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OREGON PUBLIC EMPLOYEES RETIREMENT SYSTEM









 

DIVISION 10
MEMBERSHIP

459-010-0000
Purpose and Authority
(1) In accordance with ORS 238.650, membership in PERS shall be administered by PERS under the policies and procedures established by the Board.
(2) The Board adopts the rules of Chapter 459, Division 010, to define and clarify, and to establish procedures for the efficient administration of membership in PERS in accordance with the provisions of ORS Chapter 238.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238

Hist.: PERS 12-1998, f. & cert. ef. 12-17-98
459-010-0003
Eligibility and Membership for the PERS Chapter 238 Program
(1) For the purpose of this rule:
(a) “Concurrent positions”
means employment with two or more participating employers in the same calendar year.
(b) “Partial year of
hire” means a period in the calendar year the employee begins employment after
the first working day of the year, and continues employment through December 31.
(c) “Partial year of
separation” means a period in the calendar year the employee separates from
employment that begins on January 1 of the year and ends before the last working
day of the year.
(d) “Qualifying position”
means a position designated by the employer as qualifying, including a position
in a partial year of hire, partial year of separation, or short segment, except:
(A) A position or concurrent
positions in which an employee performs at least 600 hours of service in a calendar
year is qualifying regardless of employer designation.
(B) A position in a partial
year of separation is qualifying regardless of employer designation if the position
is continued from an immediately preceding calendar year in which the employee performed
at least 600 hours of service in the position or concurrent positions.
(C) A position with one employer
in which the employee is employed for the entire calendar year and fails to perform
at least 600 hours of service in that position or concurrent positions in the calendar
year is non-qualifying regardless of employer designation.
(e) “Service”
means a period in which an employee:
(A) Is in an employer/employee
relationship, as defined in OAR 459-010-0030; and
(B) Receives a payment of
“salary,” as defined in ORS 238.005 or similar payment from workers
compensation or disability.
(f) “Short segment”
means a period in the calendar year during which the employee is hired after the
first working day of the year, and separated from employment before the last working
day of the same calendar year.
(2) At the time an employee
is hired, an employer must designate the employee’s position as qualifying
or non-qualifying. An employer must designate a position as qualifying if the position
is one in which an employee would normally perform at least 600 hours of service
in a calendar year.
(3) Employer designation
of a position as qualifying or non-qualifying must be determined by PERS from information
communicated to PERS by the employer. An employer designation that is contrary to
the provisions of subsection (1)(d) of this rule in any calendar year will be reversed
for that calendar year.
(4) Eligibility. An employee
who was employed in a qualifying position before August 29, 2003 by an employer
participating in the PERS Chapter 238 Program was eligible to become a member of
that program if the employee:
(a) Began the six-month waiting
period described in OAR 459-010-0035 before August 29, 2003;
(b) Did not elect to participate
in an optional or alternative retirement plan as provided in ORS Chapters 243, 341,
or 353; and
(c) Was not otherwise ineligible
for membership.
(5) Membership. An employee
who meets the requirements of section (4) of this rule becomes a member of the PERS
Chapter 238 Program on the first day of the calendar month following the completion
of the six-month waiting period described in OAR 459-010-0035 provided that the
employee is employed on that date by the same employer that employed the employee
throughout the waiting period.
Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.005,
238.015, & 238A.025
Hist.: PERS 5-2005, f. &
cert. ef. 2-22-05; PERS 23-2005, f. 12-23-05, cert. ef. 1-1-06; PERS 15-2007, f.
& cert. ef. 11-23-07; PERS 13-2014, f. & cert. ef. 9-29-14
459-010-0010
Leave of Absence Without Pay
(1) For purposes of this rule, “major
fraction of a month” means a minimum of 11 business days in a calendar month.
(2) Employer/Employee Agreement.
An official leave of absence without pay for any purpose must have the following
in order to be considered bona fide:
(a) An agreement in writing;
(b) Accordance with the applicable
