72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1704
A-Engrossed
House Bill 2020
Ordered by the House April 24
Including House Amendments dated April 24
Sponsored by COMMITTEE ON PUBLIC EMPLOYEES RETIREMENT SYSTEM
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Establishes { - Public Employee Successor - } { + Fair + }
Retirement Plan for persons hired on or after { - January 1,
2004 - } { + July 1, 2003 + }, who have not established
membership in Public Employees Retirement System before
{ - January 1, 2004 - } { + July 1, 2003. Specifies Fair
Retirement Plan is part of Public Employees Retirement System
administered by Public Employees Retirement Board + }. Provides
that
{ - successor - } { + Fair Retirement + } Plan be defined
contribution plan.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to public employee successor retirement plan; creating
new provisions; amending ORS 192.502, 196.165, 236.620,
238.035, 238.156, 238.445, 238.618, 238.630, 238.645, 238.650,
238.700, 238.705, 238.710, 238.715, 238.750, 243.800, 243.830,
243.930, 268.240, 338.135, 341.290, 353.117, 353.250, 377.836,
396.330, 576.306 and 777.775; appropriating money; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
DEFINITIONS + }
SECTION 1. { + For the purposes of sections 1 to 20 of this
2003 Act:
(1) 'Board' means the Public Employees Retirement Board.
(2) 'Employee' means an employee as described in ORS 238.005.
(3) 'Fair plan' means the Fair Retirement Plan established
under sections 1 to 20 of this 2003 Act.
(4) 'Fair plan member' means a person who has established
membership in the fair plan under section 6 or 17 of this 2003
Act.
(5) 'Firefighter' means:
(a) A person employed by a local government, as defined in ORS
174.116, whose primary job duties include the fighting of fires;
(b) The State Fire Marshal, the chief deputy state fire marshal
and deputy state fire marshals; and
(c) An employee of the State Forestry Department who is
certified by the State Forester as a professional wildland
firefighter and whose primary duties include the abatement of
uncontrolled fires as described in ORS 477.064.
(6) 'Participating public employer' means a public employer as
defined in ORS 238.005 that participates in the system.
(7) 'Police officer' means:
(a) Employees of the Department of State Police who are
classified as police officers by the Superintendent of State
Police.
(b) Sheriffs and those deputy sheriffs or other employees of a
sheriff whose duties, as classified by the sheriff, are the
regular duties of police officers or corrections officers.
(c) Police chiefs and police personnel of a city who are
classified as police officers by the city council or other
governing body of the city.
(d) Corrections officers as defined in ORS 181.610.
(e) Employees at youth correction facilities, as defined in ORS
420.005, whose primary job description involves the custody,
control, treatment, investigation or supervision of juveniles
placed in those facilities.
(8) 'System' means the Public Employees Retirement System. + }
{ +
FAIR RETIREMENT PLAN + }
SECTION 2. { + (1) The Fair Retirement Plan is established.
Notwithstanding any provision of ORS chapter 238, any person who
is employed by a participating public employer on or after July
1, 2003, and who has not established membership in the Public
Employees Retirement System before July 1, 2003, is entitled to
receive only the benefits provided under the fair plan for
periods of service with participating public employers on and
after July 1, 2003, and has no right or claim to any benefit
under ORS chapter 238, except as specifically provided by
sections 1 to 20 of this 2003 Act. A person who establishes
membership in the Public Employees Retirement System before July
1, 2003, is entitled to receive the benefits provided by ORS
chapter 238.
(2) A person establishes membership in the system before July
1, 2003, for the purposes of this section if:
(a) The person is a member of the system, or a judge member of
the system, on June 30, 2003; or
(b) The person performed any period of service for a
participating public employer before July 1, 2003, that is
credited to the six-month period of employment required of an
employee under ORS 238.015 before an employee may become a member
of the system.
(3) Except as provided in sections 1 to 20 of this 2003 Act,
ORS chapter 238 does not apply to the fair plan.
(4) The provisions of this section do not apply to a person
elected or appointed as a member of the Legislative Assembly or
as a judge of the Supreme Court, the Court of Appeals, the Oregon
Tax Court or a circuit court. + }
{ +
ADMINISTRATION + }
SECTION 3. { + Fair Retirement Plan administered by Public
Employees Retirement Board. (1) The Fair Retirement Plan is part
of the Public Employees Retirement System, and is administered by
the Public Employees Retirement Board.
(2) The board shall contract with a private sector firm for the
record-keeping and customer service functions of the Fair
Retirement Plan. The board shall seek a firm that has economical
pricing structures and the experience, knowledge and facilities
to properly perform the functions specified in this subsection.
(3) ORS 238.035, 238.156, 238.445, 238.600, 238.601, 238.615,
238.618, 238.630, 238.635, 238.640, 238.645, 238.650, 238.655,
238.700, 238.705, 238.710 and 238.715 apply to the fair plan.
(4) Amounts contributed by or on behalf of fair plan members
shall be held separate and distinct from the General Fund and the
Public Employees Retirement Fund, but may be commingled with the
assets of the Public Employees Retirement Fund for investment
purposes. + }
SECTION 4. { + Administrative costs of Fair Retirement Plan.
(1) The Public Employees Retirement Board shall implement and
administer sections 1 to 20 of this 2003 Act so that:
(a) No expense is incurred by participating public employers or
by the Public Employees Retirement Fund for the implementation
and administration of the Fair Retirement Plan; and
(b) Participating public employers and the Public Employees
Retirement System incur no liabilities other than those
liabilities that are imposed under sections 1 to 20 of this 2003
Act or other law.
(2) The Public Employees Retirement System may assess a charge
against the member account of a fair plan member. Funds collected
pursuant to the charge are continuously appropriated to the board
and may be used only to cover the costs incurred by the system to
implement and administer the fair plan. + }
{ +
PARTICIPATION BY PUBLIC EMPLOYERS + }
SECTION 5. { + Participation generally. (1) All public
employers participating in the Public Employees Retirement System
on July 1, 2003:
(a) Shall continue to be participating public employers for the
purposes of the Fair Retirement Plan; and
(b) Shall provide benefits under the fair plan for employees
who are members of the plan.
(2) Any participating public employer that provided retirement
benefits under ORS chapter 238 for some, but not all, of the
employees of the participating public employer on June 30, 2003,
need not provide benefits under the fair plan for any class of
employees who were not members of the system on June 30, 2003.
(3) Any public employer that is not a participating public
employer on June 30, 2003, may become a participating public
employer under the fair plan. A public employer may become a
participating public employer under this subsection only for the
purposes of service performed by employees of the public employer
on or after the date the public employer elects to participate in
the fair plan. + }
{ +
MEMBERSHIP + }
SECTION 6. { + Establishing membership in Fair Retirement
Plan; member account. (1) Any person who is employed by a
participating public employer on or after July 1, 2003, and who
has not established membership in the Public Employees Retirement
System before July 1, 2003, as described in section 2 of this
2003 Act, becomes a Fair Retirement Plan member after completing
six full calendar months of employment, unless the employee
elects not to become a member. The six-month probationary period
may not be interrupted by more than 30 consecutive working days.
(2) Unless the employee elects not to become a member, upon
completion of the six-month probationary period required by this
section, an employee shall become a member of the fair plan on
the first day of next full month following the six-month period.
(3) Upon a person becoming a fair plan member under this
section, the Public Employees Retirement Board shall create a
member account for the person. The member account shall consist
of employee contributions made under section 7 of this 2003 Act
and employer contributions made under section 8 of this 2003 Act,
adjusted to reflect any earnings or losses on those
contributions. + }
{ +
CONTRIBUTIONS + }
SECTION 7. { + Employee contribution. (1) A fair plan member
may elect to make an employee contribution to the Fair Retirement
Plan equal to a specific percentage of the fair plan member's
salary. The percentage may not be more than the amount allowed
by the federal law governing the plan's tax qualification and
must be a whole number.
(2) A participating public employer may not assume or pay the
employee contribution provided for in this section, except that a
public employer may structure the compensation of the employee in
a manner that allows a fair plan member who is employed by the
public employer to make the employee contribution on a pretax
basis. + }
SECTION 8. { + Employer contributions. (1) A participating
public employer must contribute to the Fair Retirement Plan a
base amount equal to three percent of the salary of each fair
plan member employed by the employer. The base amount must be
contributed for all members, without regard to whether the
employee makes any contributions under section 7 of this 2003
Act.
(2) In addition to the base amount required under subsection
(1) of this section, for a fair plan member who is not a police
officer or firefighter, a participating public employer must make
contributions equal to one percent of a fair plan member's salary
for every two percent of salary contributed by the fair plan
member under section 7 of this 2003 Act. In no event may the
total contribution by the employer for a fair plan member who is
not a police officer or firefighter exceed an amount equal to six
percent of the fair plan member's salary.
(3) In addition to the base amount required under subsection
(1) of this section, for a fair plan member who is a police
officer or firefighter, a participating public employer who
employs the fair plan member as a police officer or firefighter
must make contributions equal to one and one-third percent of a
fair plan member's salary for every two percent of salary
contributed by the fair plan member under section 7 of this 2003
Act. However, if a fair plan member who is a police officer or
firefighter contributes six percent of salary, the total employer
contribution shall be an amount equal to 7.15 percent of salary.
In no event may the total contribution by the employer for a fair
plan member who is a police officer or firefighter exceed an
amount equal to 7.15 percent of salary. + }
SECTION 9. { + Salary defined. (1) For the purpose of
computing employer and employee contributions under sections 7
and 8 of this 2003 Act, 'salary' means the remuneration paid to a
fair plan member in return for service to the participating
public employer, including remuneration in the form of living
quarters, board or other items of value, to the extent the
remuneration is includable in the employee's taxable income under
Oregon law. 'Salary ' includes the additional amounts specified
in subsection (2) of this section, but does not include the
amounts specified in subsection (3) of this section, regardless
of whether those amounts are includable in taxable income.
