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OREGON PUBLIC EMPLOYEES RETIREMENT SYSTEM

 

DIVISION 1

PROCEDURAL RULES

459-001-0000

Notice of Proposed Rule

Prior to adoption, amendment or repeal of any permanent rule, the Public Employees Retirement System (PERS) shall give notice of the intended action:

(1) In the Secretary of State's Bulletin referred to in ORS 183.360, at least 21 days prior to the effective date.

(2) By mailing, or transmitting by email if the recipient has elected that option, notice to persons on the PERS mailing list established pursuant to ORS 183.335(7) at least 28 days before the effective date of the rule.

(3) By mailing, or transmitting by email if the recipient has elected that option, or furnishing notice to the following publications:

(a) Associated Press;

(b) Daily Journal of Commerce;

(c) Northwest Labor Press;

(d) Capitol Press Room.

(4) By mailing, or transmitting by email if the recipient has elected that option, or furnishing notice to the following persons, organizations and publications at least 28 days before the effective date of the rule:

(a) Oregon Public Employees Union;

(b) Oregon Education Association;

(c) Association of Oregon Counties;

(d) League of Oregon Cities;

(e) Oregon School Board Association;

(f) Confederation of Oregon School Administrators;

(g) Association of Engineering Employees of Oregon;

(h) Local Government Personnel Institute;

(i) American Federation of State, County and Municipal Employees;

(j) Oregon State Firefighters Council;

(k) Department of Public Safety Standards and Training;

(l) Oregon Association of Chiefs of Police;

(m) Oregon Federation of Teachers, Education and Health Professionals;

(n) Oregon School Employees Association;

(o) Oregon Community College Association;

(p) Oregon State Sheriffs Association;

(q) Oregon State System of Higher Education;

(r) Oregon Council of Police Associations;

(s) Special District Association of Oregon;

(5) By mailing a Notice of Rulemaking and a copy of the proposed rule(s) to the Director of the Department of Administrative Services and, to the extent identified, affected participating public employers in the System.

(6) By mailing a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule.

Stat. Auth.: ORS 183.335 & 238.650
Stats. Implemented:
Hist.: PER 13, f. & ef. 10-26-76; PER 4-1981, f. & ef. 1-15-81; PER 1-1982, f. 11-22-82, ef. 1-1-83; PERS 3-1994, f. & cert. ef. 5-10-94; PERS 14-2004, f. & cert. ef. 6-15-04

459-001-0005

Model Rules of Procedure

The Attorney General’s Model Rules of Procedure under the Administrative Procedures Act, as adopted and effective January 31, 2012, are adopted as rules of procedure of the Public Employees Retirement Board, except as modified by other rules of the Board.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or the Oregon Public Employees Retirement System.]

Stat. Auth.: ORS 183.341, 237.470, 238.650, 238A.450 & 243.470
Stats. Implemented: ORS 237.410 - 237.620, chapters 238, 238A & 243.401-243.507
Hist.: PER 11, f. 4-18-72, ef. 5-1-72; PER 12, f. 3-14-74, ef. 4-11-74; PER 13, f. & ef. 10-26-72; Renumbered from 459-030-0005; PER 2-1978, f. & ef. 11-2-78; PER 1-1980, f. & ef. 2-15-80; PER 1-1986, f. & ef. 7-7-86; PERS 2-1990, f. & cert. ef. 1-8-90; PERS 1-1992, f. & cert. ef. 1-14-92; PERS 4-1994, f. & cert. ef. 5-10-94; PERS 3-1995, f. 11-14-95, cert. ef. 11-15-95; PERS 1-1998, f. & cert. ef. 3-16-98; PERS 4-2000, f. & cert. ef. 7-14-00; PERS 11-2001, f. 12-14-01, cert. ef. 1-1-02; PERS 25-2004, f. 11-23-04, cert. ef. 12-1-04; PERS 10-2006, f. & cert. ef. 6-26-06; PERS 7-2008, f. & cert. ef. 4-4-08; PERS 5-2014, f. & cert. ef. 3-31-14

459-001-0010

Filing Papers

(1) Notwithstanding OAR 459-005-0210, all petitions, written requests, documents or other papers, related to the appeal of a staff or Board action, that are required to be filed with, or which a person desires to submit to, the Board or the Director, shall be personally delivered or mailed to the Director of the Public Employees Retirement System, 11410 SW 68th Parkway, Tigard, OR 97223-8680, or P.O. Box 23700, Tigard, OR 97281-3700.

(2) A filing shall be effective upon personal service or actual receipt in the office of the Director in accordance with OAR 459-005-0220.