law, rules and regulations;
(c) The duration specifically
stated at the time of granting; and
(d) Certification to PERS
by the employer granting such leave.
(3) Creditable Service and
Retirement Credit.
(a) A leave of absence without
pay occurring on or after July 1, 1987, which constitutes the major fraction of
a month:
(A) May not be used to calculate
“years of membership” under ORS 238.300; and
(B) May not be used to determine
“creditable service” or “retirement credit” under ORS 238.005.
(b) A leave of absence without
pay occurring before July 1, 1987, which constitutes the major fraction of a month:
(A) Must be used to calculate
“years of membership” under ORS 238.300; and
(B) Must be used to determine
“creditable service” and “retirement credit” under ORS 238.005.
(c) A leave of absence without
pay occurring on or after January 1, 2004, which constitutes the major fraction
of a month may not be used to determine “retirement credit” under ORS
238A.140 for any period of employment after the date membership is established under
ORS 238A.100.
(4) Reporting Requirement.
Unless otherwise agreed upon by PERS, the employer shall report the following in
a format acceptable to PERS:
(a) Any period of leave of
absence without pay, which constitutes the major fraction of a month, for each member
at the time the leave begins. The reported period of leave of absence without pay
must include an end date.
(b) Any amendment or extension
to a previously reported period of leave of absence without pay.
(5) A PERS member on an official
leave of absence without pay is not considered terminated from service with a participating
employer.
(6) An employee on an official
leave of absence without pay on the date the employer begins to participate in PERS,
shall be considered to be an employee on such date for the purpose of determining
eligibility for participation in PERS.
(7) A layoff from employment
does not constitute a leave of absence without pay.
Stat. Auth.: ORS 238.650 & 238A.450
Stats. Implemented: ORS 238.300
& 238A.140
Hist.: PER 8, f. 12-15-55;
PERS 12-1998, f. & cert. ef. 12-17-98; PERS 12-2001, f. 12-14-01, cert. ef.
1-1-02; PERS 21-2005, f. & cert. ef. 11-1-05; PERS 15-2008, f. & cert. ef.
11-26-08; PERS 3-2010, f. & cert. ef. 5-28-10; PERS 13-2014, f. & cert.
ef. 9-29-14
459-010-0011
Authorized Paid Leave of Absence
(1) Definition of "remuneration in return for services to the public employer." For purposes of ORS 238.005, remuneration in return for services to the public employer means:
(a) The employee must be paid by the participating employer for their services;
(b) The employer and employee must lawfully agree, expressly or implicitly, that the payment is for services to the employer; and
(c) The payment must in fact be remuneration for services to the participating public employer.
(2) Paid Leave. For purposes of creditable service as defined in ORS 238.005, payments to employees during paid leave shall be considered salary, as defined under ORS 238.005, if:
(a) Prior to leave being taken, the employer and employee have lawfully agreed to the terms and conditions of paid leave either through an agreement or pursuant to the employment policies of the employer that are expressly or implicitly accepted by the employee; and
(b) The agreement or policy governing paid leave provides that such leave is:
(A) For a specified period, including a period that may be extended by the employer, which period may be either a specified time or determinable based on the character of the services to be performed;
(B) Subject to approval by the employer; and
(C) Subject to an express, reasonable expectation that the employee will return to the employee's regular duties.
(3) 600 Hour Requirement. For the purposes of ORS 238.005, a member is not "inactive" when:
(a) The member is absent from service while on authorized paid leave; and
(b) The member's employment position normally requires 600 or more hours of service to the public employer in a 12-month period.
(4) IRS Requirements. The proposed rule must be consistent with IRS requirements and the agreements specified in this rule are governed by ORS 238.618.
(5) Effective Date. The provisions of this rule shall be prospective and effective on January 1, 2002. Employers shall maintain a record that past employment practices and agreements have been changed to comply with the provisions of this rule. Past employment practices, with respect to paid leaves of absence occurring prior to the effective date of this rule, are recognized as complying with the then requirements, statutes and rules governing PERS.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.005, 238.015, 238.025 & 238.200