(2) 'Salary' includes the following amounts:
(a) Payments of employee and employer money into a deferred
compensation plan that are made at the election of the employee.
(b) Contributions to a tax-sheltered or deferred annuity that
are made at the election of the employee.
(c) Any amount that is contributed to a cafeteria plan or
qualified transportation fringe benefit plan by the employer at
the election of the employee and that is not includable in the
taxable income of the employee by reason of 26 U.S.C. 125 or
132(f)(4), as in effect on the effective date of this 2003 Act.
(d) Retroactive payments made to an employee to correct a
clerical error, pursuant to an award by a court or by order of or
pursuant to a conciliation agreement with an administrative
agency charged with enforcing federal or state law protecting the
employee's rights to employment or wages, which shall be
allocated to and deemed paid in the periods in which the work was
done or in which the work would have been done.
(3) 'Salary' does not include the following amounts:
(a) Money paid for overtime or bonuses.
(b) Travel expenses or any other expenses incidental to an
employer's business that are reimbursed by the employer.
(c) Payments made on account of an employee's death.
(d) Any lump sum payment for accumulated unused sick leave,
vacation leave or other paid leave.
(e) Any accelerated payment of an employment contract for a
future period or any advance against future wages.
(f) Any retirement incentive, retirement severance pay,
retirement bonus or retirement gratuitous payment.
(g) Payment for a leave of absence after the date the employer
and employee have agreed that no future service will be
performed.
(h) Payments for instructional services rendered to
institutions of the Department of Higher Education or the Oregon
Health and Science University when those services are in excess
of full-time employment subject to sections 1 to 20 of this 2003
Act. A person employed under a contract for less than 12 months
is subject to this paragraph only for the months covered by the
contract.
(i) Any amount in excess of $200,000 for a calendar year. If
any period over which salary is determined is less than 12
months, the $200,000 limitation for that period shall be
multiplied by a fraction, the numerator of which is the number of
months in the determination period and the denominator of which
is 12. The Public Employees Retirement Board shall adopt rules
adjusting this dollar limit to incorporate adjustments authorized
by the Internal Revenue Service. + }
SECTION 10. { + Collective bargaining agreements.
Notwithstanding section 7 of this 2003 Act, if a participating
public employer is paying employee contributions for employees of
the public employer pursuant to ORS 238.205 under a collective
bargaining agreement in effect July 1, 2003, the public employer
shall continue to make those contributions under the Fair
Retirement Plan until such time as the term of the agreement
expires. Upon the expiration of the collective bargaining
agreement, the participating public employer may not thereafter
'pick-up,' assume or pay the employee contributions. + }
{ +
VESTING + }
SECTION 11. { + Vesting; loans. (1) A fair plan member vests
in employee contributions when the contributions are made.
(2) A fair plan member vests in employer contributions when
employer contributions have been made on behalf of the member in
each of 54 consecutive months.
(3) The Public Employees Retirement Board shall establish a
mechanism under which a fair plan member may borrow amounts from
the member account established under section 6 of this 2003 Act.
A member may borrow only from amounts in which the member has
become vested under this section. The board shall limit loans to
terms and conditions allowed under the tax qualification of the
Fair Retirement Plan. + }
{ +
INVESTMENT OF MONEYS IN MEMBER ACCOUNTS + }
SECTION 12. { + Investment program. (1) The Oregon Investment
Council shall establish a program for investment of moneys in
fair plan member accounts. The program shall include policies and
procedures for the investment of moneys in the accounts. The
program and all investments of moneys under the program are
subject to the provisions of ORS 293.701 to 293.820.
(2) The council shall provide to the Public Employees
Retirement Board a description, set forth in the council's
policies and procedures, of the investment options for moneys in
fair plan member accounts, the applicable benchmark for each
option and a description of the characteristics of each
benchmark. The council shall provide at least nine different
investment options with a range of investment risks.
(3) The provisions of ORS chapter 59 that require registration
of securities do not apply to any share, participation or other
interest under the investment program established under this
section. The provisions of ORS chapter 59 that require licensing
of certain persons as broker-dealers or as investment advisors do
not apply to any of the following persons or entities for the
purposes of implementing and administering the investment program
established under this section:
(a) The Oregon Investment Council.
(b) The Public Employees Retirement Board.
(c) The Public Employees Retirement System.
(d) The State Treasurer.
(e) Any officer or employee of the persons or entities
described in paragraphs (a) to (d) of this subsection. + }
SECTION 13. { + Self-direction of investments. A fair plan
member may elect any investment option offered under the
investment program established under section 12 of this 2003 Act
for all or part of the moneys in a member account. The Public
Employees Retirement Board by rule shall provide for the manner
in which changes in investment options may be made by a fair plan
member. + }
{ +
WITHDRAWAL OF MEMBER ACCOUNT + }
SECTION 14. { + Account may be withdrawn by inactive member at
any time after leaving public employment. (1) An inactive fair
plan member may withdraw the member's account at any time.
(2) Withdrawal of a member account under this section cancels
all membership rights in the Fair Retirement Plan.
(3) If a fair plan member withdraws the member account and is
subsequently reemployed by a participating public employer, the
person may reestablish membership under the fair plan only for
the purposes of service performed after the person is reemployed.
(4) A fair plan member is inactive for the purposes of this
section if the member is separated from all service with
participating public employers and with employers that are
treated as part of a participating public employer's controlled
group under the federal laws and rules governing the status of
the fair plan as a qualified governmental retirement plan and
trust. + }
{ +
DEATH BENEFIT + }
SECTION 15. { + Death benefit. (1) If a fair plan member dies
before retiring, the Public Employees Retirement Board shall pay
all money credited at the time of death to the member account of
the member in which the member has become vested under section 11
of this 2003 Act to one or more beneficiaries designated by the
member. A fair plan member may designate as a beneficiary any
person, including the personal representative for the estate of
the member or a trustee named by the member. The withdrawal of a
member's account under section 14 of this 2003 Act invalidates
any designation of a beneficiary under this section.
(2) If a fair plan member dies before retiring and has not
designated a beneficiary under subsection (1) of this section,
the board shall pay all money credited at the time of death to
the member account of the member in which the member has become
vested under section 11 of this 2003 Act to the personal
representative appointed for the estate of the deceased member.
If an affidavit has been filed under ORS 114.505 to 114.560 and
the amount of payment does not exceed the maximum amount of
personal property for which an affidavit may be filed under ORS
114.505 to 114.560, the board shall pay the amount to the person
who filed the affidavit.
(3) If a fair plan member dies before retiring and has
designated a beneficiary under subsection (1) of this section,
but the beneficiary dies before the member or dies before
distribution is made under this section, the board shall pay the
amount of money that would otherwise have been paid to the
beneficiary to the personal representative appointed for the
estate of the deceased beneficiary. If an affidavit has been
filed under ORS 114.505 to 114.560 and the amount of money that
would have been paid to the beneficiary does not exceed the
maximum amount of personal property for which an affidavit may be
filed under ORS 114.505 to 114.560, the board shall pay the
amount to the person who filed the affidavit on behalf of the
estate of the beneficiary.
(4) Payment by the board of a death benefit in the manner
provided by this section completely discharges the board and the
Public Employees Retirement System from any liability for amounts
owing by reason of the death of a fair plan member. + }
{ +
BENEFITS UPON RETIREMENT + }
SECTION 16. { + Annuities and other payout options. The Public
Employees Retirement Board shall by rule provide for annuities
and other payout options for retired fair plan members. Annuities
offered by the board may be fixed or variable. The board may not
offer any annuity or other payout option that would require that
a participating public employer make any contribution beyond the
contributions required by section 8 of this 2003 Act. The board
may not allow a fair plan member to receive an annuity or other
payout before the member reaches the minimum retirement age
provided for in the plan's tax qualification. The board shall
ensure that minimum distribution requirements imposed under the
plan's tax qualification are met. + }
{ +
CONVERSION TO FAIR RETIREMENT PLAN + }
SECTION 17. { + (1) Any employee who establishes membership in
the Public Employees Retirement System before July 1, 2003, as
described in section 2 of this 2003 Act, and who is an active
member of the system, as defined in ORS 238.005, may elect to
convert the employee's retirement benefit to the Fair Retirement
Plan. Upon conversion, the amounts in the regular account
established for the employee under ORS 238.250, along with a
matching amount funded by employer contributions, and any amounts
in the variable account established for the employee under ORS
238.260 shall be transferred to a member account established for
the employee under section 6 of this 2003 Act.
(2) If the Public Employees Retirement Board is informed by the
Oregon Investment Council that the number of conversions elected
under this section could negatively affect the Public Employees
Retirement Fund, the board may require that amounts be
transferred under this section in not more than five annual
installments. Interest shall be paid on the amounts not
immediately transferred at a rate established by the board. + }
{ +
BENEFIT INCREASES + }
SECTION 18. { + Local government approval of benefit
increases. (1) Any benefit increase that is described in
subsection (2) of this section, and that is provided for by laws
that become effective on or after the effective date of this 2003
Act, applies to participating public employers other than the
state only if the benefit increase is approved in writing by the
participating public employer. Written approval of the benefit
increase must be delivered to the Public Employees Retirement
Board within three months after the session of the Legislative
Assembly that enacted the benefit increase adjourns sine die. If
the benefit increase is approved in the manner provided by this
section, the benefit increase becomes operative on January 1 of
the next calendar year.
