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
House Bill 2020
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 as
introduced.
Establishes Public Employee Successor Retirement Plan for
persons hired on or after January 1, 2004, who have not
established membership in Public Employees Retirement System
before January 1, 2004. Provides that successor 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 1.290, 192.502, 196.165, 238.035,
238.156, 238.220, 238.445, 238.455, 238.460, 238.465, 238.630,
238.645, 238.650, 238.660, 238.661, 238.665, 238.675, 238.700,
238.705, 238.715, 238.750, 243.105, 243.800, 243.830, 243.930,
268.240, 338.135, 341.290, 353.117, 353.250, 377.836, 396.330,
576.306, 656.725 and 777.775; appropriating money; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
DEFINITIONS + }
SECTION 1. { + Definitions. For the purposes of sections 1 to
19 of this 2003 Act:
(1) 'Active successor plan member' means a successor plan
member who is performing service with one or more participating
public employers.
(2) 'Board' means the Public Employees Retirement Board.
(3) 'Employee' means an employee as described in ORS 238.005.
(4) 'Firefighter' means a firefighter as described in ORS
238.005.
(5) 'Fund' means the Public Employees Retirement Fund.
(6) 'Inactive successor plan member' means a successor plan
member who:
(a) Is separated from all service with participating public
employers; and
(b) Is separated from all service with employers who are
treated as part of a participating public employer's controlled
group under the federal laws and rules governing the status of
the system and the fund as a qualified governmental retirement
plan and trust.
(7) 'Judge' means a judge of the Supreme Court, the Court of
Appeals, the Oregon Tax Court or a circuit court.
(8) 'Participating public employer' means a public employer as
defined in ORS 238.005 that provides retirement benefits for
employees of the public employer under the successor plan.
(9) 'Police officer' means a police officer as described in ORS
238.005.
(10) 'Salary' means a salary as described in ORS 238.005.
(11) 'Successor plan' means the Public Employee Successor
Retirement Plan established under sections 1 to 19 of this 2003
Act.
(12) 'Successor plan member' means a person who has established
membership in the system under section 6 of this 2003 Act and
whose membership has not been terminated under section 7 of this
2003 Act.
(13) 'System' means the Public Employees Retirement System. + }
{ +
PUBLIC EMPLOYEE SUCCESSOR RETIREMENT PLAN + }
SECTION 2. { + Successor plan established. (1) The Public
Employee Successor Retirement Plan is established.
Notwithstanding any provision of ORS chapter 238, any person who
is employed by a participating public employer on or after
January 1, 2004, and who has not established membership in the
Public Employees Retirement System before January 1, 2004, is
entitled to receive only the benefits provided under the
successor plan for periods of service with participating public
employers on and after January 1, 2004, and has no right or claim
to any benefit under ORS chapter 238 except as specifically
provided by sections 1 to 19 of this 2003 Act. A person who
establishes membership in the Public Employees Retirement System
before January 1, 2004, is entitled to receive the benefits
provided by ORS chapter 238.
(2) A person establishes membership in the system before
January 1, 2004, for the purposes of this section if:
(a) The person is a member of the system, or a judge member of
the system, on December 31, 2003; or
(b) The person performed any period of service for a
participating public employer before January 1, 2004, 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 19 of this 2003 Act,
ORS chapter 238 does not apply to the successor plan.
(4) The provisions of this section apply to persons elected or
appointed as judges. + }
{ +
ADMINISTRATION + }
SECTION 3. { + Successor plan part of Public Employees
Retirement System. (1) The Public Employee Successor Retirement
Plan is part of the Public Employees Retirement System, and is
administered by the Public Employees Retirement Board.
(2) ORS 238.035, 238.156, 238.220, 238.445, 238.450, 238.455,
238.458, 238.460, 238.465, 238.470, 238.600, 238.601, 238.605,
238.615, 238.618, 238.630, 238.635, 238.640, 238.645, 238.650,
238.655, 238.660, 238.661, 238.665, 238.675, 238.700, 238.705,
238.710 and 238.715 apply to the successor plan. + }
SECTION 4. { + Administrative costs of successor plan. (1) The
Public Employees Retirement Board shall implement and administer
sections 1 to 19 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 successor 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 19 of this 2003
Act or other law.
(2) The Public Employees Retirement System may assess a charge
against the member accounts of active and inactive successor plan
members. 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 successor
plan and to pay costs incurred in investing moneys in successor
plan member accounts.
(3) For the purpose of implementing and administering sections
1 to 19 of this 2003 Act, the board may designate fiscal periods.
The board may apportion extraordinary expenses incurred during
any fiscal period, including but not limited to expenses for
equipment and actuarial studies, to subsequent fiscal periods for
purposes of equitably distributing the burden of the expenses.
The board may carry forward unexpended fees collected in one
fiscal period to a later fiscal period for the payment of future
expenses. + }
SECTION 5. { + Accounts in Public Employees Retirement Fund.
