Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Eugene Water and Electric Board v. Public Employees Retirement Board

Court of Appeals of Oregon

September 12, 2018

EUGENE WATER AND ELECTRIC BOARD, Petitioner,
v.
PUBLIC EMPLOYEES RETIREMENT BOARD, John Alban, Randy Enders, Kenneth Wedin, Thomas West, and Thomas Williams, Respondents.

          Argued and submitted June 6, 2016.

          Public Employees Retirement System Board 3101, 3102, 3103, 3104, 3105

          C. Robert Steringer argued the cause for petitioner. Also on the briefs were Brett Applegate and Harrang Long Gary Rudnick P.C.

          Judy C. Lucas, Assistant Attorney General, argued the cause for respondent Public Employees Retirement Board. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Edmund J. Spinney argued the cause and filed the brief for respondent Thomas Williams.

          No appearance for respondents John Alban, Randy L. Enders, Kenneth Wedin, and Thomas West.

          Before Ortega, Presiding Judge, and Armstrong, Judge, and Lagesen, Judge.

         Case Summary: Petitioner Eugene Water and Electric Board (EWEB) seeks judicial review of a final order by the Public Employees Retirement Board that, on summary determination, denied as untimely EWEB's request to re correct the starting employment dates for respondents, five EWEB employees, for the purpose of calculating Public Employee Retirement System (PERS) benefits. Initially, EWEB did not consider periods in which respondents were employed through a temporary employment agency eligible for PERS service time, but EWEB later reconsidered its position, indicating to PERS that respondents' PERS eligibility should be determined by their initial hiring dates, not the dates that they [294 Or.App. 8] ceased being paid through a temporary staffing agency and were hired as regular employees by EWEB. PERS made the corrections, notified respondents of them, and invoiced EWEB, which EWEB paid, for its increased contributions based on the corrected service times. More than 60 days later, EWEB sought re correction of that determination under OAR 459-001-0025, but PERS denied the request as untimely under OAR 459-001-0032. EWEB challenges the board's conclusion that the request was untimely. Held: Once PERS staff took action or a made a determination on respondents' starting employment dates, any request to undo that staff action or determination had to be made within 60 days as required by OAR 459-001-0032(2).

         Affirmed.

         [294 Or.App. 9] ORTEGA, P. J.

         Petitioner Eugene Water and Electric Board (EWEB) seeks judicial review of a final order by the Public Employees Retirement Board (board) that, on summary determination, denied as untimely EWEB's request to recorrect the starting employment dates, for the purpose of calculating Public Employee Retirement System (PERS) benefits, for respondents, five of EWEB's employees. Respondents were employed through a temporary staffing agency before EWEB hired them as regular employees. For many years, EWEB did not consider those temporary employment periods eligible for PERS service time. Eventually, because of prompting from some of respondents or PERS, and on the advice of its counsel, EWEB reconsidered its position and indicated to PERS that respondents' PERS eligibility should be determined by their initial hiring dates, not the dates that they ceased being paid through a temporary staffing agency and were hired as regular employees by EWEB. PERS made the corrections, notified respondents of them, and invoiced EWEB for its increased contributions based on the corrected service times. EWEB paid the invoices.

         More than 60 days later, EWEB obtained a different view from its counsel and sought to have PERS recorrect the start dates, [1] framing its requests as requests for correction of records under OAR 459-001-0025. That rule provides that the PERS director is authorized to correct the records of PERS members.[2] PERS, however, viewed those requests as [294 Or.App. 10] seeking review of a staff action or determination under OAR 459-001-0032 and, because such a request for review must be made within 60 days of the staff action or determination sought to be reviewed, rejected them as untimely.[3] Those conflicting views form the heart of this dispute and present the question that we must answer on judicial review: Did the board err when it granted summary determination to PERS and respondents on the basis that EWEB's request under OAR 459-001-0025 to correct its records was instead a request for review of a staff action or determination under OAR 459-001-0032 and was therefore untimely? Our answer is that the board did not err, and, therefore, we affirm.

         We review for legal error the board's grant of summary determination. Wolff v. Board of Psychologist Examiners, 284 Or.App. 792, 800, 395 P.3d 44 (2017). Summary determination is appropriate only when the evidence-viewed in the light most favorable to the nonmoving party-establishes that "there is 'no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought,' and the party filing the motion [] 'is entitled to a favorable ruling as a matter of law.'" Id. (quoting OAR 137-003-0580).

         Although each respondent's circumstances vary somewhat, we recount for purposes of our analysis the facts common-except as noted-to all of them. The pertinent facts are undisputed.[4] The key circumstance giving rise to [294 Or.App. 11] this dispute is that, for a period of time, respondents were paid through a temporary staffing agency, and EWEB did not consider those periods of time eligible for PERS benefits.[5]In this case, for part of each respondent's employment with EWEB, the respondent was employed through a temporary staffing agency. Originally, EWEB did not report to PERS the start dates or the periods for which respondents were employed through a temporary staffing agency, but rather reported the start date or other dates when respondents were considered regular EWEB employees and paid directly by EWEB. Thus, respondents' temporary employment periods were not used to calculate their PERS service time, and EWEB did not contribute to PERS on their behalves for those periods. For one respondent, EWEB's counsel remarked that a transfer of status to temporary employee was intentional on EWEB's part to "break" the respondent's eligibility "so as to avoid PERS costs."

         Then EWEB changed its position. In the cases of respondents Alban, West, and Enders, the change began when EWEB notified them individually that it had learned that PERS possibly viewed their temporary staffing periods as PERS-eligible employment and that they should directly contact PERS. Alban, West, and Enders followed up on those notifications and wrote to PERS asking for corrections. As for Wedin, EWEB's payroll administrator wrote to PERS to request that PERS review Wedin's membership eligibility date and, as for Williams, he at some point wrote to PERS to request that it correct its records to reflect the time in which Williams worked for EWEB on a "temporary/contract [294 Or.App. 12] service" basis.[6] In some cases, EWEB provided PERS with updated information to support its position that, for purposes of calculating PERS eligibility, the employment period should be corrected to reflect the time respondents were employed through a temporary staffing agency. In another case, West included in his communication to PERS a memorandum from EWEB to support an earlier service date. For each respondent, during 2010 and 2011, EWEB's counsel advised EWEB that, after reviewing documents provided by EWEB and considering ORS 238.015, respondents had not been independent contractors while they were paid through the temporary staffing agency and were not exempt from the definition of employee for purposes of determining PERS eligibility.

         During 2010 and 2011, PERS notified respondents that it was changing either the hire date or the period for which they were entitled to PERS service time. Moreover, PERS invoiced EWEB for its required contributions ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.