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Wright v. Public Employees Retirement Board

Court of Appeals of Oregon

June 27, 2018

Russel L. WRIGHT, Petitioner,
v.
PUBLIC EMPLOYEES RETIREMENT BOARD, Respondent.

          Argued and Submitted March 21, 2017

          Public Employees Retirement Board 151869

          William J. Macke argued the cause and fled the briefs for petitioner.

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

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Aoyag i, Judge.[*]

         Reversed and remanded.

         Case Summary: Petitioner seeks review of a final order of the Public Employees Retirement Board (PERB), which dismissed his request for a contested case hearing. That dismissal was premised on PERB's conclusion that it lacked jurisdiction over the issues raised in petitioner's request for a hearing and that petitioner was required to pursue relief in circuit court. On judicial review, petitioner assigns error to PERB's conclusions. Held: PERB's order dismissing petitioner's request for a hearing lacked substantial reason. The order did not provide the rationale underlying PERB's conclusion that it lacked jurisdiction to consider petitioner's administrative appeal.

         [292 Or.App. 539] HADLOCK, J.

         Petitioner seeks judicial review of a final order of the Public Employees Retirement Board (PERB), which dismissed his request for a contested case hearing. That dismissal was premised on PERB's conclusion that it lacked jurisdiction over the issues raised in petitioner's request for a hearing and that petitioner had to pursue relief in circuit court. We cannot discern the rationale underlying PERB's conclusion and, therefore, reverse and remand.

         A summary of the most pertinent statutes and regulations provides context for the discussion that follows. PERB is the governing authority of the Public Employees Retirement System (PERS) and establishes the rules for administering the system. ORS 238.650. PERB employs a director, who administers the system in accordance with those rules and appoints agency staff. ORS 238.630; ORS 238.645. The director has authority "to take all action necessary or desirable to administer the system," including but not limited to acting on applications for "correction of records, retirement for disability or service, and death benefits and allowances." OAR 459-001-0025(1)(b).[1] The director may delegate that authority, subject to the director's review. That is, the director may "delegate to subordinates the authority to take any action on the Director's behalf," OAR 459-001-0025(3), but a person "may file with the Director a request for review of a staff action or determination, except as provided for in ORS 238.450" within 60 days of the date on which the staff action was sent to the person requesting review by the director. OAR 459-001-0030(2). The director also is authorized to "[i]nitially review, grant or deny petitions for reconsideration" and "may refer any matter to [PERB] or to an administrative law judge for a contested case or other hearing." OAR 459-001-0025(1)(f), (2). If a person is dissatisfied with the director's ultimate determination, the person may seek a contested case hearing. OAR 459-001-0030(9)(b).

         [292 Or.App. 540] In at least some respects, the process differs when an individual who is a member of PERS sets out to challenge certain PERS computations of retirement benefits. ORS 238.450(1) requires PERS to provide a member who seeks retirement benefits "a written computation of the retirement allowance or benefit to which the member is entitled upon retirement and summary of the information used in making that computation." As here, that computation may be communicated to the member in a document titled "Notice of Entitlement." A member may challenge the accuracy of information used by PERS in that computation "only by filing a written notice of dispute with [PERS]" within 240 days. ORS 238.450(2). When PERS receives such a notice of dispute, it must "make a written decision either affirming the accuracy of the information and computation based thereon or changing the computation using corrected information." ORS 238.450(4). PERS must provide the member with "a copy of the decision and a written explanation of any applicable statutes and rules." Id. The member "is entitled to judicial review of the decision as provided in ORS 183.484 and rules of the board consistent with applicable statutes."[2]Id. However, ORS 238.450(5) provides that the statute "does not affect any authority of the system, on its own initiative, to correct an incorrect computation of any retirement allowance or benefit."

         With that background, we turn to the facts which, for purposes of this appeal, are procedural and undisputed. Petitioner is a member of PERS who initially retired in 2007, returned to active service two years later, and retired again in 2011. In May 2011, PERS sent petitioner a "Notice of Entitlement" regarding his retirement benefit and the balance in his retirement account. That notice accurately informed petitioner that he had the right to contest the information that was used to calculate his benefit amount and had 240 days in which to do so. Petitioner timely disputed his account balance, asked some questions about his account, and "requested a meeting with PERS to sit down and go through the process to satisfy [his] concerns."

         [292 Or.App. 541] Eight months later, in May 2012, PERS sent petitioner a letter apologizing for the delay in responding to his dispute of the Notice of Entitlement. The May 2012 letter stated that PERS had performed a review under ORS 238.450, explained some aspects of PERS's calculation of petitioner's account balance (which was affected by his having retired twice), and stated that PERS was enclosing "a copy of [petitioner's] benefit calculation, the declining account balance worksheet and the Business Rule used to calculate your benefit." The letter itself did not expressly set out petitioner's benefit or account balance.

         The May 2012 letter closed with the following information under the heading "APPEAL RIGHTS":

"Pursuant to [OAR] 459-001-0030, if you disagree with staff's determination you may request a review by writing to the PERS Director within 60 days after the date of this letter. Your request must include the following information [including "a description of the determination you ...

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