Back in September I asked a simple question If Nelson can opt-out of pension in November, what will Moorlach do?Â Since I asked the question in a blog post rather than in a direct inquiry to Supervisor Moorlach, I didn’t really expect an answer. But with his inauguration day coming up on Tuesday, the relevance of the question has surfaced again.
From my September 2, 2010 post:
OCERS General Counsel and Assistant CEO Julie Wyne confirmed that OCERS views November as a clock reset. That’s a new elective office, so he [Nelson] has the opportunity to opt out of OCERs again,” Wyne said. “Each new election to the office is a new period of time that you have to opt in or out of OCERS.”
For years Moorlach has been hammering on and on about how if he had the choice, he would not be in the County pension plan. He has claimed that he tried, once he had decided he was against public employee defined benefit pension plans, and was told that once he was in he was in for good.
The statement by Assistant CEO Julie Wyne at OCERS that his new term resets the option clock opens the door for Supervisor Moorlach to opt-out of the pension plan he has participated in since 1995.
Below are the questions and responses I got from Robert Kinsler, Communications Division, Orange County Employees Retirement System in the fall of 2010 regarding the options faced by elected county officials related to pension plan participation.
1) It is my understanding that a County of Orange elected official has the option to choose whether or not to participate in the County of Orange pension plan within the first 30 days in office.
Response: You are correct that an elected official has the option to choose whether to participate in OCERS, but it is not required that the election be made within 30 days of entering office. There is no time frame on the election. See the language of the law pasted below.
Section 31553 of the Government Code:
Elective officers become members of the retirement association on the first day of the calendar month following the filing of a declaration with the board to become a member, provided, however, that any such elective officer may, within 60 days after the expiration of the officerâ€™s term of office or within 60 days after the officer ceases to hold the office, rescind the declaration and withdraw from the retirement association. In such cases, all contributions paid by the member shall be refunded in the same manner as applicable to members terminating service.
2) This question is specifically related to an elected official changing offices from one elected position to another. If an elected official selects to enter the County of Orange plan, is that option irrevocable for the period they continuously hold any county elected office, or can the withdraw when elected to a new office?
Response: While the elected official is in the office they were in when they elected to participate in OCERS, the option is irrevocable until they leave office. They have the option to withdraw when they leave office. If they are elected to a new elected office or reelected to the original elected office, they have a new option to participate in OCERS.
3) The closest example I have to this is Supervisor John Moorlach who entered the County plan when he was appointed as County Treasurer/Tax Collector. When he was elected to the different office of County Supervisor in 2006, would he have been able to opt out of the County plan at the time of the transition from one elected office (Treasurer/Tax Collector) to another (County Supervisor).
Response: Yes, in this example, since he was elected to a different elected office, he would have ceased his term in the Treasurer/Tax Collector position and had the option to rescind his declaration to be a member of OCERS and withdraw his contributions. He would also have had the option to file a declaration to become a member of OCERS for the Supervisor elected office.
So as I understand it state law allows elected officials the chance to opt out of the pension system within 60 days of leaving office. Further, they can choose whether or not they want to participate in the plan at the beginning of each term in office.
Supervisor Moorlach has claimed “When I was appointed to the position of Treasurer-Tax Collector, I opted out of the County’s pension plan.” He told the Daily Pilot “I asked, I researched it, and I got the door shut in my face.”
Supervisor John Moorlach finally has the ability to put his pension where his mouth is. He can opt out of his participation in the defined-benefit plan for the last four years (his first term as Supervisor), and choose not to participate for the next four years of his term as Supervisor. That is afterall, exactly what he planned on doing in the first place some 16 years ago. So as I asked back in September…
John Moorlach will you opt-out of the county defined-benefit pension plan once you are sworn in for your new term on the Board of Supervisors?