Stat. Auth.: ORS 183.341 & ORS 238.650
Stats. Implemented: ORS 238.005 – ORS 238.715 & ORS 237.410 – ORS 237.620
Hist.: PER 11, f. 4-18-72, ef. 5-1-72; PER 12, f. 3-14-74, ef. 4-11-74; Renumbered from 459-030-0010; PER 3-1981, f. & ef. 1-15-81; PERS 4-1990, f. & cert. ef. 3-26-90; PERS 6-2000, f. & cert. ef. 9-28-00

459-001-0015

Conduct of Meetings of the Board

(1) Meetings of the Board shall be conducted by and shall be under the control of the Chair of the Board. In the Chair's absence, the Vice Chair shall preside. In the absence of both the Chair and the Vice Chair, the Board shall designate, by a majority vote, one of its members to preside.

(2) At the commencement of the Board meeting, any member of the public wishing to be heard on an item on the agenda shall advise the Chair of that person's name, address, and affiliation. Such person(s) may be heard at the discretion of the Chair.

(3) The Chair may set reasonable time limits for oral presentation by members of the public, and may exclude or limit cumulative, repetitious, or immaterial matter.

(4) The Chair, or any member of the Board, shall have the right to question or examine any member of the public making a presentation at the board meeting. The Chair may permit others to examine such persons.

(5) No rebuttal or additional statements by any member of the public shall be permitted by the Chair, unless allowed by the Chair.

(6) If the number of persons wishing to be heard on a scheduled agenda item exceeds the number the Chair believes can be reasonably accommodated during the time available to the Board for the meeting, the Chair may require persons wishing to be heard to submit their views by written statements rather than orally. With the approval of the majority of the Board, the Chair may also schedule a special hearing on the subject at a future time and date before a Hearings Officer designated by the Chair. If such special hearing is scheduled by the Chair, the designated Hearings Officer shall reduce witness statements to a condensed written report and provide it to members of the Board on or before a date set by the Chair.

(7) The Chair may, where practicable, receive all physical and documentary evidence presented by members of the public permitted to be heard at a Board meeting. Exhibits shall be marked and shall identify the person offering the exhibit. Exhibits shall be preserved by the System for one year, or at the discretion of the Chair, returned to the person offering the exhibit.

(8) A verbatim oral, written, or mechanical record shall be made of all meetings of the Board, or, in the alternative, a record in the form of minutes of the Board.

(9) Members of the public wishing to be heard by the Board on subjects not scheduled on the agenda may be heard at the discretion of the Chair.

(10) The Board may exclude members of the public from an executive session of a meeting of the Board to the extent permitted by ORS 192.660.

(11) No final action may be taken by the Board in an executive session. When an executive session is held in conjunction with a public session, the Board shall return to public session before taking a final action.

(12) A notice of an executive session that is not held in conjunction with a public session shall inform the public and interested persons of time and place at which a public session will be held to make a final or formal decision.

(13) Representatives of the news media shall be allowed to attend an executive session of a Board meeting other than those held under ORS 192.660(1)(d). The Board requires that all discussion and information provided in an executive session be undisclosed unless disclosure is specifically authorized by the Board.

(14) No person shall smoke any cigar, cigarette, or tobacco in any form in any meeting of the Board.

Stat. Auth.: ORS 192.610 - 192.710 & 238.650
Stats. Implemented:
Hist.: PER 1-1978, f. & ef. 9-1-78; PERS 5-1994, f. & cert. ef. 5-10-94; PERS 21-2005, f. & cert. ef. 11-1-05

459-001-0025

Delegation to Director and Staff

(1) The Director is hereby authorized to take all action necessary or desirable to administer the system including but not limited to:

(a) Design application and other forms;

(b) Act on any application for refund of contributions; crediting service, correction of records, retirement for disability or service, and death benefits and allowances;

(c) Calculate and authorize payment of refunds, allowances or benefits except as provided in OAR chapter 459, division 15;

(d) Require medical, vocational or other professional examinations of disability retirement benefits applicants and recipients;

(e) Reinstate persons from disability retirement upon the Director’s determination that disability does not exist; and

(f) Initially review, grant or deny petitions for reconsiderations. The Director may deny any petition:

(A) Which does not contain specific grounds for reconsideration; or

(B) Regarding which there is no bona fide dispute of material fact, the pertinent statutes and rules are clear in their application to the facts and there was no material administrative error.

(g) Define and settle administrative and court litigation.

(2) The Director may refer any matter to the Board or to an administrative law judge for a contested case or other hearing.