(2) The provisions of this section apply to any change to the
benefits provided under sections 1 to 20 of this 2003 Act that is
the result of laws enacted during a single legislative session,
excluding any change that is made solely to maintain the status
of the Fair Retirement Plan as a tax-qualified governmental plan,
if the change results in an increase in the total liability for
benefits under the fair plan, whether funded or not funded, that
is in excess of one-tenth of one percent. + }
{ +
CONTRACT RIGHTS + }
SECTION 19. { + Except as provided in section 18 of this 2003
Act, nothing in sections 1 to 20 of this 2003 Act prevents the
Legislative Assembly or the Public Employees Retirement Board
from changing or terminating the retirement benefits payable to
persons who become Fair Retirement Plan members on or after July
1, 2003, as described in section 2 of this 2003 Act, as long as
the change or termination applies only to benefits accruing on or
after the date the change or termination is effective. + }
{ +
TAX QUALIFICATION + }
SECTION 20. { + (1) Except as provided in this section, this
2003 Act becomes operative on July 1, 2003.
(2) As soon as possible after the effective date of this 2003
Act, the Public Employees Retirement Board shall submit the
provisions of sections 1 to 20 of this 2003 Act to the Internal
Revenue Service and seek approval of sections 1 to 20 of this
2003 Act as a qualified governmental retirement plan and trust
under the Internal Revenue Code.
(3) As soon as possible after the effective date of this 2003
Act, the Public Employees Retirement Board shall adopt all rules
necessary for the implementation and operation of the Fair
Retirement Plan. + }
{ +
DIRECT REVIEW BY SUPREME COURT + }
SECTION 21. { + (1) Jurisdiction is conferred on the Supreme
Court to determine in the manner provided by this section whether
the provisions of this 2003 Act breach any contract between
members of the Public Employees Retirement System and their
employers, or violate any constitutional provision, including but
not limited to impairment of contract rights of members of the
Public Employees Retirement System under section 21, Article I of
the Oregon Constitution, or clause 1, section 10, Article I of
the United States Constitution.
(2) Under the jurisdiction conferred in subsection (1) of this
section, any person aggrieved by the provisions of this 2003 Act
may petition the Supreme Court for review. The petition must
state the facts showing how the petitioner is aggrieved and the
constitutional grounds upon which the petition is based. The
Supreme Court shall give priority on its docket to a petition for
review filed under this section and shall expedite a decision on
the petition. Any and all petitions filed under this section
alleging a similar basis or bases of challenge may be
consolidated by the Supreme Court upon its own motion. The
petitioner must serve a copy of the petition on the Attorney
General.
(3) A person petitioning for review under this section is not
required to exhaust administrative remedies or file in any other
court prior to filing a petition for review under this section.
(4) A petition for review under this section must be filed
before January 1, 2004.
(5) A petition for review under this section must present a
justiciable controversy.
(6) The petition for review provided for in this section is in
addition to any other remedy or procedure that may be available
to determine whether the provisions of this 2003 Act violate any
constitutional provision.
(7) Any public employer participating in the Public Employees
Retirement System may intervene in any proceeding commenced under
this section.
(8) If the Supreme Court determines that factual determinations
are necessary for resolution of a proceeding commenced under this
section, the Supreme Court may appoint a special master to hear
evidence and prepare proposed findings of fact. If the Supreme
Court appoints a special master, the court shall allow the
parties to conduct discovery under ORCP 36 to 46. + }
{ +
CONFORMING AMENDMENTS + }
SECTION 22. ORS 192.502 is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy.
(3)(a) Public body employee or volunteer addresses, dates of
birth and telephone numbers contained in personnel records
maintained by the public body that is the employer or the
recipient of volunteer services. This exemption does not apply:
(A) To such employees or volunteers if they are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(B) To such employees or volunteers to the extent that the
party seeking disclosure shows by clear and convincing evidence
that the public interest requires disclosure in a particular
instance; or
(C) To a substitute teacher as defined in ORS 342.815 when
requested by a professional education association of which the
substitute teacher may be a member.
(b) Nothing in this subsection exempting employee records from
disclosure relieves a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapter 238 and ORS 238.410 { + and sections 1 to 20 of this
2003 Act + }.
(13) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption.
(14) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(15) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(16) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Growth Account
Board, the Port of Portland or other ports, as defined in ORS
777.005, by applicants for investment funds, loans or services
including, but not limited to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(17) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(18) All information supplied by a person under ORS 151.430 to
151.491 for the purpose of requesting court-appointed counsel,
and all information supplied to the State Court Administrator
from whatever source for the purpose of verifying indigency of a
person pursuant to ORS 151.430 to 151.491.
(19) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(20) Sensitive business records or financial or commercial
information of the Oregon Health and Science University that is
not customarily provided to business competitors.
(21) Records of Oregon Health and Science University regarding
candidates for the position of president of the university.
(22) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron.
(23) The following records, communications and information
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence requested to be confidential.
(k) Tenant files relating to certification.
(L) Housing assistance payment requests.
(24) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(25) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(26) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district may make customer records
available to third party credit agencies on a regular basis in
connection with the establishment and management of customer
accounts or in the event such accounts are delinquent.
(28) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(29) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
(30) Documents, materials or other information submitted to the
Director of the Department of Consumer and Business Services in
confidence by a state, federal, foreign or international
regulatory or law enforcement agency or by the National
Association of Insurance Commissioners, its affiliates or
subsidiaries under ORS 646.380 to 646.396, 697.005 to 697.095,
697.602 to 697.842, 705.137, 717.200 to 717.320, 717.900 or
717.905, ORS chapter 59, 722, 723, 725 or 726, the Bank Act or
the Insurance Code when:
(a) The document, material or other information is received
upon notice or with an understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source
of the document, material or other information; and
(b) The director has obligated the Department of Consumer and
Business Services not to disclose the document, material or other
information.
(31) A county elections security plan developed and filed under
ORS 254.074.
SECTION 23. ORS 192.502, as amended by sections 80 and 81,
chapter 962, Oregon Laws 2001, is amended to read:
192.502. The following public records are exempt from
disclosure under ORS 192.410 to 192.505:
(1) Communications within a public body or between public
bodies of an advisory nature to the extent that they cover other
than purely factual materials and are preliminary to any final
agency determination of policy or action. This exemption shall
not apply unless the public body shows that in the particular
instance the public interest in encouraging frank communication
between officials and employees of public bodies clearly
outweighs the public interest in disclosure.
(2) Information of a personal nature such as but not limited to
that kept in a personal, medical or similar file, if the public
disclosure thereof would constitute an unreasonable invasion of
privacy, unless the public interest by clear and convincing
evidence requires disclosure in the particular instance. The
party seeking disclosure shall have the burden of showing that
public disclosure would not constitute an unreasonable invasion
of privacy.
(3)(a) Public body employee or volunteer addresses, dates of
birth and telephone numbers contained in personnel records
maintained by the public body that is the employer or the
recipient of volunteer services. This exemption does not apply:
(A) To such employees or volunteers if they are elected
officials, except that a judge or district attorney subject to
election may seek to exempt the judge's or district attorney's
address or telephone number, or both, under the terms of ORS
192.445;
(B) To such employees or volunteers to the extent that the
party seeking disclosure shows by clear and convincing evidence
that the public interest requires disclosure in a particular
instance; or
(C) To a substitute teacher as defined in ORS 342.815 when
requested by a professional education association of which the
substitute teacher may be a member.
(b) Nothing in this subsection exempting employee records from
disclosure relieves a public employer of any duty under ORS
243.650 to 243.782.
(4) Information submitted to a public body in confidence and
not otherwise required by law to be submitted, where such
information should reasonably be considered confidential, the
public body has obliged itself in good faith not to disclose the
information, and when the public interest would suffer by the
disclosure.
(5) Information or records of the Department of Corrections,
including the State Board of Parole and Post-Prison Supervision,
to the extent that disclosure thereof would interfere with the
rehabilitation of a person in custody of the department or
substantially prejudice or prevent the carrying out of the
functions of the department, if the public interest in
confidentiality clearly outweighs the public interest in
disclosure.
(6) Records, reports and other information received or compiled
by the Director of the Department of Consumer and Business
Services in the administration of ORS chapters 723 and 725 not
otherwise required by law to be made public, to the extent that
the interests of lending institutions, their officers, employees
and customers in preserving the confidentiality of such
information outweighs the public interest in disclosure.
(7) Reports made to or filed with the court under ORS 137.077
or 137.530.
(8) Any public records or information the disclosure of which
is prohibited by federal law or regulations.
(9) Public records or information the disclosure of which is
prohibited or restricted or otherwise made confidential or
privileged under Oregon law.
(10) Public records or information described in this section,
furnished by the public body originally compiling, preparing or
receiving them to any other public officer or public body in
connection with performance of the duties of the recipient, if
the considerations originally giving rise to the confidential or
exempt nature of the public records or information remain
applicable.
(11) Records of the Energy Facility Siting Council concerning
the review or approval of security programs pursuant to ORS
469.530.
(12) Employee and retiree address, telephone number and other
nonfinancial membership records and employee financial records
maintained by the Public Employees Retirement System pursuant to
ORS chapter 238 and ORS 238.410 { + and sections 1 to 20 of this
2003 Act + }.
(13) Records submitted by private persons or businesses to the
State Treasurer or the Oregon Investment Council relating to
proposed acquisition, exchange or liquidation of public
investments under ORS chapter 293 may be treated as exempt from
disclosure when and only to the extent that disclosure of such
records reasonably may be expected to substantially limit the
ability of the Oregon Investment Council to effectively compete
or negotiate for, solicit or conclude such transactions. Records
which relate to concluded transactions are not subject to this
exemption.
(14) The monthly reports prepared and submitted under ORS
293.761 and 293.766 concerning the Public Employees Retirement
Fund and the Industrial Accident Fund may be uniformly treated as
exempt from disclosure for a period of up to 90 days after the
end of the calendar quarter.
(15) Reports of unclaimed property filed by the holders of such
property to the extent permitted by ORS 98.352.
(16) The following records, communications and information
submitted to the Oregon Economic and Community Development
Commission, the Economic and Community Development Department,
the State Department of Agriculture, the Oregon Growth Account
Board, the Port of Portland or other ports, as defined in ORS
777.005, by applicants for investment funds, loans or services
including, but not limited to, those described in ORS 285A.224:
(a) Personal financial statements.
(b) Financial statements of applicants.
(c) Customer lists.
