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Riemer v. Oregon Public Employees Retirement Board

Court of Appeals of Oregon

September 25, 2013

GEORGE A. RIEMER, Petitioner,
v.
OREGON PUBLIC EMPLOYEES RETIREMENT BOARD and OREGON STATE BAR, Respondents.

Submitted on June 07, 2013.

Public Employees Retirement Board 111361

George A. Riemer filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin C. Lagesen, Assistant Attorney General, filed the brief for respondent Public Employees Retirement Board.

No appearance for respondent Oregon State Bar.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

Petitioner seeks judicial review of an order of the Oregon Public Employees Retirement Board that recalculated petitioner's retirement benefit to correct prior errors and ordered petitioner to reimburse the Public Employees Retirement System (PERS) for overpaid benefits. Petitioner, who retired from the Oregon State Bar in 2006, contends that the board erred in determining when his PERS membership began and in concluding that he was ineligible to purchase "waiting time" retirement credit for time that he worked for the Bar but was not yet a PERS member. We affirm.

The facts material to our decision are undisputed. Petitioner began working for the Bar in January 1981. A Bar employee is not considered to be an "employee" for purposes of the PERS statutes. ORS 9.080(4). However, a Bar employee may, "at the option of the employee, for the purpose of becoming a member of [PERS], be considered an 'employee' as the term is defined in the public employees' retirement laws." Id. Petitioner exercised that option in July 1982 through written notice to the board.

In March 2006, petitioner submitted a retirement application to PERS, listing April 1, 2006, as his effective retirement date. On April 25, 2006, petitioner purchased six months of waiting-time credit from PERS for $3, 247.45.

In June 2006, PERS sent petitioner a letter stating that he had not received "service time credit" or contributions to his retirement account for time he had worked for the Bar before July 1982. Accordingly, PERS adjusted petitioner's account to reflect contributions from August 1981 through June 1982. The adjustment increased petitioner's monthly retirement benefit by several hundred dollars. In February 2007, PERS sent the Bar an invoice for $27, 727.02 for the purportedly missed contributions and interest. The Bar appealed that adjustment, asserting that petitioner had not been a member of PERS before exercising that option in July 1982 and, consequently, the Bar had not been required to make contributions before that time. Petitioner responded that, although he was not considered an employee for purposes of the PERS statutes until he exercised the option in July 1982, under ORS 238.015(1), his PERS membership had begun the first full pay period six months after he began working at the Bar--that is, in August 1981.

PERS concluded that petitioner's membership had begun in August 1982, the first full month after he had elected to be considered an employee under ORS 9.080(4), and, accordingly, that the Bar was not liable for contributions before that time. PERS notified the Bar in June 2008 that it had decided the Bar's appeal, and it cancelled the invoice. For unknown reasons, PERS failed to notify petitioner of its decision at that time. It also failed to correct petitioner's account, and, consequently, it continued to calculate and pay his monthly benefit based on the account balance that included the now-cancelled contributions from 1981 and 1982.

PERS finally notified petitioner of the error in June 2011. It also informed petitioner that he had not been eligible to purchase waiting-time credit even though he had been employed by the Bar for more than six months before his PERS membership began. PERS explained:

"Under ORS 238.125, the purchase of retirement credit for waiting time is premised upon payment of the employee and employer contributions that would have been required if the employee had been a member during that period. You were not an 'employee' for PERS' purposes during your waiting time, so no employee or employer contributions could have been required and, ...

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