On request from the Public Employees Retirement Board, the State
Treasurer shall establish all accounts in the Public Employees
Retirement Fund that are necessary to administer the provisions
of sections 1 to 19 of this 2003 Act. The accounts shall be
established and maintained with the charges assessed under
section 4 of this 2003 Act against the account balances of
successor plan members. The moneys held in the accounts
established by the board may be used only for payment of the
administrative expenses incurred by the Public Employees
Retirement System in implementing and administering the
provisions of sections 1 to 19 of this 2003 Act. + }
{ +
MEMBERSHIP + }
SECTION 6. { + Establishing membership under successor plan;
member account. (1) Any person who is employed by a participating
public employer on or after January 1, 2004, and who has not
established membership in the Public Employees Retirement System
before January 1, 2004, as described in section 2 of this 2003
Act, becomes a successor plan member when the person is first
paid any salary by the participating public employer.
(2) Upon a person becoming a successor plan member under this
section, the Public Employees Retirement Board shall create a
member account for the person. The member account shall consist
of required employee contributions made under section 8 of this
2003 Act, employer contributions made under section 9 of this
2003 Act and optional employee contributions made under section
10 of this 2003 Act adjusted to reflect any earnings or losses on
those contributions. + }
SECTION 7. { + Termination of membership. Membership under the
successor plan terminates upon death of the member, retirement of
the member or withdrawal of the member account under section 14
of this 2003 Act. + }
{ +
CONTRIBUTIONS + }
SECTION 8. { + Required member contribution. (1) A successor
plan member must elect to contribute a specific percentage of the
successor plan member's salary to the successor plan. The
percentage may not be less than two percent of salary or more
than __ percent of salary, and must be a whole number.
(2) Not more than once each calendar year, a successor plan
member may change the percentage elected under subsection (1) of
this section. The request for a change must be made in writing in
a form prescribed by the Public Employees Retirement Board. The
new percentage amount must be a whole number and must be within
the range of percentages allowed by subsection (1) of this
section. The election takes effect on January 1 of the following
year.
(3) A participating public employer may not 'pick up, ' assume
or pay the employee contributions required by this section.
(4) Contributions made by a successor plan member under this
section shall be credited by the Public Employees Retirement
Board to the member account established for the member under
section 6 of this 2003 Act. + }
SECTION 9. { + Employer contribution. (1) Except as provided
in subsection (2) of this section, a participating public
employer shall contribute an amount to the successor plan on
behalf of a successor plan member that is equal to the
contribution elected by the member under section 8 of this 2003
Act.
(2) A participating public employer shall contribute an amount
to the successor plan on behalf of a successor plan member that
is equal to __ percent of the contribution elected by the member
under section 8 of this 2003 Act if the member is a police
officer, firefighter or judge.
(3) Contributions made by a participating public employer on
behalf of a successor plan member under this section shall be
credited by the Public Employees Retirement Board to the member
account established for the member under section 6 of this 2003
Act. + }
SECTION 10. { + Optional member contribution. A successor plan
member may elect to contribute a percentage of the successor plan
member's salary to the successor plan that is in excess of
__ percent of salary. The percentage may not be more than
__ percent of salary, and must be a whole number. A participating
public employer is not required to match any contribution made by
a successor plan member under the provisions of this section. + }
{ +
VESTING + }
SECTION 11. { + Immediate vesting. (1) All contributions to a
successor plan member account under the successor plan and
earnings on those contributions are held in trust for the
successor plan member from the time the contributions and
earnings are credited to the member's account.
(2) An inactive successor plan member may withdraw the member
account of the member as provided in section 14 of this 2003 Act
or may leave the member account invested under the Public
Employees Retirement Fund until the member attains retirement age
as specified in section 16 of this 2003 Act. Upon reaching
retirement age, an inactive successor plan member must elect to
receive an annuity or other payout option established by the
Public Employees Retirement Board under section 17 of this 2003
Act. + }
{ +
INVESTMENT OF MONEYS IN MEMBER ACCOUNTS + }
SECTION 12. { + Investment program. (1) The Oregon Investment
Council shall establish a program for investment of moneys in
successor 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 of the investment options set
forth in the council's policies and procedures for the investment
of moneys in successor plan member accounts, the applicable
benchmark for each option and a description of the
characteristics of each benchmark. The council shall provide at
least __ 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 by this
section. The provisions of ORS chapter 59 requiring 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 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 successor
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 successor
plan member. + }
{ +
WITHDRAWAL OF ACCOUNT + }
SECTION 14. { + Account may be withdrawn by inactive member at
any time after leaving public employment. (1) An inactive
successor 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 Public Employees Retirement System.