(d) Information of an applicant pertaining to litigation to
which the applicant is a party if the complaint has been filed,
or if the complaint has not been filed, if the applicant shows
that such litigation is reasonably likely to occur; this
exemption does not apply to litigation which has been concluded,
and nothing in this paragraph shall limit any right or
opportunity granted by discovery or deposition statutes to a
party to litigation or potential litigation.
(e) Production, sales and cost data.
(f) Marketing strategy information that relates to applicant's
plan to address specific markets and applicant's strategy
regarding specific competitors.
(17) Records, reports or returns submitted by private concerns
or enterprises required by law to be submitted to or inspected by
a governmental body to allow it to determine the amount of any
transient lodging tax payable and the amounts of such tax payable
or paid, to the extent that such information is in a form which
would permit identification of the individual concern or
enterprise. Nothing in this subsection shall limit the use which
can be made of such information for regulatory purposes or its
admissibility in any enforcement proceedings. The public body
shall notify the taxpayer of the delinquency immediately by
certified mail. However, in the event that the payment or
delivery of transient lodging taxes otherwise due to a public
body is delinquent by over 60 days, the public body shall
disclose, upon the request of any person, the following
information:
(a) The identity of the individual concern or enterprise that
is delinquent over 60 days in the payment or delivery of the
taxes.
(b) The period for which the taxes are delinquent.
(c) The actual, or estimated, amount of the delinquency.
(18) All information supplied by a person under ORS 151.485 for
the purpose of requesting appointed counsel, and all information
supplied to the court from whatever source for the purpose of
verifying the financial eligibility of a person pursuant to ORS
151.485.
(19) Workers' compensation claim records of the Department of
Consumer and Business Services, except in accordance with rules
adopted by the Director of the Department of Consumer and
Business Services, in any of the following circumstances:
(a) When necessary for insurers, self-insured employers and
third party claim administrators to process workers' compensation
claims.
(b) When necessary for the director, other governmental
agencies of this state or the United States to carry out their
duties, functions or powers.
(c) When the disclosure is made in such a manner that the
disclosed information cannot be used to identify any worker who
is the subject of a claim.
(d) When a worker or the worker's representative requests
review of the worker's claim record.
(20) Sensitive business records or financial or commercial
information of the Oregon Health and Science University that is
not customarily provided to business competitors.
(21) Records of Oregon Health and Science University regarding
candidates for the position of president of the university.
(22) The records of a library, including circulation records,
showing use of specific library material by a named person or
consisting of the name of a library patron together with the
address or telephone number, or both, of the patron.
(23) The following records, communications and information
submitted to the Housing and Community Services Department by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns.
(b) Credit reports.
(c) Project appraisals.
(d) Market studies and analyses.
(e) Articles of incorporation, partnership agreements and
operating agreements.
(f) Commitment letters.
(g) Project pro forma statements.
(h) Project cost certifications and cost data.
(i) Audits.
(j) Project tenant correspondence requested to be confidential.
(k) Tenant files relating to certification.
(L) Housing assistance payment requests.
(24) Raster geographic information system (GIS) digital
databases, provided by private forestland owners or their
representatives, voluntarily and in confidence to the State
Forestry Department, that is not otherwise required by law to be
submitted.
(25) Sensitive business, commercial or financial information
furnished to or developed by a public body engaged in the
business of providing electricity or electricity services, if the
information is directly related to a transaction described in ORS
261.348, or if the information is directly related to a bid,
proposal or negotiations for the sale or purchase of electricity
or electricity services, and disclosure of the information would
cause a competitive disadvantage for the public body or its
retail electricity customers. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(26) Sensitive business, commercial or financial information
furnished to or developed by the City of Klamath Falls, acting
solely in connection with the ownership and operation of the
Klamath Cogeneration Project, if the information is directly
related to a transaction described in ORS 225.085 and disclosure
of the information would cause a competitive disadvantage for the
Klamath Cogeneration Project. This subsection does not apply to
cost-of-service studies used in the development or review of
generally applicable rate schedules.
(27) Personally identifiable information about customers of a
municipal electric utility or a people's utility district. The
utility or district may, however, release such information to a
third party if the customer consents in writing or
electronically, if the disclosure is necessary to render utility
or district services to the customer, or if the disclosure is
required pursuant to a court order. The utility or district may
charge as appropriate for the costs of providing such
information. The utility or district may make customer records
available to third party credit agencies on a regular basis in
connection with the establishment and management of customer
accounts or in the event such accounts are delinquent.
(28) A record of the street and number of an employee's address
submitted to a special district to obtain assistance in promoting
an alternative to single occupant motor vehicle transportation.
(29) Sensitive business records, capital development plans or
financial or commercial information of Oregon Corrections
Enterprises that is not customarily provided to business
competitors.
(30) Documents, materials or other information submitted to the
Director of the Department of Consumer and Business Services in
confidence by a state, federal, foreign or international
regulatory or law enforcement agency or by the National
Association of Insurance Commissioners, its affiliates or
subsidiaries under ORS 646.380 to 646.396, 697.005 to 697.095,
697.602 to 697.842, 705.137, 717.200 to 717.320, 717.900 or
717.905, ORS chapter 59, 722, 723, 725 or 726, the Bank Act or
the Insurance Code when:
(a) The document, material or other information is received
upon notice or with an understanding that it is confidential or
privileged under the laws of the jurisdiction that is the source
of the document, material or other information; and
(b) The director has obligated the Department of Consumer and
Business Services not to disclose the document, material or other
information.
(31) A county elections security plan developed and filed under
ORS 254.074.
SECTION 24. ORS 196.165 is amended to read:
196.165. (1) The Columbia River Gorge Commission established
under ORS 196.150 may designate its employees as employees and
the commission as an employer subject to the Oregon Public
Employees Retirement System under ORS chapter 238 { + and
sections 1 to 20 of this 2003 Act, + } or as an employer and
employees subject to a retirement system provided by the State of
Washington under the laws of the State of Washington.
(2) The commission may designate its employees as employees
eligible under benefit plans provided under ORS 243.105 to
243.285 or under benefit plans provided under the laws of the
State of Washington.
SECTION 25. ORS 236.620 is amended to read:
236.620. (1) A public employer who receives a transferred
employee under ORS 236.610 (1), including an employee whose
transfer is provided for by an agreement under ORS 190.010, shall
place that employee on its employee roster, subject to the
following:
(a) If the employee was serving a probationary period with the
employer at the time of transfer, the past service of the
employee on probation shall apply on the regular probation
requirements of the receiving employer.
(b) Notwithstanding any other provision of law applicable to a
retirement system for employees of the prior employer or of the
receiving employer, but subject to subsection (2) of this
section, the employee at the option of the employee may elect to
continue for 12 months under any retirement system in which the
employee was participating prior to transfer or, if the employee
meets the qualifications therefor, the employee may elect to
participate in the retirement system available to employees of
the receiving employer. The employee's election shall be in
writing and made within 30 days after the date of transfer. If
the employee elects to continue under the retirement system in
which the employee was participating prior to transfer, the
employee shall retain all rights and be entitled to all benefits
under that system, the employee shall continue to make
contributions to that system and the receiving employer shall
make contributions on behalf of the employee to that system as
required of employers participating in that system, as if the
transfer had not occurred.
(c) The employee shall retain the seniority the employee
accrued under prior employment, but no regular employee of the
receiving employer shall be demoted or laid off by reason of that
seniority at the time the transfer occurs. Thereafter, the
employee's seniority from the transferring employer shall be
regarded as seniority acquired under the receiving employer.
(d) The employee otherwise shall enjoy the same privileges,
including benefits, hours and conditions of employment, and be
subject to the same regulations as other employees of the
receiving employer.
(2) The Public Employees Retirement Board may terminate
membership in the Public Employees Retirement System for any
transferred employee if the board determines that allowing
membership for the employee would cause the system { - or - }
{ + and + } the Public Employees Retirement Fund { + or the
Fair Retirement Plan + } to lose qualification as { - a - }
qualified governmental retirement { - plan and trust - }
{ + plans and trusts + } under the Internal Revenue Code and
under regulations adopted pursuant to the Internal Revenue Code.
SECTION 26. ORS 238.035 is amended to read:
238.035. (1) A public employer that is not participating in the
system may, by application to the board, designate any class of
employees of the public employer to become members of the system
at the time of entering the system.
(2) The board shall consider an application received under this
section to be an application to become a participating employer
under this chapter { + and sections 1 to 20 of this 2003
Act + }, but only to the extent of providing membership for the
class of employees designated in the application.
(3) The board, upon such terms as are set forth in a contract
between the board and the employer, shall allow every employee in
the designated class to become members of the Public Employees
Retirement System in accordance with this chapter { + and
sections 1 to 20 of this 2003 Act + }. A contract entered into
under this section shall require the public employer to agree to
eventually contract to provide membership to all of the employees
who do not become members of the system at the time that the
employer becomes a participating employer.
(4) All employees who have completed the period of service with
the public employer that is required under ORS 238.015 { + or
section 6 of this 2003 Act + } shall become members of the system
on a date specified by the board. All other employees in the
designated class shall become members upon completion of the
required period of service.
(5) The contract provided for in subsection (3) of this section
may be in addition to or in lieu of a contract of integration
under ORS 238.680.
(6) An employer entering into a contract under subsection (3)
of this section may at any time thereafter enter into a contract
with the board to provide membership to all or part of the
employees who do not become members of the system at the time
that the employer becomes a participating employer. Except as may
be provided for prior service credit, or under a contract of
integration under ORS 238.680, employees shall receive no
retirement credit for the period during which the employee was
exempted from contributing to the fund { + or the Fair
Retirement Plan + } under the agreement, but the employee shall
be considered to have completed the six months' service required
for membership in the system if the employee has served with the
employer for at least six months. When the employee starts to
participate in the system the employer shall start to contribute
to the fund { + or the Fair Retirement Plan + } on account of
the employee in the same manner as the employer contributes on
account of other employees who are members of the system.
