See RoguePundit: Shrinking SOU

My comment just grew too long again:

I am not a fan of any person having the government protect them from their own private investment risk. This includes bankers and people employed by the public alike.

The whole reason for tier one and other tiers kind of died in this October 24 Ninth Circuit opinion below.

http://ronledbury.com/robertson_0435898.pdf

The premise had been (yes, HAD BEEN) that a pension plan in existence on the date of hire must be maintained for the duration of the hired person's career. Not any more. That is, no one today can argue that there is either the certainty or even reasonable possibility that there would be public liability on this point, and for which PERS-covered public attorneys (like a big union or like yet another branch of government, without effective oversight) raced to plead liability . . . measure it all out into the future . . . and then issue bonds to be paid back by these fine students over the next 20 years.

I keep insisting on a termination based measure of liability, where the public exposure (the continuing illegal public exposure for the OIC's investment fund for the "independent" PERS) to investment risk is cut off. We can all settle up once, just like with a common auto "accident" and where any payment for liability is expressly contingent upon obtaining a release from any further liability. It is so elemental that to not obtain a release is itself criminal, in the context of the particular duty of public officials.

Part of the reason for my challenge to the state PERS bonds in late 2003 was to get these clowns, and the AG, to make a record of their arguments. It is like in a card game where you know you are going lose a given hand and you have to match the last bet to see the winners hand, to see if they are bluffing. Well, now, they were bluffing. And they still are, but with their cards laid out for all to see.

I still have my brief in the Strunk case posted here:
http://ronledbury.com/july6persamicus.pdf

There is now the multi-tier Portland safety worker pension plan to get straightened out. (They must have gambled that the Ninth Circuit would go the other way.) And, there is an an odd Multnomah County case (Arken) that is a rehash of the REMEDY of the City of Eugene (Lipscomb) case that had reached the final determination of being MOOT by reason of the parties telling the court that they had settled, leaving the SC without a dispute to resolve. One subset of the "window retirees" had not been retired at the time that they were parties to the Lipscomb case and are now trying to elevate their claim, here, by reason of the superior legal argument accorded to retirees over actives. Their new status as retirees though should mean nothing because their claims had already been heard all the way through the to the Oregon Supreme Court.

There is the other subset of persons in the Robinson case that were not parties in the Lipscomb case. This group could and should insist that the 1999 crediting decision was final as to them. In what must be an extraordinary feat of deception by Mr. Hartman upon a subset of his own plaintiffs that is sure to purge this other group of their claim to the higher crediting some seven years ago. It is a "tactical" move that will bind the parties. To illustrate the principal at stake (that of being swishy washy) -- suppose the PERB crediting decision in 1999 was 8 percent and then the 2003 legislature said have another look, whereupon the PERB adjusted the 1999 crediting decision retroactively to be 20 percent instead. What point might someone argue? Exactly the one made by the Oregon SC in Strunk as to the crediting decisions prior to 1999 -- FINALITY.

These folks are skating on spring-time ice. They will all fall through, eventually. Some already fell through and the others are being dragged under.

UPDATE: This is the comment I finally came up with:

An October 24 Ninth Circuit opinion

robertson_0435898.pdf

might yield clues as to the ultimate winner in this poker game of "is there or is there not liability?" Like a bluff.

I posted a comment here where I try to at least present the boundaries of the present discussion.

Don't forget though, in reading my critique of the live case on PERS, now in Multnomah County, that there is a difference between one group of tier-one folks who were actual parties in the OSPOA case and those who were not and therefore rely exclusively upon the legislative provision that creates tier-one and tier-two (hiring date of December 31, 1995, was the cut off for tier-one). The legislative creation of the tiers was an exercise of "remedial" power so as to accommodate perceived (but not litigated as a class action) liability. Now that the presumed liability upon which the split was made has now been definitively proven to be unfounded the legislative distinction for pay for all future work must be stripped of the multi-tier fiasco, at least going forward. It is not optional.