Hist.: PERS 9-2001, f. 12-14-01, cert. ef. 1-1-02; PERS 21-2005, f. & cert. ef. 11-1-05
459-010-0012
Membership of Community College Employees
(1) For purposes of establishing membership in the system, effective July 1, 1988, an academic employee of a community college who is employed .375 full-time equivalent (FTE) on a 12-month basis or .50 FTE on a 9-month basis is deemed to be employed 600 hours or more in a year. For an academic employee of a community college, a year shall be the 12-month period beginning July 1 and ending the following June 30.
(2) For an academic employee of a community college, an FTE shall be measured against an academic year beginning July 1 in a given year and ending June 30 of the year following.
(3) An academic employee of a community college is an instructor who teaches classes offered for college-approved credit or on a non-credit basis. Librarians, counselors, and aides in non-teaching positions, tutors, or other non-teaching faculty, and classified, professional or nonprofessional support staff are not academic employees for the purposes of ORS 238.074; but are subject to the membership requirements under ORS 238.015.
(4) Each community college shall determine who is an academic employee in its employ under this rule. In making that determination, a community college shall consider all disciplines (academic activity) collectively when an employee's assignment includes multiple disciplines.
(5) For persons concurrently employed in academic positions in two or more community colleges, the combined FTE shall be used in determining eligibility for membership. If the combined FTE is less than the criteria in section (1) of this rule, the combination of hours of service shall be considered in determining eligibility for membership pursuant to ORS 238.015.
(6) For academic employees concurrently employed in an academic and a non-academic position in one or more community colleges, the combination of academic and non-academic duties shall be considered in determining eligibility for membership pursuant to ORS 238.015. For the purposes of this section, a year shall be any consecutive 12-month period.
(7) Employment of retired members of the system in academic or non-academic positions is subject to the limitations in ORS 238.082.
Stat. Auth.: ORS 238.650

Stats. Implemented:

Hist.: PERS 3-1992, f. & cert. ef. 5-4-92; PERS 21-2005, f. & cert. ef. 11-1-05
459-010-0014
Creditable Service in PERS Chapter 238 Program
(1) For purposes of this rule:
(a) “Active member” has the same meaning as provided in ORS 238.005.
(b) “Creditable service” has the same meaning as provided in ORS 238.005.
(c) “Major fraction of a month” means a minimum of 50 hours in any calendar month in which an active member is being paid a salary by a participating public employer and for which benefits under ORS Chapter 238 are funded by employer contributions.
(2) Except as provided in OAR 459-010-0010(3), an active member accrues one month of creditable service for each month in which the member performs service for the major fraction of the month.
(3) An active member is presumed to have performed service for a major fraction of a month if:
(a) The member performs at least 600 hours of service in the calendar year and the member's employer(s) reports salary and hours for a pay period occurring within the calendar month;
(b) The member starts employment on or before the 15th day of the calendar month and the employment continues through the end of the month;
(c) The member starts employment on or before the first day of the calendar month and ends employment on or after the 16th day of the month; or
(d) The member starts employment on or before the first day of the calendar month and ends employment before the 16th day of the month, but is reemployed in a qualifying position before the end of the month.
(4) A member or employer may seek to rebut the determination of creditable service based on the presumptions in section (3) by providing to PERS records that establish that the member did or did not perform service for a major fraction of a month as defined in subsection (1)(c) of this rule.
(5) Except as provided in OAR 459-010-0010(3), an active member who is a school employee will accrue six months of creditable service if the member performs service for a major fraction of each month of a school year that falls between January 1 and June 30, and six months of creditable service if the member performs service for a major fraction of each month of a school year that falls between July 1 and December 31.
(6) A member may not accrue more than one month of creditable service for any calendar month and no more than one year of creditable service for any calendar year.
(7) The provisions of this rule are effective for service credit determinations made on or after January 1, 2008.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.005 & 238.300

