John Kitzhaber And How He Retroactively Joined PERS

Governor Kitzhaber has been a longtime Oregon public official.  He was first elected to the Oregon legislature in 1979.  He served one term as a member of the Oregon House of Representatives and was then elected to the Oregon Senate where he served three terms, from 1981 through January 10, 1993.  From 1985 through 1992, he was the President of the Oregon Senate.  He was first elected Oregon’s Governor in 1995 and served two consecutive terms.  In 2011, he began his third term as Oregon’s Governor.  His current term expires in January, 2015.

When Governor Kitzhaber joined the legislature in 1979, he did not elect to become a PERS member.  PERS records also show that he was not a PERS member in 1983.  As a legislator, however, was very supportive of PERS benefit enhancements.  Among the many PERS bills he voted for was the creation of the PERS Pick Up in 1979 and the 1981 law that made the PERS Pick Up permanent.

Generally, an Oregon public employee automatically become PERS members after six months of service with a PERS participating employer.  The primary exception to this rule is for a person who is elected to office or who is appointed to an office with a fixed term, except for judges.  If an elected or appointed official other than judge wants to join PERS, that person must make an election within 30 days of taking office. Judges automatically become PERS members the instant they take office for the first time, unless they are over 72 years old on that date.

No persons other than legislators have ever been allowed to retroactively join PERS.  When PERS was first created in 1945 through 1970, legislators were not permitted to join.  That changed in 1971, when the Oregon Attorney General withdrew a prior opinion and ruled that legislators could join PERS.  Thereafter, the legislature passed two laws that gave its members short windows of time in which to retroactively join PERS.  The deadlines for retroactive joining of PERS under both of those laws has run, so both are now  inapplicable.

The first retroactive law for legislators was passed in 1975.  That law applied to persons who were both legislators and  PERS members and to persons who were not legislators but who had been legislators before January 13, 1975.  Under this law, a person to whom it applied could retroactively join PERS by paying the employee contributions that the person would have paid during the retroactive period before  July 1, 1977.  This law was passed with an Emergency Clause and became effective July 1, 1975.  The Emergency Clause stated that this law was necessary for the immediate preservation of the public peace, health and safety.  Apparently, the legislators believed that if they did not permitted themselves to retroactively join PERS either they would start rioting or the people of Oregon would start rioting or maybe both.  What a battle that would have been and it was one that probable should have taken place.

The second law that gave retroactive PERS membership rights to legislators was passed in 1987, when John Kitzhaber was the President of the Oregon Senate.  He was first elected to the legislature in 1979 and he had not joined PERS, so there no way that he could join PERS, let alone join it retroactively, in January, 1987.  So, he did the only thing that he could do to benefit from his past efforts to improve the PERS laws.  He worked with a majority of the other legislators and passed a law that made two specific, short-term changes to the law that allowed him to  retroactively join PERS.

  • The first change was to allow anyone who was a legislator between September 13, 1975 and December 31, 1987 to join PERS by giving written notice to the PERS Board before January 1, 1988.  Senator Kitzhaber qualified to join PERS under this provision and he did.
  • The second change was to allow anyone who was both a member of the legislature and a PERS member to  join PERS retroactively back to the first day they became a legislator if, before July 1, 1989, they paid all of the employee contributions that they would have paid during the retroactive period.  Since Senator Kitzhaber joined PERS under the first change he was now eligible under the second change to join PERS retroactively and he did.

This law was also passed with an Emergency Clause and it became effective July 1, 1987.

This proves that the old adage “Where there’s a will, there’s a way” is especially true for legislators.  It will be interesting to see how much money Governor Kitzhaber makes from his 1987 votes that allowed him to retroactively join PERS.  Those change gave him 14 years of PERS service as a legislator that he would not have otherwise had but for the 1987 changes.  One thing, though, is certain.  By including his 14 years as a legislator into his total years as a PERS members, his PERS retirement benefit will be significantly higher than would have been if he had not been able to retroactively join PERS as a legislator.