(3) If a successor plan member withdraws the member account
before reaching retirement age as described in section 16 of this
2003 Act, and is subsequently reemployed by a participating
public employer, the person may reestablish membership under the
successor plan only for the purposes of service performed after
the person is reemployed. If a successor plan member withdraws
the member account after reaching retirement age as described in
section 16 of this 2003 Act, and is subsequently reemployed by a
participating public employer, the person may not reestablish
membership in the system. + }
{ +
DEATH BENEFIT + }
SECTION 15. { + Death benefit. (1) If a successor plan member
dies before retiring, the Public Employees Retirement Board shall
pay the amount of money credited at the time of death to the
member account of the member to one or more beneficiaries
designated by the member. A successor 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 successor plan member dies before retiring and has not
designated a beneficiary under subsection (1) of this section,
the board shall pay the amount of money credited at the time of
death to the member account of the deceased member 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 money credited to the account 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) The beneficiary designated under subsection (1) of this
section may elect to receive the amount payable in actuarially
determined monthly payments for the life of the beneficiary if
the monthly payments are at least $200.
(4) If a successor 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.
(5) Interest on the member account of a deceased member accrues
until the date that the amount in the member account is
distributed. The board shall establish procedures for computing
and crediting interest on the balance in the member account for
the period between the date of death and date of distribution.
(6) Payment by the board of a death benefit in the manner
provided by this section completely discharges the board and
Public Employees Retirement System from any liability for amounts
owing by reason of the death of a successor plan member. + }
{ +
RETIREMENT + }
SECTION 16. { + Retirement age. (1) Except as provided in
subsection (2) of this section, a successor plan member may
retire upon attaining __ years of age.
(2) A police officer, firefighter or judge may retire upon
attaining __ years of age. + }
{ +
BENEFITS UPON RETIREMENT + }
SECTION 17. { + Annuities and other payout options. The Public
Employees Retirement Board shall by rule provide for annuities
and other payout options for retired successor 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 to make any
contribution beyond the contribution required by section 9 of
this 2003 Act. + }
{ +
REEMPLOYMENT OF RETIRED MEMBERS + }
SECTION 18. { + Reemployment after attaining retirement age.
Any successor plan member who retires may thereafter be employed
by a participating public employer but may not again become a
member of the Public Employees Retirement System. + }
{ +
CONTRACT RIGHTS + }
SECTION 19. { + Contract rights under successor plan. Nothing
in sections 1 to 19 of this 2003 Act prevents the Legislative
Assembly or the Public Employees Retirement Board from changing
the benefits payable to persons who become members of the Public
Employees Retirement System on or after January 1, 2004, as
described in section 2 of this 2003 Act, as long as those changes
apply only to benefits accruing on or after the change is
made. + }
{ +
TAX QUALIFICATION + }
SECTION 20. { + (1) Except as provided in this section, this
2003 Act becomes operative on January 1, 2004.
(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 19 of this 2003 Act to the Internal
Revenue Service and seek approval of sections 1 to 19 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 successor
plan. + }
{ +
CONFORMING AMENDMENTS + }
SECTION 21. ORS 1.290 is amended to read:
1.290. (1) As used in this section, unless the context requires
otherwise, 'judge' means any judge of the Supreme Court, the
Court of Appeals, the Oregon Tax Court or any circuit court, but
does not include any person appointed by the Supreme Court as
judge pro tempore of any of those courts who does not hold the
elective office of judge of any of those courts.
(2) Upon receipt of the written application of any judge, the
Supreme Court may grant the judge a leave of absence without
salary for a period of not more than one year. The Supreme Court
may grant a leave of absence only if the court is satisfied that
the administration of justice in Oregon will be enhanced by
granting the leave. Application for a leave of absence is
considered a waiver of salary by the applicant for the period of
time the applicant is absent under the leave granted by the
court.
(3) A leave of absence shall be granted by order of the Supreme
Court. The order shall state the maximum period of time for which
the leave is granted. Promptly after the granting of the leave,
the State Court Administrator shall cause a certified copy of the
order granting the leave to be sent to the Secretary of State and
the Public Employees Retirement Board.
(4) At the termination of leave of absence under this section,
unless the judge sooner dies or resigns, a judge shall resume the
duties of office and cause written notice of the resumption to be
sent to the Supreme Court, the Secretary of State and the Public
Employees Retirement Board. The resumption and sending notice
thereof constitutes a termination of the leave whether or not the
full maximum period of time granted has expired.
(5) Absence on leave by a judge under this section does not
create a vacancy in the office to which the judge was elected or
appointed, nor is the judge subject to removal as a consequence
thereof.
(6) Absence on leave under this section by a judge who is a
member of the Public Employees Retirement System under ORS
chapter 238 { + or sections 1 to 19 of this 2003 Act + } does
not break the continuity of the membership of the judge in the
system.
