Eugene Water and Electric Board v. PERB

“No person may become a member of the system unless he is in the service of a public employer and has completed six months’ service uninterrupted by a total of more than 30 working days during the six months’ period.” former ORS 237.011(emphasis added).

Petitioner, Eugene Water and Electric Board, (EWEB) sought review of a final order of the Public Employees Retirement Board (the Board) that determined Respondent, Wigle, was eligible for member in the Public Employee Retirement System (PERS). EWEB contended that the Board erroneously construed former ORS 237.011, renumbered as ORS 238.015(1), to allow employees paid through third-party employment agencies to be members of PERS. On appeal, EWEB argued Wigle was not an eligible worker because he was not an employee that received a salary as defined in former ORS 237.003(8), renumbered as ORS 238.005(11)(a). In response, Respondents argued that nothing in the in the PERS statutes require a salary be paid “directly” out of public funds. “No person may become a member of the system unless he is in the service of a public employer and has completed six months’ service uninterrupted by a total of more than 30 working days during the six months’ period.” former ORS 237.011(emphasis added). The Court of Appeals determined “‘in the service of a public employer’ to mean ‘in the employment of a public employer’” and “salary” under former ORS 237.003(8) to “reflect the reciprocal nature of the employer/employee relationship.” The Court held that the Board did not err when it determined Wigle, as a public employee paid through an intermediary, to be eligible for PERS because “Wigle was ultimately paid out of EWEB’s funds in return for the services that he provided as an employee to EWEB.” Affirmed.