Governor Kitzhaber, the Death Penalty and PERS

On November 22, 2011, Governor Kitzhaber issued a temporary reprieve to Gary Haugen from his death sentence for the murder of a fellow prisoner.  The Governor declared that he would not permit any other executions during his term.  Among the reasons for granting the reprieve, the Governor included the following:

1.  he could not be a part of Oregon’s compromised and inequitable capital punishment system any longer; and,

2.  Oregon has an expensive and unworkable system that fails to meet the basic standards of justice.

The Governor stated, however, that he did not exercise his power to compute Mr. Haugen’s sentence because the policy of this state on capital punishment is not his alone to decide.  It is a matter for all Oregonians to decide.

Gary Haugen’s death sentence was the product of the legal process that exists in Oregon.  That process included an unbiased judge, an unbiased jury for his trial and for his separate penalty-phase proceeding, an attorney to represent him and a direct appeal to the Oregon Supreme Court.  The Governor, however, found that procedure to be expensive, inequitable and unjust.

At first glance there may not appear to be any parallels between the Oregon death penalty and Oregon PERS.  While there are many differences, an examination of the procedures used by the Oregon legislature to transform PERS between 1971 and 1989 shows that it is expensive, inequitable and unjust to a far greater degree than the death penalty procedure.  And that PERS transformation clearly imposed an economic death penalty on the people of Oregon.

When PERS was created in 1945, legislators could not join.  That allowed them to represent the interests of all Oregonians when PERS laws were made.  If PERS disputes arose, the disputes were decided by judges who were not PERS members.   Those safeguards changed, though, when the Attorney General ruled in 1971 that legislators could join PERS.  That change eliminated the neutrality of legislators regarding PERS.  Their personal financial interests were now directly aligned with the public employees.  For the next 18 years, the legislators aggressively transformed the PERS laws.  In doing so, they dramatically increased both the retirement benefits PERS members would receive and the financial obligation the people of Oregon would have to pay for those increased benefits.

1971 – 1981.  They increased the employer funded PERS retirement benefit by 150%, from 20% to 50% of final average salary after 30 years.

1973.  They allowed unused sick leave to be used to determine PERS retirement benefit.

1975.     (1) They passed a law that allowed any person who had ever served in legislature to retroactively join PERS.  This retroactive right was kept open for the next twelve years.

(2)  They passed another law that allowed legislators to earn PERS retirement credit for service after age 65.  Legislators become the only elected officials who could do that.

(3) They passed still another law that gave all PERS members a “guaranteed minimum rate of return” on their employee PERS accounts and they gave PERS members on the PERS Board the authority to decide what the guaranteed rate would be.

1979.  55 of the 90 legislators were PERS members.  They passed the PERS pick up law, which was to last from July 1, 1979 to June 30, 1981.  The PERS pick up allowed PERS members to make the people of Oregon pay their employee PERS contributions for them and it also increased their employer funded retirement benefit.  They then passed another law that allowed the Executive Department to pick up the PERS employee contributions for the governor and the legislators.  PERS has estimated that the PERS pick up will cost $874,000,000 during the 2011 – 2013 biennium.

1981.  Legislators made the PERS pick up permanent.

1983.  84 of the 90 legislators were PERS members.  They passed a law putting Oregon’s judges into PERS.  That law had the following provisions:

(1)  Persons becoming a judge for the first time after 1983 automatically became PERS members if they were less than 72 years old.  PERS judges had a 7% employee PERS contribution but the law required that contribution to be paid by the people of Oregon.

(2)  Existing judges were given the option to join PERS or stay in their original retirement plan.  If they stayed in the original plan, they would be required contribute 7% of their salary to that plan.  If they joined PERS, their 7% contribution would be paid for them by the people.  That benefit gave each existing judge who joined PERS an immediate 7% salary increase.

(3)  Judges became the only elected officials who were required to join PERS.

Putting the judges into PERS deprived all Oregonians of their right of fundamental fairness under the Oregon Constitution and the US Constitution in PERS matters and it insured that no PERS law could be made or changed without the approval of PERS legislators or PERS judges.

1989.  82 of the 90 legislators were PERS members.   They passed a law allowing the State to withhold all money owed to a public employer until that employer’s PERS assessment is fully paid.  That law made funding PERS Oregon’s top financial priority.

Oregon’s legislatively adopted budget for the 2011 – 2013 biennium provides $7.5 billion to PERS, an increase of $1 billion from the prior biennium.   To pay for that increase, the money available for Oregon’s other governmental agencies was reduced.  That reduction in funds has forced public agencies to cut back the services they could provide.

If the governor applied the same analysis to PERS that he used for capital punishment, he would find that Oregon PERS is compromised, inequitable, expensive and an unworkable system that clearly fails to meet the basic standards of justice.  Unlike people subject to capital punishment, however, the people of Oregon do not have the benefit of independent representation when PERS laws are made because most of the legislators are PERS members.  And they do not have the benefit of independent judges in PERS cases because all Oregon judges are PERS members.

Governor Kitzhaber was in the Oregon legislature from 1979 through 1993.  Many of the unjust PERS changes imposed upon the people of Oregon by PERS legislators occurred on his watch.  The governor is correct that Oregon’s policy on capital punishment must be decided by the people of Oregon.  It is equally correct that Oregon’s policy on PERS reform must be decided by the people of Oregon and not by less than 100 PERS members in the Oregon legislature and on the Oregon Supreme Court.


About Dan Re

I am an attorney who has lived in Bend and practiced law since 1981. In educating myself about the Oregon Public Employees Retirement System (PERS), I was shocked at how the PERS laws were changed by the legislature, once legislators were allowed to join PERS in 1971, 26 years after PERS was first created. Those changes personally benefitted the legislators who made them at the direct financial expense of the people they were elected to represent. That is wrong and I intend to change it. In 2009, I started a non-profit 501(c)(4) corporation, In RE The People, Inc., for the purpose of informing concerned citizens of what happened regarding PERS and other issues of social and civic importance. I then created this blog to further that objective.
This entry was posted in Oregon judges, Oregon legislators, Oregon legislature, Oregon PERS, PERS Pick Up and tagged , , , , . Bookmark the permalink.

2 Responses to Governor Kitzhaber, the Death Penalty and PERS

  1. Brian Weaver says:

    Hi Daniel,
    I’ve been following your fight against PERS, and I with you all the way. Are there any updates, or any way I can help?
    I live in Eugene and have joined in the fight against Lane Transit District’s much contested West Eugene EmX bus extension. I’ve also been watching the Columbia River Crossing circus, in that, after spending $130 million, the Cost Guard says the bridge is too low. Anyway, please put me on your up-date list.
    Brian Weaver
    West Eugene

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