The implementation of principals that conform to the Equal Privileges and Immunities clause (as I often like to point out) is supposed to prevent runaway special interest politics, no matter the hackles from the special interest hecklers to genuine public interest. It is like the meeting of anti-matter and matter, the two paradigms are not supposed exist in the same time and place.

UPDATE: My late night whine to "Your Tax Dollars at Work Dept." is as follows (with some morning editing for readability, for the benefit of the robot readers that visit my site):

I wonder what Mr. Kauffman will do when I ask that he verify 25 signatures for which I knowingly will not have asked the SoS permission to gather? (Just as I successfully did in the past.) I'd like to have any Oregon tax authority inducements to save confined, for private and public people alike (as if they are supposed to be genetically different), to investments in Oregon incorporated or unincorporated entities with a predominantly Oregon resident ownership and operation. (I cannot tell you how freaky it is that we have Oregon tax inducements to facilitate the aggregation of capital to invest anywhere other than at home. Issuing bonds to do more of the same is even more freaky. The notion of divide and conquer -- public/private -- has worked beautifully to mess us up.)

The investment plans would have to qualify so that individuals could claim any piece of Oregon's favorable tax treatment on their personal income taxes. It would mirror the fed's view of raising capital [to] funnel to big remote entities that would be more inclined to threaten to leave unless they get their own corporate tax breaks. (Now, I can't think of [any] PERS specific thing in the statutes that could be used against this play.)

mrfearless47,

On the PERS legal matters, I say let Mr. Hartman, in YOUR personal self-interest, lead a subset of the class of "window retirees" down the black hole called FINALITY. I did my best to explain the folly.

My little signature gambit will allow me [to] demand a declaratory judgment at the stage where the SoS would have to decide to either prepare a ballot title or not (either way), that is I can even demand a declaratory judgment if he does direct the AG to draft the ballot title(s) -- thanks to the Sizemore ruling and the risk that the OEA might jump me in some dark ally later. He can't deny me this possibility by merely refusing to enforce legislative policy, as with M47, which I can also drag in. You see, I will not yet have formed a PAC, thus my individual free speech rights will have to be addressed directly, and will not be clouded by the notion of a judicially contrived limited liability provision in the forced formation of a PAC where no limit on personal liability is provided in the statutes.

If the PERB/OIC wants to act like a bank, with all Oregonians as either the guarantors or depositors, then let them act like a local bank! Each individual can make their own voluntary personal choice with their own private savings if local investment is wise.

UPDATE November 25, 4 AM, responding to RoguePundit, and more:

No law is self enforcing.

For example, if a neighbor puts their fence across your property they can claim the benefit of adverse possession of the property enclosed by the fence. Unless within Oregon's ten year period for adverse possession you obtain a civil judgment of trespass. It would only need to be an award of one dollar because the legal claim to ownership is all that would matter, to defeat the claim for adverse possession.

A court on their own accord could not launch case to resolve a trespass action as that above just as they cannot launch a case to resolve the disputed claims of the legality of conduct of various parties involved in PERS. The could can only respond, within the limits of their designated role, to cases presented to them.

If I told people that I won, in my efforts to inject some analysis into the Strunk case, I am sure that all but about ten people would have declared me crazy. I knew my arguments had hit their mark when I listened to the oral argument (for the Strunk case) and the questions posed to James Baker from Orrick; such as "is it true that PERS can be terminated"? (Paraphrased quote.) To which the answer had to be, ah, ah, ah "yes." It was was music to my ears, but I knew the full parameters of what it meant only because I had stuck nose into all manner of pension law for nearly two years.

My analytical appeal to the court was in the context of their direct oversight role over all attorneys in Oregon, and particularly those that argue before the court and even more particularly public attorneys that argue before the court in the public interest. These folks are considered officers of the court. They are supposed to accurately describe the nature of Oregon law to the non-lawyers that they represent . . . which could be the personal interests of public officials, which is in tension with a contrary public interest that directly conflicts with the personal interests of public officials, and serendipitously that of the personal interests of all public employees.