(3) The Director is hereby authorized to delegate to subordinates the authority to take any action on the Director’s behalf.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 183.413 - 183.470 & 183.482
Hist.: PERS 4-1990, f. & cert. ef. 3-26-90; PERS 21-2005, f. & cert. ef. 11-1-05; PERS 3-2012, f. & cert. ef. 3-28-12

459-001-0030

Review of Staff Actions and Determinations Regarding Persons

(1) For purposes of this rule, “Director” means the executive director of PERS, or an administrator appointed by the executive director.

(2) Request for review. Any person may file with the Director a request for review of a staff action or determination, except as provided for in ORS 238.285, 238.450 or in Board rules on disability retirement. The request must be filed within 60 days following the date the staff action or determination is sent to the person requesting review.

(3) Informal conferences. Informal conferences are available as an alternative means that may achieve resolution of any matter under review. A request for an informal conference does not change the time limit to file a request for review.

(4) Criteria for request. A request for review of a staff action or determination must be in writing and set forth:

(a) A description of the staff action or determination for which review is requested;

(b) A short statement of the manner in which the action is alleged to be in error;

(c) A statement of facts that are the basis of the request;

(d) Reference to applicable statutes, rules or court decisions relied upon;

(e) A statement of the relief requested; and

(f) A request for review.

(5) Denial of request. The Director may deny any request for review within 45 days of receipt of the request:

(a) If the request does not contain the information required under section (4) of this rule; or

(b) When, in the Director's view, there is no bona fide dispute of material fact, the pertinent statutes and rules are clear in their application to the facts, and there is no material administrative error.

(6) If a request is denied by the Director because it does not contain the information required under section (4) of this rule, a requester will have one opportunity to correct that deficiency and resubmit a request for review within 45 days of the date of denial.

(7) Approval of request. If the request for review is granted, the Director must issue a written determination within 45 days of receipt of the request after:

(a) Considering the request;

(b) Directing staff to reconsider; or

(c) Directing staff to schedule an informal conference.

(8) Extension of deadline. Any 45-day deadline within this rule may be extended upon request in writing for an additional 45 days.

(9) Resolution process.

(a) In lieu of issuing a written determination, the Director may direct staff to schedule a formal contested case hearing. The hearing must be conducted in accordance with the Attorney General’s Model Rules of Procedure.

(b) If a request is denied or the Director's determination is not the relief sought by the person, and the Director did not cause a contested case hearing to be scheduled, a person may file with the Board a request for a contested case hearing pursuant to the Attorney General’s Model Rules of Procedure.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 183.413 - 183.470
Hist.: PERS 4-1990, f. & cert. ef. 3-26-90; PERS 5-1990, f. & cert. ef. 12-3-90; PERS 10-2001, f. 12-14-01, cert. ef. 1-1-02; PERS 2-2008, f. & cert. ef. 4-2-08; PERS 2-2014, f. & cert. ef. 1-31-14

459-001-0032

Review of Staff Actions and Determinations Regarding Public Employers

(1) For purposes of this rule, “Director” means the executive director of PERS, or an administrator appointed by the executive director.

(2) Request for review. Any public employer may file with the Director a request for review of a staff action or determination, except as provided in ORS 238.450 or in Board rules on disability retirement. The request must be filed within 60 days following the date the staff action or determination is sent to the public employer requesting review.

(3) Informal conferences. Informal conferences are available as an alternative means that may achieve resolution of any matter under review. A request for an informal conference does not change the time limit to file a request for review.

(4) Criteria for request. A request for review of a staff action or determination must be in writing and set forth:

(a) A description of the staff action or determination for which review is requested;

(b) A short statement of the manner in which the action is alleged to be in error;

(c) A statement of facts that are the basis of the request;

(d) Reference to applicable statutes, rules or court decisions relied upon;

(e) A statement of the relief requested; and

(f) A request for review.

(5) Denial of request. The Director may deny any request for review within 45 days of receipt of the request:

(a) If the request does not contain the information required under section (4) of this rule; or

(b) When, in the Director's view, there is no bona fide dispute of material fact, the pertinent statutes and rules are clear in their application to the facts, and there is no material administrative error.

(6) If a request is denied by the Director because it does not contain the information required under section (4) of this rule, a requester will have one opportunity to correct that deficiency and resubmit a request for review within 45 days of the date of denial.

(7) Approval of request. If the request for review is granted, the Director must issue a written determination within 45 days of receipt of the request after:

(a) Considering the request;

(b) Directing staff to reconsider; or

(c) Directing staff to schedule an informal conference.