SECTION 27. ORS 238.156 is amended to read:
238.156. (1) Notwithstanding any other provision of this
chapter { + or sections 1 to 20 of this 2003 Act + }, but
subject to subsection (4) of this section, an employee who leaves
a position that meets the requirements of ORS 238.015 (4) { + ,
or any Fair Retirement Plan member who leaves a position with a
participating public employer, + } for the purpose of performing
service in the uniformed services is entitled to receive
contributions, benefits and service credit for the period under
rules adopted by the Public Employees Retirement Board pursuant
to subsection (2) of this section.
(2) The board shall adopt rules establishing contributions,
benefits and service credit for any period of service in the
uniformed services by an employee described in subsection (1) of
this section. For the purpose of adopting rules under this
subsection, the board shall consider and take into account all
federal law relating to contributions, benefits and service
credit for any period of service in the uniformed services.
Contributions, benefits and service credit under rules adopted by
the board pursuant to this subsection may not exceed
contributions, benefits and service credit required under federal
law for periods of service in the uniformed services.
(3) Subject to subsection (4) of this section, an employee who
leaves a position that meets the requirements of ORS 238.015
(4) { + , or any Fair Retirement Plan member who leaves a
position with a participating public employer, + } for the
purpose of entering or reentering active service in the Armed
Forces shall acquire retirement credit for the period during
which the employee served in the Armed Forces if:
(a) The employee returns to the service of the employer who
employed the employee immediately before commencing service in
the Armed Forces in a position that meets the requirements of ORS
238.015 (4) { + or, if the employee is a Fair Retirement Plan
member, in a position with a participating public employer + };
(b) The employee returns to that employment within one year
after being otherwise than dishonorably discharged from the Armed
Forces and within five years after the date that the employee
entered or reentered active service in the Armed Forces; and
(c) After returning to employment and before retirement, the
employee pays to the Public Employees Retirement Board in a lump
sum the total amount of contributions the employee would have
made throughout the period of military service in the Armed
Forces based on the employee's salary rate at the time the
employee entered or reentered the Armed Forces, as though the
employee had remained in the employment of the employer. Any lump
sum contribution made under this paragraph shall be added to the
employee's regular account and in all respects shall be
considered as though made by payroll deduction.
(4) An employee may not receive benefits under both subsections
(1) and (3) of this section for the same period of service in the
Armed Forces or uniformed services. If an employee is entitled to
benefits under both subsections (1) and (3) of this section by
the terms of those provisions, the employee shall receive
benefits under the subsection that provides the greater benefit.
(5) For the purposes of this section, 'Armed Forces' means the
Army, Navy, Air Force, Marine Corps and Coast Guard.
SECTION 28. ORS 238.445 is amended to read:
238.445. (1) Except as provided in this section, the right of a
person to a pension, an annuity or a retirement allowance, to the
return of contribution, the pension, annuity or retirement
allowance itself, any optional benefit or death benefit, or any
other right accrued or accruing to any person under the
provisions of this chapter { + or sections 1 to 20 of this 2003
Act + }, and the money in the various funds { + and accounts + }
created by ORS 238.660 and 238.670 { + and section 6 of this
2003 Act + }, shall be exempt from garnishment and all state,
county and municipal taxes heretofore or hereafter imposed,
except as provided under ORS chapter 118, shall not be subject to
execution, garnishment, attachment or any other process or to the
operation of any bankruptcy or insolvency law heretofore or
hereafter existing or enacted, and shall be unassignable.
(2) Subsection (1) of this section does not apply to state
personal income taxation of amounts paid under this chapter { +
and sections 1 to 20 of this 2003 Act + }.
(3) Unless otherwise ordered by a court under ORS 25.387, the
exemption from execution or other process granted under this
section applies to 75 percent of amounts paid under this chapter
{ + and sections 1 to 20 of this 2003 Act + } if the execution
or other process is issued for a support obligation or an order
or notice entered or issued under ORS chapter 25, 107, 108, 109,
110, 416, 419B or 419C.
SECTION 29. ORS 238.618 is amended to read:
238.618. Notwithstanding any other provision of law, the Public
Employees Retirement Board may deny or terminate participation by
an employer in the Public Employees Retirement System, and may
deny or terminate membership in the system for any employee, if
the board determines that allowing participation by the employer
or membership for the employee would cause the system
{ - or - } { + and + } the Public Employees Retirement Fund
{ + or the Fair Retirement Plan + } to lose qualification as a
qualified governmental retirement plan and trust under the
Internal Revenue Code and under regulations adopted pursuant to
the Internal Revenue Code.
SECTION 30. ORS 238.630 is amended to read:
238.630. (1) The governing authority of the system shall be a
board known as the Public Employees Retirement Board and
consisting of 12 members appointed by the Governor subject to
confirmation by the Senate in the manner provided in ORS 171.562
and 171.565. Except as otherwise provided in ORS 238.640, the
term of each member shall be three years.
(2) The board shall have:
(a) The powers and privileges of a corporation, including the
right to sue and be sued in its own name as such board; and
(b) The power and duty, subject to the limitations of this
chapter, of managing the system.
(3) The board:
(a) Shall, at its first meeting each year, designate one of its
members to serve as chair of the board for the remainder of the
year and until a successor is designated and takes that office;
(b) Shall arrange for actuarial service for the system;
(c) Shall employ a director;
(d) Shall create such other positions as it deems necessary to
sound and economical administration of the system, which
positions the director shall fill by appointment;
(e) Shall, with the approval of the Director of the Oregon
Department of Administrative Services, and as otherwise provided
by law, fix the salaries of all persons employed for purposes of
administering the system;
(f) Shall publish and distribute to all employer and employee
members of the system an annual report including a summary of
investments of moneys in the fund, investment earnings,
significant legislative or administrative changes in the system
and other pertinent information on the operation of the system
for the preceding year;
(g) Shall determine the actuarial equivalency of optional forms
of retirement allowances and establish from time to time for that
purpose the necessary actuarial factors, which shall constitute a
part of the system; and
(h) Shall adopt rules and take all actions necessary to
maintain qualification of the Public Employees Retirement System
and { - the - } Public Employees Retirement Fund { + and the
Fair Retirement Plan + } as { - a - } qualified governmental
retirement { - plan and trust - } { + plans and trusts + }
under the Internal Revenue Code and under regulations adopted
pursuant to the Internal Revenue Code. Rules under this paragraph
may impose limits on contributions to the system, limits on
benefits payable from the system and other limitations or
procedures required or imposed under federal law or regulation
for the purpose of qualification of the Public Employees
Retirement System and Public Employees Retirement Fund { + and
the Fair Retirement Plan + } under the Internal Revenue Code as
{ - a - } governmental retirement { - plan and trust - }
{ + plans and trusts + }.
(4) The board established by this section shall succeed to all
the duties and prerogatives of the Public Employees Retirement
Board created by chapter 401, Oregon Laws 1945, in relation to
the Public Employees Retirement Fund, and in addition shall
perform all duties required of it by ORS 237.950 to 237.980
{ - , - } in regard to moneys payable to or from such fund { +
and all duties required of it by sections 1 to 20 of this 2003
Act in regard to the Fair Retirement Plan + }.
(5) The board shall identify by rule those records that must be
maintained by participating public employers for the purposes of
subsection (3)(h) of this section. A participating public
employer shall maintain records for all employees who are members
of the system as required by board rules, and shall provide that
information to the board upon request.
SECTION 31. ORS 238.645 is amended to read:
238.645. The system shall be administered, subject to the
limitations of this chapter { + , sections 1 to 20 of this 2003
Act + } and the budget prescribed by the board, by the director
provided for by ORS 238.630 and by a staff which the board
authorizes and which the director appoints. The director shall
hold that position during the discretion of the board and the
members of the staff shall hold their respective positions during
the discretion of the director. No member of the staff may be
removed from it, however, in a manner contrary to the laws of the
state regarding civil service. The director shall furnish such
bond as is required by the board.
SECTION 32. ORS 238.650 is amended to read:
238.650. (1) Subject to the limitations of this chapter { +
and sections 1 to 20 of this 2003 Act + }, the Public Employees
Retirement Board shall, from time to time, establish rules for
transacting its business and administering the system in
accordance with the requirements of ORS 183.310 to 183.550.
(2) All rules adopted by the board become part of the written
plan document of the Public Employees Retirement System for the
purpose of the status of the system and the Public Employees
Retirement Fund { + and the Fair Retirement Plan + } as
{ - a - } qualified governmental retirement { - plan and
trust - } { + plans and trusts + } under the Internal Revenue
Code and under regulations adopted pursuant to the Internal
Revenue Code.
SECTION 33. ORS 238.700 is amended to read:
238.700. All provisions of ORS 238.655, 238.705, 238.710 and
238.715 hereby are made applicable for enforcement of the
requirements of ORS chapter 238 { + and sections 1 to 20 of this
2003 Act + }.
SECTION 34. ORS 238.705 is amended to read:
238.705. (1) All public employers that are members of the
system shall promptly and regularly remit to the Public Employees
Retirement Board all contributions required of them by law and
furnish all reports required by the board.
(2) Any public employer delinquent in remitting contributions
{ + under ORS chapter 238 + } shall be charged interest on the
total amount of contributions due from it at the rate of one
percent per month or fraction thereof during which the public
employer is delinquent. Interest so paid shall be deposited in
the Public Employees Retirement Fund and shall be used by the
board in paying administrative expenses of the system.
(3) If any state officer or agency fails to remit any
contribution or other obligation required by law, the Public
Employees Retirement Board, within 30 days after the date the
request therefor has been made by it by registered mail or by
certified mail with return receipt, may certify to the Oregon
Department of Administrative Services the fact of such failure
and the amount of the delinquent contribution or obligation,
together with its request that such amount be set over from funds
of the delinquent officer or agency to the credit of the Public
Employees Retirement Fund { + or the Fair Retirement Plan + }. A
copy of such certification and request shall be furnished the
delinquent officer or agency. The department shall, within 10
days after receipt of the request of the board, approve the
payment of such amount by the delinquent officer or agency from
funds allocated to the officer or agency for the current biennium
and draw a warrant for payment of the amount of the contribution
or obligation due out of funds in the State Treasury allocated to
the use of the delinquent officer or agency.