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 - } { + sections 1 to 19
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 - } { + sections 1 to 19
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 19 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 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 19 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 19 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 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 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 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 26. ORS 238.156 is amended to read:
238.156. (1) Notwithstanding any other provision of this
chapter { + or sections 1 to 19 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 successor 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 successor 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 successor 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 27. ORS 238.220 is amended to read:
238.220. (1) The Public Employees Retirement Board may, at its
discretion, accept rollover contributions from an active member.
The board may accept rollover contributions under this section
only if the amounts contributed qualify for pretax rollover
treatment under the federal income tax laws governing qualified
retirement plans.
(2) If the board accepts a rollover contribution under this
section, the contribution shall be paid into the Public Employees
Retirement Fund and credited to an individual rollover account in
the name of the member who made the contribution. The rollover
account must be kept separate from the member account of the
member and must be invested separately from all other moneys in
the Public Employees Retirement Fund. All earnings on the
rollover account shall be credited by the board to the rollover
account. If the membership of the employee in the Public
Employees Retirement System is terminated under the provisions of
ORS 238.095 { + or section 7 of this 2003 Act + }, the board
shall cease investment of the amounts in the rollover account
and, after the effective date of the termination, shall no longer
credit earnings and losses to the rollover account.
(3) Except as provided in subsection (2) of this section,
amounts in a rollover account established under this section
shall be invested in the same manner as funds in regular
accounts. However, ORS 238.255 does not apply to rollover
accounts.
(4) Rollover contributions shall not be considered in
determining whether a member has contributed in each of five
calendar years for purposes of ORS 238.265 and 238.425 or for the
purpose of any other provision in this chapter { + and sections
1 to 19 of this 2003 Act + } relating to employee contributions.
(5) Amounts held in a rollover account under this section shall
be distributed to the member within 90 days after the member's
effective date of retirement under this chapter { + or sections
1 to 19 of this 2003 Act + }, or within 90 days after termination
of the person's membership in the system under ORS 238.095 { +
or section 7 of this 2003 Act + }.
(6) Distribution from a member's rollover account shall be made
in a single lump sum payment. Distribution from a member's
rollover account shall not affect the calculation of any other
service or disability retirement allowance, death benefit or
other benefit payable to a member under this chapter { + and
sections 1 to 19 of this 2003 Act + }.
(7) The board shall adopt rules and establish procedures for
determining whether a member will be allowed to make a rollover
contribution under this section. Rules and procedures adopted by
the board must ensure that the rollover contributions do not
adversely affect the status of the system and the Public
Employees Retirement Fund as a qualified governmental plan and
trust under federal income tax law.
(8) The board shall by rule establish a maintenance fee for
rollover accounts established under this section. The fee may be
collected out of earnings on rollover accounts or, if there are
no earnings, from the principal amounts paid into the rollover
accounts. The fee shall be in an amount determined by the board
to be adequate to pay the full cost to the system of maintaining
rollover accounts under this section.
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 19 of this 2003
Act + }, and the money in the various funds created by ORS
238.660 and 238.670, 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 19 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 19 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 238.455 is amended to read:
238.455. (1)(a) Whenever a member of the system is retired for
service and is entitled to receive a retirement allowance or
benefit which is payable monthly, and the board is unable to
calculate the amount of the monthly payment in time to allow
mailing of the monthly payment to the member within 62 days of
the date the first monthly payment is due, the board shall
calculate an estimated amount for the monthly payment based on
the information then available to the board and shall mail that
payment to the member within 62 days of the date the first
monthly payment is due.
(b) Whenever a member of the system is retired for disability
and is entitled to receive a retirement allowance or benefit
which is payable monthly, and the board is unable to calculate
the amount of the monthly payment in time to allow mailing of the
monthly payment to the member within 10 days of either the date
the board approves the member's application or the date that the
first monthly payment is due, whichever is later, the board shall
calculate an estimated amount for the monthly payment based on
the information then available to the board and shall mail that
payment to the member within 10 days of the date the board
approves the member's disability benefit, the date the board
receives the member's election of one of the optional forms of
disability retirement allowance or the date the first monthly
payment is due, whichever is later.
(2) The board shall continue to mail estimated payments under
subsection (1) of this section until such time as the correct
amount of the monthly payment is determined.
(3) The board shall notify the member receiving an estimated
payment under subsection (1) of this section that the payment is
an estimated payment only. The board shall further notify the
member of the provisions of subsection (4) of this section.
(4) If the board determines that any estimated payment made to
the member under subsection (1) of this section resulted in
payment to the member of an amount other than the correct amount
due the member as a retirement allowance or benefit, the board
shall immediately so notify the member. Thereafter, the board may
increase or decrease the monthly payment to the member until such
time as the total difference between the amount or amounts the
member received and the amount or amounts the member should have
received is accounted for. Thereafter the member shall receive
the monthly payment as finally calculated by the board.
