2017 ORS 238.364¹
Calculation of increased benefit payable under ORS 238.362

(1)(a) Upon retirement of an employee who is a member of the Public Employees Retirement System and computation of that member’s service retirement allowance under ORS 238.300 (Service retirement allowance), 238.305 (Optional service retirement allowance calculations) or 238.425 (Benefits payable to vested inactive member), or computation of any disability retirement allowance under ORS 238.320 (Disability retirement allowance), 238.325 (Optional disability retirement allowance calculations), 238.330 (Minimum disability retirement allowance), 238.345 (Optional service-connected disability retirement allowance for police officers and firefighters) or 238.425 (Benefits payable to vested inactive member), the Public Employees Retirement Board shall add to the amount of the allowance, including amounts attributable to prior service credit and the amount of any refund of accumulated employee contributions, the greater of the percentage increase calculated under ORS 238.366 (Retirement allowance increase based on years of service) or a percentage increase calculated under subsection (4) of this section. No benefit shall be paid to a member or beneficiary under ORS 238.366 (Retirement allowance increase based on years of service) if the benefit payable to the member or beneficiary under this section is larger than the benefit payable under ORS 238.366 (Retirement allowance increase based on years of service).

(b) The percentage increase provided for in this section shall be adjusted by the board to reflect increases or decreases in a member’s retirement allowance that are attributable to the member’s participation in the Variable Annuity Account established by ORS 238.260 (Variable Annuity Account), that are attributable to a change in the member’s beneficiary or payment option under ORS 238.305 (Optional service retirement allowance calculations) or 238.325 (Optional disability retirement allowance calculations), or that are attributable to corrections to the member’s retirement allowance calculation.

(c) The percentage increase provided for in this section shall be applied to any lump sum payment made to a member or a beneficiary of a member on or after January 1, 1991, that is attributable to a retroactive correction or adjustment of the amount payable to the member or beneficiary as a retirement allowance or that is attributable to a retroactive correction or adjustment to any other benefit that entitles a member or beneficiary to an increased benefit under this section. The percentage increase payable under this paragraph applies only to the principal amounts included in the lump sum payment as a retroactive correction or adjustment and does not apply to any interest on the retroactive correction or adjustment paid as part of the lump sum payment.

(2) The amount of any death benefit under ORS 238.390 (Death benefit), 238.395 (Additional death benefit), 238.400 (Payment upon death of retired member who dies before making election of retirement benefits) or 238.405 (Death benefit payable to survivors of certain police officers or firefighters), including the amount of any monthly payments, shall be increased by the greater of the percentage provided for in ORS 238.366 (Retirement allowance increase based on years of service) or the percentage calculated under subsection (4) of this section.

(3)(a) A member of the system who elects to receive a lump sum in lieu of a retirement allowance or other benefit under ORS 238.315 (Lump sum payment in lieu of small allowance) shall receive an increase based on the greater of the percentage provided for in ORS 238.366 (Retirement allowance increase based on years of service) or the percentage calculated under subsection (4) of this section.

(b) A member of the system who withdraws the amount credited to the member account, if any, of the member in the fund under the provisions of ORS 238.265 (Withdrawal of member account), or whose member account is returned to the employee after the membership of the employee is terminated under the provisions of ORS 238.095 (Termination of membership), shall receive an additional amount calculated by multiplying the amount of the member account of the member by the greater of the percentage provided for in ORS 238.366 (Retirement allowance increase based on years of service) or the percentage calculated under subsection (4) of this section. If a member thereafter elects to obtain restoration of creditable service by repaying the amount of the withdrawn member account pursuant to the provisions of ORS 238.105 (Restoration of credit forfeited by reason of termination of membership), the member must also repay all amounts paid under this section, together with interest from the date of withdrawal at the same rate as applied to the withdrawn member account under ORS 238.105 (Restoration of credit forfeited by reason of termination of membership). If a member repays only part of the withdrawn member account pursuant to the provisions of ORS 238.115 (Alternate method of restoring credit forfeited by reason of termination of membership), the member must repay that part of the amount paid under this section that is proportionate to the portion of the withdrawn member account that is repaid under ORS 238.115 (Alternate method of restoring credit forfeited by reason of termination of membership), together with interest from the date of withdrawal at the same rate as applied to the withdrawn member account under ORS 238.115 (Alternate method of restoring credit forfeited by reason of termination of membership). All amounts paid to the member that are subsequently repaid under ORS 238.105 (Restoration of credit forfeited by reason of termination of membership) or 238.115 (Alternate method of restoring credit forfeited by reason of termination of membership) shall be deposited by the board to the employer reserve for pension accounts in the fund.