(4) If any public employer other than a state agency fails to
remit any contribution or pay any other obligation due under this
chapter { + or sections 1 to 20 of this 2003 Act + }, the board
may certify to the department the fact of such failure. Upon
receipt of the certification the department shall withhold
payment to the public employer of any revenues or funds in the
State Treasury in which the public employer is entitled by law to
share and which have been apportioned to the public employer
until the board certifies to the department that the failure has
been remedied. The board shall send a copy of each certification
it makes under this subsection to the public employer affected.
(5) Any public employer delinquent in making reports or
supplying information concerning its employees in the manner
required by the board shall be charged a penalty of the lesser of
$2,000 or one percent of the total annual contributions, for each
month or fraction thereof during which the employer is
delinquent. In addition, the board may send an auditor to the
office of the employer to examine its records and to obtain the
necessary reports, the entire cost of such audit to be paid by
the delinquent employer. Penalties and other charges so paid
shall be used by the board in paying administrative expenses of
the system.
SECTION 35. ORS 238.710 is amended to read:
238.710. In addition to the remedies otherwise provided by ORS
238.705 the board may, by petition in usual form apply to the
circuit court for the county in which is located the public
employer concerned, or the principal office or place of business
of such public employer, for, and if warranted, to have issued,
writs of mandamus to compel such public employer to supply to the
board a true and complete list and employment records of such
employer's employees and all information concerning such
employees that reasonably may be required and sought by said
board in such petition. Such writs, among other things, shall
direct the defendant therein to make such contributions to the
retirement fund { + or the Fair Retirement Plan + } on account
of such defendant's employees as may appear, from records and
information concerning such defendant's employees, to be required
by law. Either or both parties thereby aggrieved may appeal to
the Court of Appeals from, or from any part of, the judgment of
the circuit court given and made in such proceeding, as in
ordinary mandamus proceedings.
SECTION 36. ORS 238.715 is amended to read:
238.715. (1) If the Public Employees Retirement Board
determines that a member of the system or any other person
receiving a monthly payment from the Public Employees Retirement
Fund { + or under the Fair Retirement Plan + } has received any
amount in excess of the amounts that the member or other person
is entitled to under this chapter { + and sections 1 to 20 of
this 2003 Act + }, the board may recover the overpayment or other
improperly made payment by:
(a) Reducing the monthly payment to the member or other person
for as many months as may be determined by the board to be
necessary to recover the overpayment or other improperly made
payment; or
(b) Reducing the monthly payment to the member or other person
by an amount actuarially determined to be adequate to recover the
overpayment or other improperly made payment during the period
during which the monthly payment will be made to the member or
other person.
(2)(a) Any person who receives a payment from the Public
Employees Retirement Fund { + or under the Fair Retirement
Plan + } and who is not entitled to receive that payment,
including a member of the system who receives an overpayment,
holds the improperly made payment in trust subject to the board's
recovery of that payment under this section or by a civil action
or other proceeding.
(b) The board may recover an improperly made payment in the
manner provided by subsection (1) of this section from any person
who receives an improperly made payment from the fund { + or
under the Fair Retirement Plan + } and who subsequently becomes
entitled to receive a monthly payment from the fund { + or under
the fair plan + }.
(c) The board may recover an improperly made payment by
reducing any lump sum payment in the amount necessary to recover
the improperly made payment if a person who receives an
improperly made payment from the fund { + or under the Fair
Retirement Plan + } subsequently becomes entitled to receive a
lump sum payment from the fund { + or under the fair plan + }.
(3) Unless the member or other person receiving a monthly
payment from the fund { + or under the Fair Retirement Plan + }
authorizes a greater reduction, the board may not reduce the
monthly payment made to a member or other person under the
provisions of subsection (1) of this section by an amount that is
equal to more than 10 percent of the monthly payment.
(4) Before reducing a benefit to recover an overpayment or
erroneous payment, or pursuing any other collection action under
this section, the board shall give notice of the overpayment or
erroneous payment to the person who received the payment. The
notice shall describe the manner in which the person who received
the payment may appeal the board's determination that an
overpayment or erroneous payment was made, the action the board
may take if the person does not respond to the notice and the
authority of the board to assess interest, penalties or costs of
collection.
(5) If the board determines that an overpayment or erroneous
payment was caused by a fraudulent or intentional act of the
person who received the payment, the board may assess interest in
an amount equal to one percent per month on the balance of the
improperly made payment until the payment is fully recovered. The
board may also assess to the member or other person all costs
incurred by the board in recovering the payment, including
attorney fees. Interest and costs may be collected in the manner
prescribed in subsections (1) and (2) of this section. The board
may waive the interest and costs on an overpayment or other
improperly made payment for good cause shown.
(6) Notwithstanding ORS 293.240, the board may waive the
recovery of any payment or payments made to a person who was not
entitled to receive the payment or payments if the total amount
of the overpayment or other improperly made payments is less than
$50.
(7) A payment made to a person from the fund { + or under the
Fair Retirement Plan + } may not be recovered by the board unless
within six years after the date that the payment was made the
board has commenced proceedings to recover the payment. For the
purposes of subsection (1) of this section, the board shall be
considered to have commenced proceedings to recover the payment
upon mailing of notice to the person receiving a monthly payment
that the board has determined that an overpayment or other
improperly made payment has been made.
(8) The remedies authorized under this section are supplemental
to any other remedies that may be available to the board for
recovery of amounts incorrectly paid from the fund { + or under
the Fair Retirement Plan + } to members of the system or other
persons.
(9) The board shall adopt rules establishing the procedures to
be followed by the board in recovering overpayments and erroneous
payments under this section.
SECTION 37. ORS 238.750 is amended to read:
238.750. This chapter { + and sections 1 to 20 of this 2003
Act + } shall be known as the Public Employes' Retirement Act of
1953.
SECTION 38. ORS 243.800 is amended to read:
243.800. (1) Notwithstanding any provision of ORS chapter 238
or ORS 243.910 to 243.945 { + or sections 1 to 20 of this 2003
Act + }, the State Board of Higher Education may establish and
administer an optional retirement plan for administrative and
academic employees of the Oregon University System who are
eligible for membership in the Public Employees Retirement
System. The optional retirement plan must be a qualified plan
under the Internal Revenue Code, capable of accepting funds
transferred under subsection (7) of this section without the
transfer being treated as a taxable event under the Internal
Revenue Code, and willing to accept those funds. Retirement and
death benefits shall be provided under the plan by the purchase
of annuity contracts, fixed or variable or a combination thereof,
or by contracts for investments in mutual funds.
(2) The State Board of Higher Education shall select at least
two life insurance companies providing fixed and variable
annuities and at least two investment companies providing mutual
funds, but not more than five companies in total, for the purpose
of providing benefits under the optional retirement plan
authorized by this section. The State Board of Higher Education
shall establish selection criteria for the purpose of this
subsection.
(3) An administrative or academic employee may elect to
participate in an optional retirement plan offered under the
provisions of this section in the following manner:
(a) An administrative or academic employee who is an active
member of the Public Employees Retirement System may make an
irrevocable election to participate in the plan within 180 days
after the plan's implementation date, effective as of the date of
election.
(b) An employee, as defined in ORS 243.910 (2), who is an
active member of the Public Employees Retirement System and who
has elected, and not canceled that election, to be assisted by
the State Board of Higher Education under ORS 243.940 may make an
irrevocable election to participate in the plan within 180 days
of the plan's implementation date, effective as of the date of
election.
(c) An administrative or academic employee who is hired after
the plan's implementation date may make an irrevocable election
to participate in the plan within the first six months of
employment, effective on the first of the month following six
full months of employment.
(4) Administrative or academic employees who do not elect to
participate in an optional retirement plan:
(a) Remain members of the Public Employees Retirement System if
they are members on the date the plan is implemented;
(b) Continue to be assisted by the State Board of Higher
Education under ORS 243.920 if they are being so assisted; or
(c) Become members of the Public Employees Retirement System in
accordance with ORS chapter 238 { + and sections 1 to 20 of this
2003 Act + }, if they commence employment after the optional plan
is implemented.
(5) Except as provided in subsection (6) of this section,
employees who elect to participate in the plan are ineligible for
active membership in the Public Employees Retirement System or
for any assistance by the State Board of Higher Education under
ORS 243.920 as long as those employees are employed in the Oregon
University System and the plan is in effect.
(6)(a) An administrative or academic employee who elects to
participate in the optional retirement plan authorized by this
section { + , who is a member of the Public Employees Retirement
System under ORS chapter 238 + } and who has not made
contributions to the Public Employees Retirement System during
each of five calendar years shall be considered by the Public
Employees Retirement Board to be a terminated member under the
provisions of ORS 238.095 effective as of the effective date of
the election, and the amount credited to the member account of
the member shall be transferred directly to the optional
retirement plan by the Public Employees Retirement Board in the
manner provided by subsection (7) of this section.
(b) An administrative or academic employee who elects to
participate in the optional retirement plan authorized by this
section { + , who is a member of the Public Employees Retirement
System under ORS chapter 238 + } and who has made contributions
to the Public Employees Retirement System during each of five
calendar years shall be considered to be an inactive member by
the Public Employees Retirement Board and shall retain all the
rights, privileges and options under ORS chapter 238 unless the
employee withdraws the amounts credited to the member account of
the member pursuant to ORS 238.265.