(5) If the estimated payment made to the member under
subsection (1) of this section results in an underpayment to the
member of $10 or more a month, the board shall pay interest on
the balance of such underpayment at the rate credited to the
Public Employees Retirement Fund for the prior year until such
time as the underpayment is paid to the member pursuant to
subsection (4) of this section.
(6) No member shall have any right to any allowance or other
benefit other than that provided for in this chapter { + and
sections 1 to 19 of this 2003 Act + } based on the board's
estimate under this section or based on any other estimate made
by the board for any other purpose under this chapter { + and
sections 1 to 19 of this 2003 Act + }.
SECTION 30. ORS 238.460 is amended to read:
238.460. (1) If receipt in full by a person of a retirement
allowance { + or other benefit + } under this chapter { + or
sections 1 to 19 of this 2003 Act + } would prevent such person
from receiving in full any other governmental pension to which
the person is entitled, such person may waive for a calendar year
sufficient monthly payments, or portions thereof, of retirement
allowance { + or other benefit + } under this chapter { + or
sections 1 to 19 of this 2003 Act + } to permit the person to
receive in full the other governmental pension. The waiver shall
be made in writing and filed with the Public Employees Retirement
Board not less than 15 days before the first day of the month to
which the waiver applies.
(2) If for any month the waiver does not apply to the full
retirement allowance due { + under this chapter + }, the waiver
applies first to all or the necessary portion or prior service
pension, then to all or to the necessary portion of current
service pension, and then to the necessary portion of annuity.
(3) The waiver may be revoked at any time, but no retirement
allowance { + or other benefit + } waived for the period of time
in which the waiver is in effect shall be paid. The revocation
shall be made in writing and filed with the board. If a person
dies during the period of time in which the waiver is in effect,
the waiver is considered revoked on the date of such death.
SECTION 31. ORS 238.465, as amended by section 89, chapter 945,
Oregon Laws 2001, is amended to read:
238.465. (1) Notwithstanding ORS 238.445 or any other provision
of law, payments under this chapter { + or sections 1 to 19 of
this 2003 Act + } of any pension, annuity, retirement allowance,
disability benefit, death benefit, refund benefit or other
benefit that would otherwise be made to a person entitled thereto
under this chapter { + or sections 1 to 19 of this 2003 Act + }
shall be paid, in whole or in part, by the Public Employees
Retirement Board to an alternate payee if and to the extent
expressly provided for in the terms of any court decree of
annulment or dissolution of marriage or of separation, or the
terms of any court order or court-approved property settlement
agreement incident to any court decree of annulment or
dissolution of marriage or of separation. Notwithstanding any
other provisions of this section, the total value of benefits
payable to a member and to an alternate payee under this section
may not be greater than the value of the benefits the member
would otherwise be eligible to receive. Any payment under this
subsection to an alternate payee bars recovery by any other
person.
(2) A decree, order or settlement providing for payment to an
alternate payee under subsection (1) of this section may also
provide:
(a) That payments to the alternate payee may commence, at the
election of the alternate payee, at any time after the earlier
of:
(A) The earliest date the member would be eligible to receive
retirement benefits if the member separates from service; or
(B) The date the member actually separates from service due to
death, disability, retirement or termination of employment.
(b) That the alternate payee may elect to receive payment in
any form of pension, annuity, retirement allowance, disability
benefit, death benefit, refund benefit or other benefit, except a
benefit in the form of a joint and survivor annuity, that would
be available to the member under this chapter { + or sections 1
to 19 of this 2003 Act + }, or that would be available to the
member if the member retired or separated from service at the
time of election by the alternate payee, without regard to the
form of benefit elected by the member.
(c) That the alternate payee's life is the measuring life for
the purpose of measuring payments to the alternate payee under
the form of benefit selected by the alternate payee and for the
purpose of determining necessary employer reserves.
(d) Except as provided in ORS 238.305 (10) and 238.325 (7),
that any person designated by the member as a beneficiary under
ORS 238.300, 238.305 or 238.325 be changed, even though the
member has retired and has begun receiving a retirement
allowance. If a change of beneficiary is ordered under this
paragraph, the board shall adjust the anticipated benefits that
would be payable to the member and the beneficiary to ensure that
the cost to the system of providing benefits to the member and
the new beneficiary does not exceed the cost that the system
would have incurred to provide benefits to the member and the
original beneficiary. The decree, order or settlement may not
provide for any change to the option selected by the retired
member under ORS 238.300, 238.305, 238.320 or 238.325 as to the
form of the retirement benefit.
(3) The board shall adopt rules that provide for:
(a) The creation of a separate account in the name of the
alternate payee reflecting the decree's, order's or agreement's
distribution of the member's benefits under this chapter { + or
sections 1 to 19 of this 2003 Act + };
(b) The establishing of criteria to determine whether domestic
relations decrees, orders and agreements comply with this
section; and
(c) The definitions and procedures for the administration of
this section.
