Petrillo v. PERB

Under ORS 239.715(2), "Any person who receives a payment from the Public Employees Retirement Fund and who is not entitled to receive that payment, including a member of the system who receives an overpayment, holds the improperly made payment in trust subject to the board’s recovery of that payment under this section or by a civil action or other proceeding.”

On appeal, Petitioner, Petrillo, sought review of a final order of the Public Employees Retirement Board (PERB) that allowed the Public Employment Retirement System (PERS) to recover an overpayment of benefits paid to him as beneficiary to his late wife’s account. On appeal, Petitioner argued that a 2004 settlement agreement entered into by both parties as a result of prior litigation barred PERS from recovering the overpayment (petitioner was a party to the Strunk v. PERB, 338 Or. 145 (2005) proceedings). Defendant further contended that the settlement agreement assigned exclusive jurisdiction and venue to this issue to the Marion County Circuit Court. Under ORS 239.715(2), any person who receives payments from the PERS fund who is not entitled to receive that payment, holds that improper payment in trust subject to the boards recovery of the payment. The Court of Appeals concluded that the text of the 2004 settlement agreement did not address the 1999 overpayment, and thus did not bar recovery for the over payment by PERS. The Court further found that the recovery of the 1999 overpayment by PERS did not arise out of the interpretation or implementation of the settlement agreement. Therefore, it was not subject to the venue and jurisdiction assignment prescribed in the settlement agreement. Affirmed.