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Petrillo v. Public Employees Retirement Board

Court of Appeals of Oregon

June 14, 2017

Samuel Joseph PETRILLO, Petitioner,
v.
PUBLIC EMPLOYEES RETIREMENT BOARD, Respondent.

          Argued and submitted March 2, 2017

         Public Employees Retirement Board 365837319

          Stephen C. Thompson argued the cause for petitioner. With him on the briefs was Kirklin Thompson & Pope LLP.

          Judy C. Lucas, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary: Petitioner seeks judicial review of a fnal order of the Public Employees Retirement Board (PERB) that allowed the Public Employees Retirement System (PERS) to recoup an overpayment of benefts paid to petitioner as a benefciary of his late wife's PERS account. Petitioner argues that a 2004 settlement agreement bars PERS from recovering the overpayment and that, under the agreement, the Marion County Circuit Court has exclusive jurisdiction over this dispute. Held: The settlement agreement resolved only early claims in prior litigation, did not prevent recovery of the overpayment, and did not deprive PERB of jurisdiction. The Court of Appeals affrms PERB's fnal order allowing PERS to collect the overpayment of $4, 803.88.

         Affrmed. [286 Or.App. 201]

          DeVORE, J.

         Petitioner seeks judicial review of a final order of the Public Employees Retirement Board (PERB) that allowed the Public Employees Retirement System (PERS) to recoup an overpayment of benefits paid to petitioner as a beneficiary of his late wife's PERS account. Petitioner argues that a 2004 settlement agreement bars PERS from recovering the overpayment and that, under the agreement, the Marion County Circuit Court has exclusive jurisdiction over this dispute. We conclude that the settlement agreement resolved only early claims in prior litigation, does not prevent recovery of the overpayment, and does not deprive PERB of jurisdiction. Therefore, we affirm PERB's final order allowing PERS to collect the overpayment of $4, 803.88.

         I. FACTS

         A. Overpayment and Legislation

         Our conclusion rests on a distinction between an overpayment made in 1999 and an underpayment corrected in 2004. For the reasons we will explain, the 2004 correction of the underpayment was what was settled while the 1999 overpayment was not settled. That distinction provides the light for the path through these facts and related cases.

         PERB administers PERS. Petitioner's wife became a PERS member before January 1, 1996, and was a Tier One member. When she died in 2002, petitioner became the beneficiary of her PERS account. In 2000, PERB had adopted an order establishing that Tier One member accounts would receive a 20 percent earnings credit for 1999. Several public employers challenged the order in several cases. In 2002, the Marion County Circuit Court found error, vacated the 20 percent crediting order, and directed PERB to issue a revised order to correct the 1999 overpayment. City of Eugene v. PERB, Marion County Circuit Court Case Nos. 99C12794, 00C-16173, 99C-12838, 99C-20235. The decision was appealed. City of Eugene v. PERB. 339 Or. 113, 117 P.3d 1001 (2005), modified on recons. 341 Or. 120, 137 P.3d 1288 (2006).

         In light of the trial court decision, the PERS Fiscal Division recalculated the earnings credit for 1999 and found that the proper 1999 earnings credit for member accounts [286 Or.App. 202] should have been 11.33 percent. SeeArkenv. City of Portland. 351 Or. 113, 123, 263 P.3d 975 (2011) (reciting that fact).

         While appeals were pending, the Oregon Legislature passed House Bill (HB) 2003 (2003), the "PERS Reform and Stabilization Act of 2003." Section 10 of HB 2003 addressed, among other things, the 1999 overpayment that was at issue in the appeal noted above. Section 10 required PERB to recalculate members' account balances with an earnings credit of 11.33 percent, rather than 20 percent, for the year 1999. Or Laws 2003, ch 67, § 10, amended by Or Laws 2003, ch 625, § 13. The effect of the legislation on the pending appeals was not then known.

         B. Underpayment ...


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