Hist.: PERS 6-2005, f. & cert. ef. 2-22-05; PERS 24-2005, f. 12-23-05, cert. ef. 1-1-06; PERS 15-2007, f. & cert. ef. 11-23-07; PERS 1-2008(Temp), f. & cert. ef. 4-2-08 thru 9-26-08; PERS 9-2008, f. & cert. ef. 5-21-08; PERS 3-2010, f. & cert. ef. 5-28-10
459-010-0019
Retirement
Eligibility
(1) A member’s
most recent qualifying position at the time of separation from service with all
participating employers establishes the member’s classification for purposes
of normal and early service retirement eligibility and disability retirement allowance
calculations except:
(a) A
member employed in a qualifying position as a police officer or firefighter who
reaches earliest retirement age under ORS 238.280 retains retirement eligibility
as a police officer or firefighter. A member described in this subsection who subsequently
is employed in a qualifying position as other than a police officer or firefighter
retains retirement eligibility as a police officer or firefighter.
(b) A
member who separates from service in a qualifying position as a police officer or
firefighter before reaching earliest retirement age under ORS 238.280 retains classification
as a police officer or firefighter provided the member does not return to a qualifying
position as other than a police officer or firefighter before reaching earliest
retirement age under ORS 238.280.
(c) A
member employed in a qualifying position as other than a police officer or firefighter
who reaches earliest retirement age under ORS 238.280 retains retirement eligibility
as other than a police officer or firefighter.
(2) A
member who is employed by one employer in qualifying positions as a police officer
or firefighter and as other than a police officer or firefighter is a police officer
or firefighter for purposes of this rule.
(3) A
member who is concurrently employed by two or more employers in qualifying positions
as a police officer or firefighter and as other than a police officer or firefighter
is a police officer or firefighter for purposes of this rule.
Stat. Auth.:
ORS 238.650

Stats.
Implemented: ORS 238.280, 238.300, 238.320

Hist.:
PERS 4-2011, f. & cert. ef. 8-4-11
459-010-0025
Student Employee
(1) Under ORS 238.015(4), student employees, inmates of a state institution, and aliens on a training or educational visa are not eligible for membership in the system. A participating employer is responsible for determining whether an employee is ineligible for membership in the system because the employee is a student employee, an inmate of a state institution, or an alien on a training or educational visa.
(2) As used in this rule:
(a) The term "school" includes an accredited or certified public or private elementary school, high school, community college, or institution of higher education, or an Oregon education service district, or the Oregon State School for the Deaf or the Oregon State School for the Blind; but
(b) The term "school" does not include:
(A) Private technical, trade or correspondence schools that do not grant educational degrees; and
(B) Course(s) offered by a school that are not applied toward a degree.
(c) The terms "half-time enrolled" or "enrolled half time" mean that a person is enrolled at least 50% of a full-time enrolled status in a school, as defined in subsection (a) of this section, and as determined by the school in which enrolled.
(3) A participating employer may reasonably designate an employee as a "student employee" if the employee is a person:
(a) Who is enrolled at least half time in a school and whose employment is principally for the purpose of furthering the person's education; or
(b) Whose employment is principally related to the employee's status as a student, e.g. a work-study program.
(4) An employee may be a student employee under the following circumstances:
(a) The employer is a school and the employed person's principal relationship to the school is as at least a half-time enrolled student.
(b) The employer is not a school, but the person employed is enrolled half time in a school and the work performed for the employer is primarily for the purposes of furthering the person's course of study at the school, or is otherwise related to the person's education. For example:
(A) A student intern at the Legislative Assembly who will receive academic credit for the internship is a student employee.
(B) If an employer requires, for reasons legitimately related to the employment of the person, that an employee be at least a half-time enrolled student; the employee is a student employee.
(5) An employee who is also a student shall be eligible for membership in the system if the employee's work for the employer is the principal basis for the employment relationship and is not related to the employee's course of study at a school. For example:
(a) A full-time employee who attends classes outside of working hours for purposes unrelated to the work performed for the employer is not a student employee, except as provided in section (3) of this rule.
(b) A full-time employee who is granted administrative time off to attend class and the course is recommended or authorized by the employer to maintain or improve the employee's job performance is not a student employee.
(c) A full-time employee, or a part-time employee employed in a position which qualifies the employee for active membership in PERS who is taking a course or is enrolled less than half time in a school, is not a student employee, except as provided in section (3) of this rule.
(6) If an employee qualifies as a student employee under section (3) of this rule, the employee may be deemed a student employee during a break between semesters or quarters of study provided that the student employee has declared, or otherwise indicated, the intent to resume at least half-time enrolled status following the break, provided that the break does not exceed an academic quarter or semester, and the employer has a reasonable expectation that the employee shall resume at least a half time enrolled status following the break.
(7) For an employee whose employment relationship with the employer varies from time to time, from that as a student employee to not as a student employee, the majority employment relationship during a school year shall prevail in determining whether an employee is a student employee for that year.
(8) The employer's policy designating a position or an employment relationship as that of a student employee shall be in writing, and shall reflect the following:
(a) The designation is not primarily for the avoidance of PERS contributions; and
(b) The designation shall be in accordance with applicable laws and regulations pertaining to employment practices.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.015(4)