(8) Extension of deadline. Any 45-day deadline within this rule may be extended upon request in writing for an additional 45 days.

(9) Resolution process for state agency employers. If a request is denied or the Director's determination is not the relief sought by the employer, and the employer is a state agency subject to the dispute resolution provisions of OAM policy 35.70.30.PO, the Interagency Dispute Resolution Process, then the dispute must be resolved in accordance with that policy.

(10) Resolution process for non-state agency employers. If a request is denied or the Director's determination is not the relief sought by the employer, and the employer is not a state agency subject to the dispute resolution provisions of OAM policy 35.70.30.PO, then the employer can request the issue to be addressed by arbitration, mediation, or a contested case.

(a) If the employer requests arbitration, PERS and the employer will as closely as possible parallel the process outlined in OAM policy 35.70.30.PO for state agency employers.

(b) If the employer requests a contested case, the process will be conducted pursuant to the Attorney General’s Model Rules of Procedure.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 183.413 - 183.470
Hist.: PERS 3-2008, f. & cert. ef. 4-2-08

459-001-0035

Contested Case Hearing

(1) Request for a contested case hearing. To obtain review of any determination made under OAR 459-001-0030 or 459-001-0032 for which a contested case hearing has not been held, the party must file with the Board a request for a contested case hearing. The request must be filed within 45 days following the date of the Director's determination.

(2) Informal conferences. Informal conferences are available as an alternative means that may achieve resolution of any matter under review. A request for an informal conference does not relieve a person of the requirements for timely filing of a request for a contested case hearing.

(3) Criteria for request. The request for a contested case hearing must be in writing and set forth:

(a) A description of the determination for which review is requested;

(b) A short statement of the manner in which the determination is alleged to be in error;

(c) A statement of facts that are the basis of the request;

(d) Reference to applicable statutes, rules or court decisions upon which the requester relies;

(e) A statement of the action the request seeks; and

(f) A request for a hearing.

(4) The Director, or an administrator appointed by the Director, may direct the staff to schedule a formal contested case hearing or develop a recommendation to deny the member's request to be presented to the Board. The Board may then deny a request for a hearing when it has decided, in consultation with legal counsel, that the Board has no authority to grant the relief requested.

(5) The hearing must be conducted in accordance with the Attorney General's Model Rules of Procedure. Parties to the hearing will include the requester, any other person named as a party, and any other person who petitions to participate and is determined to have an interest in the outcome of the proceeding.

(6) The Board generally deliberates and decides on final orders during regularly scheduled board meetings. The Board may instead deliberate and decide at any other time and place allowed by law, as determined on a case-by-case basis, such as electronically or via a telephone conference.

Stat. Auth.: ORS 238.650, 183.464 & 183.600 - 183.690
Stats. Implemented: ORS 183.413 - 183.470
Hist.: PERS 4-1990, f. & cert. ef. 3-26-90; PERS 10-2001, f. 12-14-01, cert. ef. 1-1-02; PERS 21-2005, f. & cert. ef. 11-1-05; PERS 11-2006, f. & cert. ef. 6-26-06; PERS 2-2008, f. & cert. ef. 4-2-08

459-001-0040

Petitions for Reconsideration

(1) Petition for reconsideration. Before initiating any judicial review of a final order in a contested case, a party may file with the Board a petition for reconsideration. If the party chooses to file a petition, it must be filed within 60 days following the date the order becomes final. Written argument from a petitioner must be submitted with the petition.

(2) Board action. The Board may either grant or deny a petition for reconsideration within 60 days of filing. If the Board does not grant or deny the petition within 60 days of filing, the petition shall be deemed denied.

(3) Staff action. If the petition for reconsideration is granted, the Board must enter a new final order in accordance with OAR 137-003-0675 and may consider written argument from the Director on the merits of the petition. The Board may schedule oral argument in its discretion.

Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 183.413 - 183.470 & 183.482
Hist.: PERS 4-1990, f. & cert. ef. 3-26-90; PERS 10-2001, f. 12-14-01, cert. ef. 1-1-02; PERS 11-2006, f. & cert. ef. 6-26-06; PERS 2-2008, f. & cert. ef. 4-2-08

459-001-0090

Statement of Intention and Understanding

Unless specifically expressed to the contrary, no rule adopted by the Board, nor the amendment or revocation of an existing rule, after the effective date of this rule is intended to or shall be construed or relied upon to create any contractual right.

Stat. Auth.: 238.650
Stats. Implemented: ORS 237.410 - 237.637, 238.005 - 238.715 & 243.401 - 243.507
Hist.: PERS 8-2002, f. & cert. ef. 6-13-02

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