{ + (c) An administrative or academic employee who elects to
participate in the optional retirement plan authorized by this
section and who is a Fair Retirement Plan member under sections 1
to 20 of this 2003 Act shall be considered by the Public
Employees Retirement Board to have terminated membership under
the Fair Retirement Plan effective as of the effective date of
the election, and the amount of any employee and employer
contributions in which the member has become vested, including
any earnings on those contributions, shall be transferred
directly to the optional retirement plan by the Public Employees
Retirement Board in the manner provided by subsection (7) of this
section. + }
(7) Any withdrawals from the Public Employees Retirement Fund
{ + or from member accounts under the Fair Retirement Plan + }
under subsection (6) of this section, whether by termination
under subsection (6)(a) of this section or by elective withdrawal
under subsection (6)(b) { + or (c) + } of this section, shall be
transferred directly to the optional retirement plan by the
Public Employees Retirement Board and shall not be made available
to the employee.
(8) An employee participating in the optional retirement plan
authorized by this section shall contribute monthly an amount
equal to { - the - } { + a + } percentage of the employee's
salary { - that the employee would otherwise have contributed
as an employee contribution to the Public Employees Retirement
System if the employee had not elected to participate in the
optional retirement plan - } { + established by the state
board + }.
(9) The State Board of Higher Education shall contribute
monthly to the optional retirement plan authorized under this
section { - the - } { + a + } percentage of salary of each
employee participating in the plan { - equal to the percentage
of salary that would otherwise have been contributed as an
employer contribution on behalf of the employee to the Public
Employees Retirement System if the employee had not elected to
participate in the optional retirement plan - } { + as
established by the state board + }.
(10) Both employee and employer contributions to an optional
retirement plan authorized under this section shall be remitted
directly to the companies that have issued annuity contracts to
the participating employees or directly to the mutual funds.
(11) Benefits under the optional retirement plan authorized
under this section are payable to employees who elect to
participate in the plan and their beneficiaries by the selected
annuity provider or mutual fund in accordance with the terms of
the annuity contracts or the terms of the contract with the
mutual fund. Employees electing to participate in the plan agree
that benefits payable under the plan are not obligations of the
State of Oregon or of the Public Employees Retirement System.
SECTION 39. ORS 243.830 is amended to read:
243.830. An agreement executed pursuant to ORS 243.820 by an
employee who is subject to ORS chapter 238 { + or sections 1 to
20 of this 2003 Act, + } or a similar retirement program for
public employees { + , + } in no way affects the contributions to
be made or the benefits to be provided for such employee under
ORS chapter 238 { + , sections 1 to 20 of this 2003 Act + } or
the other similar program. Reduction of salary or foregoing a
salary increase by a stated amount under ORS 243.820 shall not be
deemed a reduction in salary for the purpose of such
contributions and benefits.
SECTION 40. ORS 243.930 is amended to read:
243.930. (1) If an employee assisted under ORS 243.920 (1) has
made contributions to the Public Employees Retirement Fund during
each of five calendar years as provided in ORS chapter 238, { +
or is vested in employer contributions under the Fair Retirement
Plan, + } the board shall contribute an amount toward the
purchase of the supplemental retirement benefits equal to the
contributions toward the purchase made by the employee on annual
salary in excess of $4,800. The amounts of those contributions by
the board shall be paid promptly by the board to the life
insurance or annuity company in accordance with the terms of the
applicable contract.
(2) If an employee assisted under ORS 243.920 (1) has not made
contributions to the Public Employees Retirement Fund during each
of five calendar years as provided in ORS chapter 238, { + or is
not vested in employer contributions under the Fair Retirement
Plan, + } the board shall contribute an amount toward the
purchase of the supplemental retirement benefits equal to that
which it would contribute for current service under the Public
Employees Retirement System with respect to the annual salary in
excess of $4,800 of the employee if the employee contributed
under the system on that part of the salary.
(3) The amounts of contributions by the board under subsection
(2) of this section, at intervals designated by the Public
Employees Retirement Board, shall be paid into the Public
Employees Retirement Fund { + or into member accounts under the
Fair Retirement Plan + }. The Public Employees Retirement Board
shall keep a separate account for those amounts and prorated
earnings thereof, and for investment purposes the moneys in the
separate account shall be commingled with those of the Public
Employees Retirement Fund { + and the Fair Retirement Plan + }
and shall be invested in the same manner as moneys of the Public
Employees Retirement Fund { + and the Fair Retirement Plan + }
are invested.
(4) When an employee, with respect to whose annual salary in
excess of $4,800 the board has contributed under subsection (2)
of this section, has made contributions to the Public Employees
Retirement Fund during each of five calendar years as provided in
ORS chapter 238, { + or is vested in employer contributions
under the Fair Retirement Plan, + } an amount equal to the
contributions made under ORS 243.920 (2) shall be paid promptly
to the life insurance or annuity company out of the separate
account referred to in subsection (3) of this section, which
hereby is appropriated for that purpose, for the purchase of
additional supplemental retirement benefits for the employee. If
the moneys in the separate account are not sufficient for that
purpose, the amount of the deficiency shall be paid promptly by
the board to the life insurance or annuity company for that
purchase.
(5) If an employee is separated from the service of the board
before the employee has made contributions to the Public
Employees Retirement Fund during each of five calendar years as
provided in ORS chapter 238, { + or before the employee is
vested in employer contributions under the Fair Retirement
Plan, + } the amounts of contributions by the board paid into the
Public Employees Retirement Fund { + or into member accounts
under the Fair Retirement Plan + } under subsection (3) of this
section and prorated earnings thereof shall remain in the
separate account referred to in subsection (3) of this section
for the purpose described in subsection (4) of this section, and
the employee is not entitled to any part thereof or any benefit
derived therefrom.
SECTION 41. ORS 268.240 is amended to read:
268.240. (1) A district that is not participating in the Public
Employees Retirement System may, by application to the board,
include any class of employees of the district in the system
established by ORS chapter 238 { + and sections 1 to 20 of this
2003 Act + } without entering into a contract of integration with
the board under ORS 238.680.
(2) The board shall consider an application received under this
section to be an application to become a participating
{ + public + } employer under ORS chapter 238 { + and sections
1 to 20 of this 2003 Act + } but only to the extent of providing
membership for the class of employees described in the
application.
(3) The board, upon such terms as are set forth in a contract
between the board and the employer, shall allow every employee in
the specified class to become members of the Public Employees
Retirement System in accordance with ORS chapter 238 { + and
sections 1 to 20 of this 2003 Act + }.
(4) When a district enters into a contract with the board under
subsection (3) of this section, the district shall agree to
eventually extend coverage under ORS chapter 238 { + and
sections 1 to 20 of this 2003 Act + } to all eligible district
employees through successive contracts with the board.
(5) All employees who have completed the period of service with
the public employer that is required under ORS 238.015 { + or
section 6 of this 2003 Act + } shall become members of the system
on a date specified by the board. All other employees in the
described class shall become members upon completion of the
required period of service.
(6) As used in this section, 'board' means the Public Employees
Retirement Board established under ORS 238.630.
SECTION 42. ORS 338.135 is amended to read:
338.135. (1) Employee assignment to a public charter school
shall be voluntary.
(2) A public charter school or the sponsor of the public
charter school may be considered the employer of any employees of
the public charter school. If a school district board is not the
sponsor of the public charter school, the school district board
shall not be the employer of the employees of the public charter
school and the school district board may not collectively bargain
with the employees of the public charter school. The public
charter school governing body shall control the selection of
employees at the public charter school.
(3) The school district board of the school district within
which the public charter school is located shall grant a leave of
absence to any employee who chooses to work in the public charter
school. The length and terms of the leave of absence shall be set
by negotiated agreement or by board policy. However, the length
of the leave of absence may not be less than two years unless:
(a) The charter of the public charter school is terminated or
the public charter school is dissolved or closed during the leave
of absence; or
(b) The employee and the school district board have mutually
agreed to a different length of time.
(4) An employee of a public charter school operating within a
school district who is granted a leave of absence from the school
district and returns to employment with the school district shall
retain seniority and benefits as an employee pursuant to the
terms of the leave of absence. Notwithstanding ORS 243.650 to
243.782, a school district that was the employer of an employee
of a public charter school not operating within the school
district may make provisions for the return of the employee to
employment with the school district.
(5) For purposes of ORS chapter 238 { + and sections 1 to 20
of this 2003 Act + }, a public charter school shall be considered
a public employer and as such shall participate in the Public
Employees Retirement System.
(6) For teacher licensing, employment experience in public
charter schools shall be considered equivalent to experience in
public schools.
(7)(a) Notwithstanding ORS 342.173, a public charter school may
employ as an administrator a person who is not licensed by the
Teacher Standards and Practices Commission.
(b) Any person employed as a teacher in a public charter school
shall be licensed or registered to teach by the Teacher Standards
and Practices Commission.
(c) Notwithstanding paragraph (a) or (b) of this subsection, at
least one-half of the total full-time equivalent (FTE) teaching
and administrative staff at the public charter school shall be
licensed by the commission pursuant to ORS 342.135, 342.136,
342.138 or 342.140.
(8) Notwithstanding ORS 243.650, a public charter school shall
be considered a school district for purposes of ORS 243.650 to
243.782. An employee of a public charter school may be a member
of a labor organization or organize with other employees to
bargain collectively. Bargaining units at the public charter
school may be separate from other bargaining units of the sponsor
or of the school district in which the public charter school is
located. Employees of a public charter school may be part of the
bargaining units of the sponsor or of the school district in
which the public charter school is located.
(9) A school district or the State Board of Education may not
waive the right to sponsor a public charter school in a
collective bargaining agreement.
SECTION 43. ORS 341.290 is amended to read:
341.290. The board of education of a community college district
shall be responsible for the general supervision and control of
any and all community colleges operated by the district.
Consistent with any applicable rules of the State Board of
Education, the board may:
(1) Subject to ORS chapter 238 { + and sections 1 to 20 of
this 2003 Act + }, employ administrative officers, professional
personnel and other employees, define their duties, terms and
conditions of employment and prescribe compensation therefor,
pursuant to ORS 243.650 to 243.782.