Hist.: PER 8, f. 12-15-55; PERS 8-1998, f. & cert. ef. 5-22-98; PERS 19-2005, f. 11-1-05, cert. ef. 1-1-06
459-010-0030
Determination of Employee Status
(1) The term "employee" shall have the same meaning as provided in ORS 238.005 and OAR 459-005-0001(12).
(2) Determination of whether an individual is an employee is made under common-law rules. Under common-law rules, every individual who performs labor or services subject to the direction and control of an employer, both as to what must be done and how it must be done, is an employee. It does not matter that the employer allows the employee discretion and freedom of action, so long as the employer has the legal right to control both the method and the result of the labor or services, resulting in an employee/employer relationship.
(3) If, under the common-law rules, there is an employee/employer relationship, it makes no difference how it is described. It is not controlling whether the employee is called an employee. It is not controlling how the payments are measured, how they are made, or what they are called. It is not controlling whether the individual is employed full time or part time. There is no distinction made between classes of employees. Superintendents, executives, managers, supervisors, and other supervisory personnel are all employees.
(4) In applying the common-law rules, the 20-factor test as described in Internal Revenue Service Ruling 87-41 shall be used in determining whether or not an individual is an employee. The degree of importance of each factor varies depending on the labor or services to be performed and the context in which the labor or services are performed. The 20 factors are:
(a) Instructions;
(b) Training;
(c) Integration;
(d) Services Rendered Personally;
(e) Hiring, Supervising, and Paying Assistants;
(f) Continuing Relationship;
(g) Set Hours of Work;
(h) Full Time Required;
(i) Doing Work on Employer's Premises;
(j) Order of Sequence Set;
(k) Oral or Written Reports;
(l) Payment by Hour, Week, Month;
(m) Payment of Business and/or Traveling Expenses;
(n) Furnishing of Tools and Materials;
(o) Significant Investment;
(p) Realization of Profit or Loss;
(q) Working for More than One Employer at a Time;
(r) Making Service Available to General Public;
(s) Right to Discharge; and
(t) Right to Terminate.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.005(7)

