candidate to run in this month's primary for the AG position. Candidate-for-Life Kevin Mannix decided to run for the Oregon 5th District Congressional seat vacated by Darlene Hooley. As a result, the R's didn't have anyone credible to float for AG. They had all but decided to concede the race to either John Kroger or Greg Macpherson. Now, I'm reading in several different places that Saxton supporters have decided to write him in as the Republican nominee on their, otherwise, blank ballot for AG. He doesn't have to get very many write-in votes to make it to the November general election. My worst nightmare would be Ron Saxton vs Greg Macpherson. Talk about a race between two thugs. Yikes!

Longshot

Oregon's mail-in ballots are starting to arrive in mailboxes around the state. Mine came today. While I'm still pondering some major decisions (e.g. for whom should I vote in the presidential lottery), I've definitely settled on a candidate for Oregon's Attorney General and for Oregon Secretary of State. In the former race, it's a no brainer. John Kroger is the man of the hour. He's public employee friendly and definitely has no exposure to the PERS legislation in the 2003 legislature. His opponent, the smooth and over-confident Greg Macpherson, wears the millstone of the PERS reform in 2003, having authored or sponsored much of the legislation that came back to haunt PERS members and retirees. I want Macpherson out of politics for awhile, and I want this to be a lesson in political payback. Kroger is a strong candidate on his own merits, which makes the decision to oppose Macpherson quite easy. Send pretty boy Greg back to Stoel Rives. In the Secretary of State race there are a number of strong candidates, but the standout, in my opinion, is Vicki Walker. She opposed the PERS reforms in 2003 and has had the courage to take on a number of establishment figures since then. I'm not as optimistic about Vicki's chances of winning in the primary, but if she can make it to the November ballot, she stands a decent chance. Kroger can win outright this month; the Republicans were unable to field a candidate for Attorney General, so whoever wins in the primary will be the next Oregon AG.