(4) If a decree, order or agreement awards an interest to an
alternate payee, and if the alternate payee predeceases the
member before the alternate payee has commenced receiving
benefits, the alternate payee shall be considered a member of the
system who died before retiring for the purposes of the death
benefits provided in ORS 238.390 and 238.395 { + and section 15
of this 2003 Act + }, but for purposes of the death benefits
provided in ORS 238.395, the alternate payee shall be considered
a member of the system who died before retiring only if the
member would have been eligible for death benefits under ORS
238.395 had the member died at the same time as the alternate
payee. Payment of the death benefits to the beneficiaries, estate
or other persons entitled to receive the benefits under ORS
238.390 and 238.395 { + and section 15 of this 2003 Act + }
shall constitute payment in full of the alternate payee's
interest under the decree, order or agreement.
(5) Any increase in the retirement allowance provided to the
member shall increase the amounts paid to the spouse or former
spouse of the member in the same proportion, except that an
alternate payee is not entitled to receive cost-of-living
adjustments under ORS 238.360 or any other retirement allowance
increase until benefits are first paid from the system on behalf
of the member.
(6) An alternate payee under this section is not eligible to
receive the benefits provided under ORS 238.410, 238.415, 238.420
and 238.440 by reason of the provisions of this section.
(7) An alternate payee who elects to begin receiving payments
under subsection (1) of this section before the member's
effective date of retirement is not eligible to receive any
additional payment by reason of credit in the system acquired by
the member after the alternate payee begins to receive payments.
(8) Subsection (1) of this section applies only to payments
made by the board after the date of receipt by the board of
written notice of the decree, order or agreement and such
additional information and documentation as the board may
prescribe.
(9) Whenever the board is required to make payment to an
alternate payee under the provisions of this section, the board
shall charge and collect out of the benefits payable to the
member and the alternate payee actual and reasonable
administrative expenses and related costs incurred by the board
in obtaining data and making calculations that are necessary by
reason of the provisions of this section. The board may not
charge more than $300 for total administrative expenses and
related costs incurred in obtaining data or making calculations
that are necessary by reason of the provisions of this section.
The board shall allocate expenses and costs charged under the
provisions of this subsection between the member and the
alternate payee based on the fraction of the benefit received by
the member or alternate payee.
(10) As used in this section, 'court' means any court of
appropriate jurisdiction of this or any other state or of the
District of Columbia.
SECTION 32. 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 { + and sections 1 to 19 of this 2003 Act + }, 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 as a qualified
governmental retirement plan and trust 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 under the Internal Revenue Code as a governmental
retirement plan and trust.
(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.
(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 33. ORS 238.645 is amended to read:
238.645. The system shall be administered, subject to the
limitations of this chapter { + , sections 1 to 19 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 34. ORS 238.650 is amended to read:
238.650. (1) Subject to the limitations of this chapter { +
and sections 1 to 19 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 as a qualified governmental retirement plan and
trust under the Internal Revenue Code and under regulations
adopted pursuant to the Internal Revenue Code.
SECTION 35. ORS 238.660 is amended to read:
238.660. (1) The Public Employees Retirement Fund is declared
to be a trust fund, separate and distinct from the General Fund,
for the uses and purposes set forth in this chapter and ORS
237.950 to 237.980 { + and sections 1 to 19 of this 2003
Act + }, and for no other use or purpose, except that this
provision shall not be deemed to amend or impair the force or
effect of any law of this state specifically authorizing the
investment of moneys from the fund. Interest earned by the fund
shall be credited to the fund. Except as otherwise specifically
provided by law, the Public Employees Retirement Board
established by ORS 238.630 is declared to be the trustee of the
fund. Consistent with the legislative intent expressed in ORS
238.601, and to the extent it is consistent with the board's
fiduciary duties, the board shall give equal consideration to the
interests of participating public employers and the interests of
members. Nothing in this subsection shall be construed to impose
a fiduciary duty on the board to consider the interests of public
employers, and the board shall consider the interests of public
employers only with respect to matters unrelated to the board's
fiduciary duties as trustee of the fund.
(2) Until all liabilities to members and their beneficiaries
are satisfied, assets of the fund may not be diverted or
otherwise put to any use that is not for the exclusive benefit of
members and their beneficiaries. This subsection does not limit
return of employer contributions for health benefits in the
manner provided by ORS 238.410, 238.415 and 238.420 upon
satisfaction of all liabilities for health benefits under those
sections.
(3) The State of Oregon and other public employers that make
contributions to the fund have no proprietary interest in the
fund or in the contributions made to the fund by them. The state
and other public employers disclaim any right to reclaim those
contributions and waive any right of reclamation they may have in
the fund. This subsection does not prohibit alteration or refund
of employer contributions if the alteration or refund is
authorized under this chapter { + or sections 1 to 19 of this
2003 Act + } and is due to erroneous payment or decreased
liability for employer contributions under the system.