(4)(a) The Public Employees Retirement Board shall calculate a multiplier for the purposes of this section equal to the percentage produced by the following formula:

1

________

.91

(b) Upon the retirement or death of a member of the system, the board shall determine the fraction of the member’s retirement allowance or death benefit, including any refund or lump sum payment, that is attributable to service rendered by the member before October 1, 1991. The board shall then calculate a percentage that is equal to that fraction multiplied by the multiplier determined by the board under paragraph (a) of this subsection. The percentage so calculated shall be used to determine the amount of the increase in benefits provided to a member, if any, under this section.

(5) For the purpose of determining that portion of a retirement allowance or death benefit attributable to service rendered before October 1, 1991, the board shall divide the number of years of creditable service performed before October 1, 1991, by the total number of years of creditable service during which the pension income was earned. For the purposes of this subsection:

(a) The number of years of creditable service does not include any period of employment for which a benefit is paid for prior service credit.

(b) Except as provided in subsection (7) of this section, the number of years of creditable service includes all retirement credit of the member, and any retirement credit of a member that is attributable to periods of service, employment or other activity performed before October 1, 1991, shall be considered creditable service performed before October 1, 1991.

(6) The increased benefits provided for in this section shall be funded by employer contributions.

(7) The increased benefits provided by this section apply only to members who establish membership in the Public Employees Retirement System before July 14, 1995, and whose effective date of retirement or date of death is on or after January 1, 1991. The increased benefits provided by this section do not apply to any creditable service or prior service credit acquired by a member under the terms of a contract of integration entered into pursuant to ORS 238.035 (Membership of part but not all employees of a public employer), 238.680 (Integration of other retirement systems) or 238.690 (Integration of retirement plan of mass transit district) on or after October 1, 1991.

(8) If a member is entitled to receive an increased benefit under the provisions of this section, and any portion of the member’s retirement allowance or other benefit payable under the system is payable to an alternate payee under the provisions of ORS 238.465 (Benefits payable to others under certain judgments), the increased benefits payable under this section shall be divided between the member and the alternate payee in proportion to the share of the total benefit received by each person. If an alternate payee elects to begin receiving benefits under ORS 238.465 (Benefits payable to others under certain judgments) (1) before the member’s effective date of retirement, the alternate payee may not begin receiving the increased benefit provided for in this section until benefits are first paid from the system on behalf of the member.

(9) A person establishes membership in the system before July 14, 1995, for the purposes of subsection (7) of this section if:

(a) The person is a member of the system, or a judge member of the system, on July 14, 1995;

(b) The person was a member of the system before July 14, 1995, ceased to be a member of the system under the provisions of ORS 238.095 (Termination of membership), 238.265 (Withdrawal of member account) or 238.545 (Withdrawal of member account) before July 14, 1995, but restores part or all of the forfeited creditable service from before July 14, 1995, under the provisions of ORS 238.105 (Restoration of credit forfeited by reason of termination of membership) or 238.115 (Alternate method of restoring credit forfeited by reason of termination of membership) after July 14, 1995; or

(c) The person performed any period of service for a participating public employer before July 14, 1995, that is credited to the six-month period of employment required of an employee under ORS 238.015 (Membership generally) before an employee may become a member of the system. [Formerly 238.380]

(formerly 238.380)

Notes of Decisions

Increase in state employee retire­ment benefits attributable to service before September 29, 1991, and linked to tax liability, was discriminatory tax rebate that re­quired rebate of taxes paid by federal retirees. Vogl v. Dept. of Revenue, 327 Or 193, 960 P2d 373 (1998)

Where peti­tioner, former state employee, is eligible for addi­tional PERS benefit under this sec­tion, PERS calcula­tion of addi­tional benefit requires multiplying eligible benefit by 9.89 percent to offset state income tax imposed on eligible benefit. Sundermier v. PERS, 269 Or App 586, 344 P3d 1142 (2015), Sup Ct review denied

Under this sec­tion, income tax offset is not term of Public Employees Retire­ment System contract and amend­ments that eliminated tax offset do not impair contract for purposes of rights under Article I, sec­tion 21, Oregon Constitu­tion. Moro v. State of Oregon, 357 Or 167, 351 P3d 1 (2015)

1 Legislative Counsel Committee, CHAPTER 238—Public Employees Retirement System, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors238.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 238, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano238.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.