of Elected or Appointed Officers
238.015(5), a person holding an elective or appointive office with a fixed
term, or an office as head of a department to which the person is appointed by
the Governor, may become a PERS member by giving written notice within 30 days
after taking office if the person had already established PERS membership, or
within 30 days after completing the six month waiting period required to become
a member under ORS 238.015(1), if the person had not previously established
membership. OAR 459-010-0180, which has not been updated since 1998, was
written as an “opt-out” of PERS, specifying how such a person would cancel
their membership at the end of the term by giving written notice to PERS.
Rather, the statute above is structured as an “opt-in” to PERS. The rule
modifications properly align the rule with the “opt-in” structure of the
Board Adoption: 09/29/2017
Board Adoption Memo
The PERS Board reviews the assumed rate in odd-numbered years as part of the Board's adoption of actuarial methods and assumptions. That rate is then adopted in an administrative rule at the time the Board sets the new rate. On July 28, 2017, the PERS Board adopted a 7.20% assumed rate.
The rule specifies that the adopted assumed rate will be effective for PERS transactions with an effective date of January 1, 2018, consistent with this Board’s policy decision from 2013 that the assumed rate will be effective January 1 following the Board’s adoption of the rate. A January 1 effective date also provides equitable treatment to all members who retire in a year that a change is adopted, no matter which month they retire. The adopted assumed rate will be aligned with the new actuarial equivalency factors (AEFs), which will allow for a clear effective date for all transactions that involve calculations using both the rate and AEF components.
Electronic Funds Transfer (EFT)
ORS 293.525 allows state agencies to require payments via Electronic Funds Transfer (EFT). In 2005, PERS began requiring public employers to make payments via EFT, which provides for safer, more efficient processing of payments. However, the definition of “public employer” in OAR 459-005-0225 included non-PERS participating employers that pay only an annual fee to PERS for their share of the expenses incurred in administering the state Social Security Program, as required by ORS 237.500.
Currently, 889 PERS-participating employers pay this annual fee via EFT, and 189 non-PERS participating employers pay the annual fee via check. The non-PERS participating employers make no other payments to PERS, and to require the Social Security annual fee be paid by EFT would put an undue burden on these small employers that typically only have a few employees.
To continue allowing non-PERS participating employers to pay the Social Security annual fee via check, the amendments to OAR 459-005-0225 were adopted to clarify that the EFT requirements apply only to PERS-participating employers.
ORS 238.670(1)(a) authorizes the PERS Board to use funds in the Contingency Reserve established under ORS 238.670(1) to “prevent any deficit in the fund by reason of the insolvency of a participating public employer.” Note that the funding
for this purpose can only come from earnings from employers deposited in the Contingency Reserve; $25 million has currently been set aside in the reserve for this purpose.
The Board has not previously used the Contingency Reserve to address the liabilities of insolvent employers, principally because there has never been a framework to determine that an employer is insolvent. There are a number of PERS employers that have ceased to exist as ongoing entities; many of them have remaining PERS liabilities, whether outstanding invoices or unfunded actuarial liabilities.
The new administrative rule provides a definition of insolvent employer to assist in assessing when the Contingency Reserve can be used for this purpose. A simple balance sheet analysis is not sufficient to determine solvency; PERS should also determine whether the liabilities of the entity have been assigned to or assumed by another entity. Once PERS determines, after making all reasonable efforts to collect as required by OAR 459-005-0620, that there is no resource from which to collect, then PERS will consider whether the employer is insolvent.
Forfeited Service Credit
OAR 459-011-0050 was adopted to address PERS administration of membership forfeiture and restoration. However, that rule only addresses the voluntary redeposit under ORS 238.105. That rule does not address the restoration of forfeited time by the purchase that is available under ORS 238.115 nor does it clarify that restoration under ORS 238.115 is not available to those who lost their membership rights through LOM. The proposed rule modifications provide these clarifications. Given that these statutes do not use consistent terminology, staff has been inconsistent in applying these provisions to members who are trying to restore their prior service and accounts so the rule modifications draw these distinctions more clearly. Members’ expectations about whether they can restore these rights have also been inconsistently communicated, so the rule modifications will provide that clarity as well. Given the inconsistencies in the statutes, PERS does not intend to review prior purchases but has directed staff to follow these strictures on a going-forward basis. The rule has been modified to allow purchases of Loss of Membership (LOM) time through
December 1, 2017 effective retirement dates.
2017 Internal Revenue Code (IRC) Annual Limitations
The Internal Revenue Service (IRS) revises various dollar limits annually based on cost-of-living adjustments. These revisions are used throughout the PERS plan’s statutes and rules, but revisions to the limits must be adopted by the legislature or PERS Board to be effective.
The adopted rule modifications incorporate these federal adjustments and are necessary to ensure compliance with the IRC’s limits on the amount of annual compensation allowed for determining contributions and benefits, annual benefits, and annual additions to PERS.