(4) The board may accept gifts of money or other property from
any source, given for the uses and purposes of the system. Money
so received shall be paid into the fund. Money or other property
so received shall be used for the purposes for which received.
Unless otherwise prescribed by the source from which the money or
other property is received, the money shall be considered as
income of the fund and the other property shall be retained,
managed and disposed of as are investments of the fund.
(5) All moneys paid into the fund shall be deposited with the
State Treasurer, who shall be custodian of the fund and pay all
warrants drawn on it in compliance with law. No such warrant
shall be paid until the claim for which it is drawn is first
approved by the director or designee and otherwise audited and
verified as required by law. Monthly, each beneficiary's gross
benefit shall be calculated; applicable deductions made for
taxes, insurance and other withholdings; and the net amount paid
to the beneficiary, by check or by electronic funds transfer
(EFT) to the beneficiary's bank. A deduction summary shall be
made, by type, and a check issued for the aggregate of each type
for transmittal to the appropriate taxing jurisdiction, vendor or
institution. A voucher shall be prepared and transmitted to the
Oregon Department of Administrative Services for reimbursement of
the checking account, and the department shall draw a warrant on
the State Treasurer, payable to the Public Employees Retirement
System, for the amount thereof.
(6) Any warrant, check or order for the payment of benefits or
refunds under the system out of the fund issued by the board
which is canceled, declared void or otherwise made unpayable
pursuant to law because it is outstanding and unpaid for a period
of more than two years, may be reissued by the board without bond
if the payee is located after such warrant, check or order is
canceled, declared void or otherwise made unpayable pursuant to
law.
(7) All references in this chapter to checks or warrants are
subject to the provisions of ORS 291.001 (1).
(8) The board shall provide for an annual audit of the
retirement fund and for an annual report to the Legislative
Assembly and to all members of, retirees of, and all employers
participating in, the system. The annual report must contain
financial statements prepared in accordance with generally
accepted accounting principles. The financial statements must
include the report of any independent auditor.
SECTION 36. ORS 238.661 is amended to read:
238.661. Moneys in the Public Employees Retirement Fund are
continuously appropriated to the Public Employees Retirement
Board to carry out the purposes of this chapter { + and sections
1 to 19 of this 2003 Act + }.
SECTION 37. ORS 238.665 is amended to read:
238.665. Contributions required by this chapter { + or
sections 1 to 19 of this 2003 Act + } to be placed in the
retirement fund, and interest required to be allocated to the
member accounts of members of the retirement system and to
participating employers, shall not be included in the biennial
departmental budget of the board.
SECTION 38. ORS 238.675 is amended to read:
238.675. (1)(a) Any benefit payment that is payable as the
result of the death of a member may be transferred by the Public
Employees Retirement Board to another account or reserve in the
fund if:
(A) The total benefit payable to the beneficiaries designated
by the deceased member is less than $250 in amount;
(B) Ten years have passed since the death of the member; and
(C) No claim has been made for the benefit payment.
(b) Amounts transferred under this section shall be credited to
accounts or reserves in the fund designated by the board in its
discretion.
(c) The board shall establish procedures for the filing of a
delayed claim by a beneficiary of a deceased member who would
otherwise be entitled to receive a benefit payment. Delayed
claims may be filed after the 10-year period provided for in
paragraph (a) of this subsection.
(2)(a) The Public Employees Retirement Board may transfer the
amount credited to the member account of a former member to
another account or reserve in the fund if:
(A) The total amount credited to the member account of the
former member is less than $250;
(B) The membership of the person in the system has been
terminated under the provisions of ORS 238.095 (2) { + or
section 7 of this 2003 Act + }; and
(C) Ten years have passed since the former member ceased to be
a member of the system and no claim has been made for payment of
the amount credited to the member account of the former member.
(b) Amounts transferred under this section shall be credited to
reserves or accounts in the fund designated by the board in its
discretion.
(c) The board shall establish procedures for the filing of a
delayed claim by a former member of the system who would
otherwise be entitled to receive amounts credited to the member
account of the former member. Delayed claims may be filed after
the 10-year period provided for in paragraph (a) of this
subsection.
SECTION 39. 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 19 of this
2003 Act + }.
SECTION 40. 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
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. 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 19 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 41. 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 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 19 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 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 and who
subsequently becomes entitled to receive a monthly payment from
the fund.
(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 subsequently becomes
entitled to receive a lump sum payment from the fund.
(3) Unless the member or other person receiving a monthly
payment from the fund 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 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 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 42. ORS 238.750 is amended to read:
238.750. This chapter { + and sections 1 to 19 of this 2003
Act + } shall be known as the Public Employes' Retirement Act
{ - of 1953 - } .