Hist.: PER 8, f. 12-15-55; PERS 7-1992, f. & cert. ef. 11-9-92; PERS 12-1998, f. & cert. ef. 12-17-98; PERS 21-2005, f. & cert. ef. 11-1-05
459-010-0032
Determination of Independent Contractor Status
(1) An individual who qualifies as an employee under OAR 459-010-0030 is not an independent contractor. Unless it is clearly established, under this rule, that a person is an independent contractor, that person shall be deemed to be an employee.
(2) An individual or business entity is an independent contractor if the employing entity has if the employing entity has the right to control or direct only the result of the labor or service and not the means and methods accomplishing the labor or services. The terms of the contract and the actual arrangement under which labor or services are performed will determine whether an individual or a business entity is subject to direction and control. When the elements of direction and control are present in determining the means and methods of performing labor or service as provided in OAR 459-010-0030, any disclaimers to the contrary are not binding for the purpose of determining an employee/employer relationship by the system.
(3) In determining whether or not an individual is an independent contractor, the following factors shall be considered. The degree of importance of each factor varies depending on the labor or service to be performed and the contest in which the labor or service are performed:
(a) Labor or service are performed only pursuant to written contracts;
(b) The individual or business entity assumes financial responsibility for defective workmanship or for service not provided as evidenced by the ownership of performance bonds, warranties, errors and omission insurance, or liability insurance relating to the labor or services to be provided;
(c) The individual or business entity providing labor or service furnishes the tools, equipment, and supplies necessary for performance of the contracted labor or services; or has a significant investment in the facilities used in performing the labor or services;
(d) Payment for labor or service is made upon completion of the performance of specific portions of the project or is made on the basis of an annual or periodic retainer. Normal expenses incurred as part of providing labor or service are included in the stipulated payment and are not reimbursed by the employing entity as a routine cost of doing business;
(e) The individual or business entity providing labor or services has the authority to hire and fire employees to perform the labor or services. The individual or business entity is not required to perform the labor or services personally; but may subcontract part or all of the labor or service to be performed to another party;
(f) Labor or services are performed for two or more different persons and/or business entities concurrently within a period of one year;
(g) The individual or business entity providing labor or services is responsible for obtaining all assumed business registrations, professional occupation licenses, or certificates required by state or local government ordinances for the individual or business entity to conduct business;
(h) The individual or business entity actively advertises the availability of the labor or services and represents to the public that the labor and services are to be provided by an independently established business. The following are evidence of "actively advertising":
(A) Commercial advertising or business cards as is customary in operating similar businesses are purchased for the business, or the individual or business entity has a trade association membership;
(B) Telephone listing and service are used for the business that is separate from the personal residence listing and service used by an individual who performs the labor or services.
(i) Federal and state income tax returns in the name of the business or a business Schedule C or farm Schedule F as part of the person income tax return were filed for the previous year if the individual or business entity performed labor or services as an independent contractor in the previous years.
(4) An individual represented as a Professional Corporation or a sole proprietorship shall qualify as an independent contractor providing the criteria of this rule are met and the element of direction and control in OAR 459-010-0030 are not present.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.005

Hist.: PERS 7-1992, f. & cert. ef. 11-9-92; PERS 12-1998, f. & cert. ef. 12-17-98
459-010-0035
Six-Month Waiting Period
(1) The six-month waiting period required
for establishing membership under ORS 238.015 is six full calendar months of service
with the same employer. The service must be in a “qualifying position,”
as defined in OAR 459-010-0003. The six full calendar months of service may not
be interrupted by more than 30 consecutive working days.
(2) The waiting period begins
on:
(a) The date the employee
is hired, and includes the month of hire as a full calendar month, if the date of
hire is the first business day of the month;
(b) The first day of the
month following the date of hire; or
(c) The first day of the
month following the end date of an interruption of service of more than 30 consecutive
working days.
(3) In the event an employee
is on an official leave of absence under OAR 459-010-0010, the period of absence
shall not constitute an interruption of the waiting period under section (1) of
this rule. The waiting period shall be extended by the length of the leave of absence.
(4) Absence from service
by an educational employee during periods that the employing educational institution
is not in session does not constitute an interruption of the waiting period under
section (1) of this rule. The waiting period shall be extended by the length of
the period the educational institution is not in session.
Stat. Auth.: ORS 238.650
Stats. Implemented: ORS 238.015
Hist.: PER 8, f. 12-15-55;
PERS 12-1998, f. & cert. ef. 12-17-98; PERS 10-2005, f. & cert. ef. 3-31-05;
PERS 15-2007, f. & cert. ef. 11-23-07; PERS 13-2014, f. & cert. ef. 9-29-14
459-010-0045
Substitution of Annuity
(1) A public employer participating in the Public Employees Retirement System may petition the Public Employees Retirement Board to substitute an annuity which an employee has already commenced to purchase as provided by ORS 238.015(7) for all benefits otherwise provided for in ORS Chapter 238.
(2) The benefit adequacy of the substitute annuity shall be determined by the employer. In determining the adequacy of the benefits, the employer shall assure that the substitute annuity provides no less than 80 percent of the total actuarial present value of what the system would provide, under a service or disability retirement or a death benefit, and vesting for the same period of employment.
(3) A petition for substitution of an annuity by a public employer shall include the following:
(a) A copy of the proposed contract between the employee and the employer for the substitution of an annuity;
(b) A complete description of the annuity to be substituted.
(4) PERS staff shall have PERS' consulting actuary review the public employer's petition to assure:
(a) The documentation that the benefit adequacy meets the standard in section (2) of this rule.
(b) The proposed contract between the employee and the employer is in compliance with state and federal laws and regulations.
(c) The public employer shall bear the costs of the actuarial review.
(5) The Board may require the public employer to provide additional information necessary to confirm the employer's determination of the actuarial present value of benefits to be provided by the substituted annuity.
(6) The retirement annuity provided by the Federal Retirement System is considered as an acceptable annuity for an employee participating in that plan and desiring to be exempted from contributing to PERS, provided the federal annuity is adequate in amount.
(7) In all cases, the agreement for substitution of an annuity must be executed by the employee, the employer, and the (Board) system.
(8) In the event an employee elects to no longer substitute an annuity, the employee, if otherwise eligible, shall become an active member in the system effective with the first of the calendar month following receipt of the employee's written election.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.015(7)