My target is/are the lawyers that proclaim the existence of liability, where there is none. I am of a mind to believe that the conduct that would represent actionable official misconduct -- criminally actionable official misconduct -- is of the kind that any DA or the AG himself could bring charges today. This is made even more obvious following the clarification of the law following the October 24th decision. That is, is there ANY remaining argument that a public lawyer, or rather an attorney on behalf of the public, could possibly make that can be characterized as a plausible and reasonable basis to roll over and deliver public money to a class of private citizens as though it was compellable in a court of law? Federal or state. The answer has to be no.

Back to the civil trespass action . . . the EVENT that would trigger a court review or verification of the lack of judicial compellable cover for private investment losses would be the complete termination of PERS, or the complete abandonment of ALL "employer contributions" that are NOT directly obtained from individual contributions of employees to accommodate their desire to obtain the benefit of federal INCOME tax incentives to individuals to save for their own retirement. I am of a mind to believe that ANY "employer contributions" are an inherent admission of "unsound" pension plan design . . . to which no one can claim any thing other than a mutual mistake of fact (in the design) that upon discovery must be remedied. Yet here is where the blending of pay-as-you-go and fully funded private accounts is impossible to maintain.

I had argued that with the complete abandonment of a pay-as-you-go scheme, carried to the logical extreme, would convert PERS into nothing more than a bank with a discrete set of depositors. Could you imagine going to Bank of America and having them ask if you are public employee or private employee, as a necessary precondition to opening an account?

Back to the whole reason to I chose to get involved . . . a pay-as-you-go scheme does not afford much of an opportunity for Wall Street types to obtain investment capital to play with under the notion of "other people's money." Individual accounts are all the rage from the federal level folks, for a reason. So much so as to give them an incentive to insert apparently reasoned arguments into the GASB rules (private rules of a private body) to give cover for the issuance of the bonds (for inherently unsound pension plans) that Mr. James Baker from (and others from the law firm of Orrick) seem to favor . . . for the benefit of Wall Street . . . even as they claim to be the private outside council for the PERB. The MORE unsound the better as it leads directly to even MORE bonds.

If I were elected as the AG the first target for criminal prosecution on my list would be the present AG, Mr. Hardy Myers. And I would demand that ALL pension obligation bonds be declared unlawful AT THE TIME of their issuance, just as was the issue of the lawfulness of WPPSS bonds at the time of their issuance. (This is intended as a jab that puts me at risk of a libel lawsuit for implication of criminal conduct . . . that the current AG would be wise to choose to ignore rather than seek judicial clarification.)

Instead, I could try the lesser scheme of advancing a simple initiative to address how the PERS bank invests their money. Local investment is at least, on the margin, in the best interest of Oregonians; in an aggregate view that takes into account ALL Oregonians rather than the best interest of a subset of Oregonians against another subset of Oregonians.

The challenge is to find the right set of facts that can be presented to the court to resolve, without the benefit of the piles of money that get injected into the political election process.

I like the notion of trying to wrap in Measure 47 issues. If the AG refuses to enforce the law then there is absolutely no threat upon which a private claimant can assert the threat of action as a basis to invoke the aid (and both constitutional and statutory jurisdiction) of the court to render a declaratory judgment. (See Utsey; where you might see why I really like reading LANDAU authored opinions.) The AG and the SoS want to ask the court to issue an Advisory Opinion on Measure 47 just as the legislature had asked the court to issue an Advisory Opinion on PERS; rather than merely enforcing the law. They are again starting from the position that the government is liable for something . . . so as to benefit some special interest group . . . the same ones by the way that were benefited by the 2003 PERS modifications (combined with the issuance of bonds under the notion of presumed liability). I can again get to court on a set of facts where am most certainly correct and can again likely get the chance to offer an amicus brief on a matter of public policy to assert that the litigants are clearly NOT arguing for the public interest (which is my goal).