SECTION 43. ORS 243.105 is amended to read:
243.105. As used in ORS 243.105 to 243.285, unless the context
requires otherwise:
(1) 'Benefit plan' includes, but is not limited to, contracts
for insurance or other benefit based on life; supplemental
medical, supplemental dental, optical, accidental death or
disability insurance; group medical, surgical, hospital or any
other remedial care recognized by state law; and related services
and supplies. 'Benefit plan' includes comparable benefits for
employees who rely on spiritual means of healing.
(2) 'Board' means the Public Employees' Benefit Board.
(3) 'Carrier' means an insurance company or health care service
contractor holding a valid certificate of authority from the
Director of the Department of Consumer and Business Services, or
two or more companies or contractors acting together pursuant to
a joint venture, partnership or other joint means of operation,
or a board-approved guarantor of benefit plan coverage and
compensation.
(4)(a) 'Eligible employee' means an officer or employee of a
state agency who elects to participate in one of the group
benefit plans described in ORS 243.135. The term includes state
officers and employees in the exempt, unclassified and classified
service, and state officers and employees, whether or not
retired, who:
(A) Are receiving a service or disability retirement allowance
under the Public Employees Retirement System or are receiving a
service or disability retirement allowance or pension under any
other retirement or disability benefit plan or system offered by
the State of Oregon for its officers and employees;
(B) Are eligible to receive a service retirement allowance
under the Public Employees Retirement System and have reached
earliest retirement age under ORS chapter 238;
{ + (C) Have attained the age prescribed by section 16 of
this 2003 Act and are receiving an annuity or other payout or are
eligible to receive an annuity or other payout under section 17
of this 2003 Act; + } or
{ - (C) - } { + (D) + } Are eligible to receive a service
retirement allowance or pension under another retirement benefit
plan or system offered by the State of Oregon and have attained
earliest retirement age under the plan or system.
(b) 'Eligible employee' does not include individuals:
(A) Engaged as independent contractors;
(B) Whose periods of employment in emergency work are on an
intermittent or irregular basis;
(C) Who are employed on less than half-time basis unless the
individuals are employed in positions classified as job-sharing
positions or unless the individuals are defined as eligible under
rules of the board;
(D) Appointed under ORS 240.309;
(E) Provided sheltered employment or made-work by the state in
an employment or industries program maintained for the benefit of
such individuals; or
(F) Provided student health care services in conjunction with
their enrollment as students at the state institutions of higher
education.
(5) 'Family member' means an eligible employee's spouse and any
unmarried child or stepchild within age limits and other
conditions imposed by the board with regard to unmarried children
or stepchildren.
(6) 'Payroll disbursing officer' means the officer or official
authorized to disburse moneys in payment of salaries and wages of
employees of a state agency.
(7) 'Premium' means the monthly or other periodic charge for a
benefit plan.
(8) 'State agency' means every state officer, board,
commission, department or other activity of state government.
SECTION 44. 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 19 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 19 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 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
{ + and section 7 of this 2003 Act + } 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 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 { + and sections 1 to 19 of this
2003 Act + } unless the employee withdraws the amounts credited
to the member account of the member pursuant to ORS 238.265.
(7) Any withdrawals from the Public Employees Retirement Fund
under subsection (6) of this section, whether by termination
under subsection (6)(a) of this section or by elective withdrawal
under subsection (6)(b) 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 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.
(9) The State Board of Higher Education shall contribute
monthly to the optional retirement plan authorized under this
section the 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.
(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 45. 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
19 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 19 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 46. 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 - } , 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 - } ,
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. 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 shall be invested in the same
manner as moneys of the Public Employees Retirement Fund 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 - } , 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 - } , the amounts of
contributions by the board paid into the Public Employees
Retirement Fund 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 47. 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 19 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 employer
under ORS chapter 238 { + and sections 1 to 19 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 19 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 19 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 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 48. 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 19
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 49. 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 19 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 50. 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 19 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 51. ORS 353.250 is amended to read:
353.250. Notwithstanding the provisions of ORS chapter 238
{ + and sections 1 to 19 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 52. 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 19 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 53. 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 19 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 54. 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 19 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 55. ORS 656.725 is amended to read:
656.725. (1) Individuals holding the position of Administrative
Law Judge created by the amendments to ORS 656.724 by section 51,
chapter 332, Oregon Laws 1995, have the authority to perform only
those duties, functions and powers provided in ORS chapters 654,
655 and 656, and such other duties, functions and powers as may
be prescribed by the Workers' Compensation Board pursuant to ORS
656.726.
(2) Administrative Law Judges are not judges for the purposes
of any provision of the Oregon Constitution and are not judges
for the purposes of judges' retirement under ORS chapter 238 { +
and sections 1 to 19 of this 2003 Act + }.
SECTION 56. 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 19 of this
2003 Act + }.
{ +
CAPTIONS + }
SECTION 57. { + 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 58. { + 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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