Hist.: PER 8, f. 12-15-55; PERS 12-1998, f. & cert. ef. 12-17-98; PERS 19-2005, f. 11-1-05, cert. ef. 1-1-06
459-010-0055
Withdrawal of Contributions
(1) Definitions.
(a) A "controlled group" is a group of employers treated as a single employer for purposes of maintaining qualified status under federal law.
(b) "Effective date of withdrawal" has the same meaning as given the term in OAR 459-005-0001(8).
(2) An inactive member may withdraw the member account balance under ORS 238.265 if:
(a) The member has separated from employment with all participating employers and all employers in a controlled group with a participating employer;
(b) PERS receives the member's request for withdrawal of the member account before the member reaches earliest service retirement age;
(c) The member has been absent from service with all participating employers and all employers in a controlled group with a participating employer for at least one full calendar month following the month of separation; and
(d) The member complies with the requirements of section 1, chapter 52, Oregon Laws 2007.
(3) Under no circumstance may a member withdraw less than the entire balance in the member account.
(4) A member who withdrew the member account and received an additional 50 percent of the member account pursuant to section 2, chapter 276, Oregon Laws 2003 may not subsequently restore the creditable service forfeited by the withdrawal under ORS 238.105 or 238.115.
(5) The member may revoke the request for withdrawal of the member account if PERS receives a written request to revoke before the earlier of:
(a) The date of distribution; or
(b) The date PERS receives a valid court order requiring PERS to pay the distribution to someone other than the withdrawing member.
(6) If a member withdraws the member account under this rule, membership in the PERS Chapter 238 Program shall be terminated as of the effective date of withdrawal. Membership rights accrued under ORS chapter 238 before the effective date of withdrawal, including any service rights attributable to employment before the effective date of withdrawal, are forfeited.
(7) If a former member who has withdrawn the member account under this rule returns to employment with any participating employer or an employer in a controlled group with a participating employer before the first day of the second calendar month following the month of the separation described in subsection (2)(a) of this rule, the withdrawal is cancelled and membership is restored. The member must repay to PERS in a single payment the total amount of the payments attributable to the withdrawal within 30 days following the effective date of employment. Upon receipt by PERS of repayment under this section, service rights forfeited under section (6) of this rule are restored as of the effective date of withdrawal. The repayment amount will be credited pro rata to the accounts from which the withdrawal amount was derived.
(8) If the member fails to repay as provided in section (7) of this rule, PERS shall take all reasonable steps to recover the repayment amount due, including any interest, costs, or penalties assessed by PERS, under the provisions of ORS 238.715 and OAR 459-005-0610. Upon receipt by PERS of repayment under this section, service rights forfeited under section (6) of this rule are restored effective the first day of the month following the date of repayment. The repayment amount will be credited pro rata to the accounts from which the withdrawal amount was derived effective the first day of the month following the date of repayment.
(9) The effective date of this rule is January 1, 2008.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.265, OL 2003 Ch. 276 & OL 2007 Ch. 52