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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 legislators, Oregon legislature, Oregon PERS, PERS Pick Up and tagged , , , , . Bookmark the permalink.

4 Responses to John Kitzhaber And How He Retroactively Joined PERS

  1. R. Lofton says:

    I have a question. I see that one of the candidates for Attorney General for the May 15th primary is Ellen RosenBlum who is a retired judge, drawing PERS to the tune of $8000.00 plus per month. Now if she is elected Attorney General, I believe her salary would be over or close to $100,000 dollars per year, with somewhere in the neighborhood of $12000.00 going to PERS contribution. Is it possible for this to happen, and if so how do we stop it, short of her getting defeated in the election. This whole process is getting way out of hand with retirees returning to get another pers pension. Where does it stop??

    • Dan Re says:

      I am not sure exactly how Judge RosenBlum’s PERS retirement would eventually be computed if she was elected Attorney General and if she then elected to join PERS. With the exception of judges who automatically become PERS members when they take office, all other elected officials become PERS members only if they choose to join PERS. The one thing that is certain is that if she is elected AG and then joins PERS, her PERS retirement benefit would be higher than it is now. The only way to stop this would be for the legislature or the people of Oregon to prohibit persons elected to statewide offices from joining PERS and then getting the courts to approve that change. That won’t happen, in my opinion, until PERS lawsuit cannot be decided by judges who are PERS members. That is what I am trying to do through my lawsuit, Re v. PERS, that is currently pending in the Oregon Court of Appeals. I expect that my case will eventually be decided in federal court and that I will win.

  2. Alex P says:

    I agree that PERS needs reform. I personally do not think that elected officials should be allowed to benefit from PERS. I am curious as to what your sources are? I do not see any citations, I realize this is a blog and not a published paper but it would be nice for credibility.

    • Dan Re says:

      Alex, my sources for the blog post “John Kitzhaber And How He Retroactively Joined PERS” are the following:
      1. Records provided to me by PERS, in response to my public records requests, establishing that:
      a. Gov. Kitzhaber did not join PERS when first elected to the legislature in 1979 and that he was not a PERS member in 1983;
      b. Gov. Kitzhaber was a PERS member in 1989;
      c. PERS records now show that Gov. Kitzhaber is treated as having first joined PERS effective January 12, 1987;
      d. That Gov. Kitzhaber began making payments to PERS in March, 1988 and that his last payment to PERS was on June 2, 1989 and he is now treated as having joined PERS effective January 8, 1979.
      2. The Senate voting record on 1987 HB 2736 which shows that Gov. (then Senator) Kitzhaber voted for HB 2736.
      3. Section 16 of 1987 HB 2736, made two changes to the law that allowed Gov. Kitzhaber to retroactively join PERS:
      a. First, it changed the law to allow any person who was a legislator on or after September 13, 1975 and before January 1, 1988 to join PERS by giving notice to the PERS Board before January 1, 1988. Prior to this change, that provision only applied to persons who had been legislators between September 13, 1975 and November 1, 1979 who gave notice to the PERS Board before November 1, 1979. Since Gov. Kitzhaber had been a legislator before 1988, this change allowed him to join PERS and PERS records confirm that he did join at that time.
      b. Second, HB 2736 provided that any person who was a legislator and a PERS member could retroactively join PERS back to the first day that person became a legislator by paying to PERS, before July 1, 1989, the employee contribution the person would have paid, had he or she actually joined PERS on the first day the person became a legislator. Prior to that change, the payment to PERS had to be made before July 1, 1982. That, of course, was impossible to do in 1987. As a result of Gov. Kitzhaber joining PERS under the first change, he was then able to retroactively join PERS and the PERS records show that he did so. See 1.d. above which establishes that he made the required payments to PERS prior to the July 1, 1989 deadline.

      As you can see, the suppoting documentation for the blog post is very detailed and complex and so I don’t provide that in the post. I am happy, however, to explain the substantiation for any of my blog posts to anyone who requests it and I thank you for doing so. If you would like a copy of the documents I have referred to above, let me know and I will send them to you.

      Dan Re

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