(2) Enact rules for the government of the community college,
including professional personnel and other employees thereof and
students therein.
(3) Prescribe the educational program.
(4) Control use of and access to the grounds, buildings, books,
equipment and other property of the district.
(5) Acquire, receive, hold, control, convey, sell, manage,
operate, lease, lease-purchase, lend, invest, improve and develop
any and all property of whatever nature given to or appropriated
for the use, support or benefit of any activity under the control
of the board, according to the terms and conditions of such gift
or appropriation.
(6) Purchase real property upon a contractual basis when the
period of time allowed for payment under the contract does not
exceed 30 years.
(7) Fix standards of admission to the community college,
prescribe and collect tuition for admission to the community
college, including fixing different tuition rates for students
who reside in the district, students who do not reside in the
district but are residents of the state and students who do not
reside in the state.
(8) Prescribe and collect fees and expend funds so raised for
special programs and services for the students and for programs
for the cultural and physical development of the students.
(9) Provide and disseminate to the public information relating
to the program, operation and finances of the community college.
(10) Establish or contract for advisory and consultant
services.
(11) Take, hold and dispose of mortgages on real and personal
property acquired by way of gift or arising out of transactions
entered into in accordance with the powers, duties and authority
of the board and institute, maintain and participate in suits and
actions and other judicial proceedings in the name of the
district for the foreclosure of such mortgages.
(12) Maintain programs, services and facilities, and, in
connection therewith, cooperate and enter into agreements with
any person or public or private agency.
(13) Provide student services including health, guidance,
counseling and placement services, and contract therefor.
(14) Join appropriate associations and pay any required dues
therefor from resources of the district.
(15) Apply for federal funds and accept and enter into any
contracts or agreements for the receipt of such funds from the
federal government or its agencies for educational purposes.
(16) Exercise any other power, duty or responsibility necessary
to carry out the functions under this section or required by law.
(17) Prescribe rules for the use and access to public records
of the district that are consistent with ORS 192.420, and
education records of students under applicable state and federal
law and rules of the State Board of Education. Whenever a student
has attained 18 years of age or is attending an institution of
post-secondary education, the permission or consent required of
and the rights accorded to a parent of the student regarding
education records shall thereafter be required of and accorded to
only the student. However, faculty records relating to matters
such as conduct, personal and academic evaluations, disciplinary
actions, if any, and other personal matters shall not be made
available to public inspection for any purpose except with the
consent of the person who is the subject of the record or upon
order of a court of competent jurisdiction.
(18) Enter into contracts for the receipt of cash or property,
or both, and establish annuities pursuant to ORS 731.704 to
731.724; and, commit, appropriate, authorize and budget for the
payment of or other disposition of general funds to pay, in whole
or in part, sums due under an annuity agreement, and to provide
the necessary funding for reserves or other trust funds pursuant
to ORS 731.716.
(19) Encourage gifts to the district by faithfully devoting the
proceeds of such gifts to the district purposes for which
intended.
(20) Build, furnish, equip, repair, lease, purchase and raze
facilities; and locate, buy and acquire lands for all district
purposes. Financing may be by any prudent method including but
not limited to loans, contract purchase or lease. Leases
authorized by this section include lease-purchase agreements
whereunder the district may acquire ownership of the leased
property at a nominal price. Such financing agreements may be for
a term of up to 30 years except for lease arrangements which may
be for a term of up to 50 years.
(21) Participate in an educational consortium with public and
private institutions that offer upper division and graduate
instruction. Community colleges engaged in such consortiums may
expend money, provide facilities and assign staff to assist those
institutions offering upper division and graduate instruction.
(22) Enter into contracts of insurance or medical and hospital
service contracts or may operate a self-insurance program as
provided in ORS 341.312.
SECTION 44. ORS 353.117 is amended to read:
353.117. (1) Pursuant to ORS 353.050, Oregon Health and Science
University may create and maintain an entity that is exempt from
federal income tax under section 501(c)(3) of the Internal
Revenue Code, as amended, for the purpose of conducting clinical
care and practice and advancing other university missions by the
faculty.
(2) Any entity created by the university under subsection (1)
of this section shall be considered:
(a) A public employer for purposes of ORS 236.605 to 236.640
and ORS chapter 238 { + and sections 1 to 20 of this 2003
Act + };
(b) A unit of local government for purposes ORS 190.003 to
190.130;
(c) A public provider of health care for purposes of ORS
192.525;
(d) A public body for purposes of ORS 30.260 to 30.300 and
307.112;
(e) A public agency for purposes of ORS 200.090; and
(f) A public corporation for purposes of ORS 307.090.
SECTION 45. ORS 353.250 is amended to read:
353.250. Notwithstanding the provisions of ORS chapter 238
{ + and sections 1 to 20 of this 2003 Act + }, the Oregon
Health and Science University may offer to its employees, in
addition to the Public Employees Retirement System, alternative
retirement programs.
SECTION 46. ORS 377.836 is amended to read:
377.836. (1) Except as otherwise provided by law, and except as
provided in subsection (2) of this section, the provisions of ORS
chapters 240, 276, 279, 282, 283, 291, 292 and 293 do not apply
to the Travel Information Council. The council is subject to all
other statutes governing a state agency that do not conflict with
ORS 377.700 to 377.840, including the tort liability provisions
of ORS 30.260 to 30.300 and the provisions of ORS 183.310 to
183.550. Subject to the requirements of ORS chapter 238 { + and
sections 1 to 20 of this 2003 Act + }, the council's employees
are members of the Public Employees Retirement System.
(2) The following shall apply to the council:
(a) ORS 279.800 to 279.830;
(b) ORS 282.210 to 282.230; and
(c) ORS 293.235, 293.240, 293.245, 293.611, 293.625 and
293.630.
SECTION 47. ORS 396.330 is amended to read:
396.330. (1) State employees of the Oregon Military Department
who are not otherwise members of the Oregon National Guard may be
required as a condition of employment to obtain membership in the
Oregon State Defense Force when in the judgment of the Adjutant
General the membership maintains or enhances the readiness and
stability of the department to provide services if the need for
Oregon State Defense Force assistance should arise. The decision
of the Adjutant General shall be carried out by written
regulation and shall not be subject to collective bargaining.
(2) Members of the Oregon National Guard or Oregon State
Defense Force who are ordered to state active duty under the
provisions of ORS chapter 399 shall be considered as being in the
military service of the state and shall be considered temporary
employees of the military department.
(3) State employees of the military department may be ordered
to state active duty under ORS chapter 399 without jeopardizing
their status as regular employees. Employees so ordered must be
in an authorized leave status from their regular military
department employment during the period served on active duty.
(4) State employees of the military department shall be subject
to ORS chapter 240 or 243 when performing as regular employees.
(5) Members of the Oregon National Guard who are serving under
Title 10 or Title 32 of the United States Code are not eligible,
by reason of that service, for the rights or benefits of public
employees granted or authorized by ORS chapters 236, 237, 238,
240 or 243 { + or sections 1 to 20 of this 2003 Act + }. Except
as required by federal law or regulation, ORS chapters 652, 653,
654, 656, 657, 659, 659A, 661 and 663 do not apply to members of
the Oregon National Guard who are serving under Title 10 or Title
32 of the United States Code.
SECTION 48. ORS 576.306 is amended to read:
576.306. (1) The commission may contract with an independent
contractor for the performance of any services. However, the
commission may not contract with an independent contractor to
perform the discretionary functions of the commission. ORS
chapters 240 and 279 do not apply to the commission in obtaining
such services, except that no contract for such services shall
take effect until approved by the State Department of Agriculture
as provided in subsection (7) of this section.
(2) The commission may rent space or acquire supplies and
equipment from any contractor as described in subsection (1) of
this section. ORS chapters 276, 278, 279 and 283 and ORS 291.038
do not apply to such rentals or acquisitions.
(3) Except as provided in this section, a contractor described
in subsection (1) of this section shall be considered an
independent contractor and not an employee, eligible employee,
public employee or employee of the state for purposes of Oregon
law, including ORS chapters 236, 238, 240, 243, 291, 292, 316 and
652 { + and sections 1 to 20 of this 2003 Act + }.
(4) Nothing in this section precludes the state or a commission
from being considered the employer of the contractor described in
subsection (1) of this section for purposes of unemployment
compensation under ORS chapter 657 and ORS 670.600.
(5) A contractor described in subsection (1) of this section
shall be considered an independent contractor and not a worker
for purposes of ORS chapter 656 and ORS 670.600.
(6) A contractor described in subsection (1) of this section
shall not be considered a public official, public officer, state
officer or executive official for purposes of Oregon law,
including ORS chapters 236, 244, 292, 295 and 297 and ORS 171.725
to 171.785.
(7) The State Department of Agriculture shall review the
contract described in subsection (1) of this section for the
adequacy of the clauses pertaining to statement of work, starting
and ending dates, consideration, subcontracts, funds authorized
in the budget, amendments, termination, compliance with
applicable law, assignment and waiver, access to records,
indemnity, ownership of work product, nondiscrimination,
successors in interest, attorney fees, tax certification or
merger or any other clause the department deems necessary.
(8) The Oregon Department of Administrative Services, in
consultation with the State Department of Agriculture, shall
adopt rules necessary for the screening and selection of
independent contractors under this section.
(9) Except as provided in subsection (8) of this section, the
department may promulgate any rules necessary for the
administration and enforcement of this section.
SECTION 49. ORS 777.775 is amended to read:
777.775. (1) An export trading corporation is not a public
agency or public contracting agency for the purposes of ORS
279.011 to 279.063 or 279.435.
(2) An export trading corporation is not a public employer for
the purposes of ORS chapter 238 { + and sections 1 to 20 of this
2003 Act + }.
{ +
CAPTIONS + }
SECTION 50. { + The unit and section captions used in this
2003 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2003 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 51. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect on
its passage. + }
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