Hist.: PER 8, f. 12-15-55; PER 4-1979(Temp), f. & ef. 11-21-79; PER 7-1979(Temp), f. & ef. 12-11-79; PER 3-1980, f. & ef. 5-8-80; PER 2-1981, f. & ef. 1-15-81; PERS 5-1999, f. & cert. ef. 11-15-99; PERS 17-2004, f. 6-15-04 cert. ef. 7-1-04; PERS 16-2007, f. & cert. ef. 11-23-07
459-010-0078
Volunteer Service
(1) "Volunteer Service" means service as a volunteer as defined in OAR 459-005-0001.
(2) Volunteer service shall not be considered:
(a) For determining eligibility for membership in PERS.
(b) For determining active membership in PERS.
(c) For determining limitations on reemployment of retired members of PERS by a participating employer.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.005 - ORS 238.715

Hist.: PERS 12-1998, f. & cert. ef. 12-17-98; PERS 12-2003, f. & cert. ef. 11-14-03
459-010-0115
Term of Appointive Office
The fixed term of an appointive office is the term fixed by statute or municipal charter.
Stat. Auth.: ORS 237

Stats. Implemented:

Hist.: PER 8, f. 12-15-55
459-010-0125
Eligibility of Volunteer Firefighters
Upon proper application by the employer, volunteer firefighters as a unit are eligible for membership even though all other employees of that employer are excluded.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.015

Hist.: PER 8, f. 12-15-55; PERS 12-1998, f. & cert. ef. 12-17-98
459-010-0175
Computation of Prior Service Credit for Accumulated Seasonal Employment
In computing prior service credit for accumulated seasonal employment, the total days of seasonal employment worked by the employee, as certified by the employer, shall be divided by 260 to obtain the number of years of prior service credit. A remainder of more than 130 days shall constitute a major fraction of a year. An employee who in such seasonal employment worked more than 260 days in any one fiscal year shall be credited with only one year of prior service for that year, and the extra days shall not be added to other seasonal employment.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.005, 2005 OL, Ch. 808, Sec. (12), (13), (14) & ORS 238.225

Hist.: PER 8, f. 12-15-55; PERS 12-1998, f. & cert. 12-17-98; PERS 20-2005, f. 11-1-05, cert. ef. 11-4-05
459-010-0180
Membership of Elected Officer or Fixed Term Officer
An elected officer or an officer appointed for a fixed term who establishes membership in PERS, may cancel that membership at the end of a term of office by giving written notice to PERS. Such notice shall be filed with PERS within 30 days of the end of the term of office. In the absence of such notice, if an officer contributes to PERS for more than one pay period in a subsequent term of office, the officer shall be deemed to have elected to continue participation for the duration of such term of office.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.015

Hist.: PER 8, f. 12-15-55; PERS 12-1998, f. & cert. ef. 12-17-98
459-010-0300
Involuntary Termination of Membership
(1) Under ORS 238.618, the Board may terminate a member’s membership when the member’s participation in the system would cause the system or the Public Employees Retirement Fund to lose its tax qualified status.
(2) The Director is delegated the authority provided under ORS 238.618 to terminate a member’s membership in the Public Employees Retirement System under the following circumstances:
(a) The member retired and elected the total lump sum option under ORS 238.305(3);
(b) The member exceeded the return to work limitations in ORS 238.078(2) and OAR 459-017-0060(5) in the six month period following the member’s effective retirement date; and
(c) The member refuses to re-retire in compliance with those return to work limitations.
Stat. Auth.: ORS 238.650

Stats. Implemented: ORS 238.618

Hist.: PERS 6-2009, f. & cert. ef. 6-3-09


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