Plain Dealer on disclosure by pension funds

From John Curry, August 28, 2010

http://www.cleveland.com/opinion/index.ssf/2010/08/ohio_public_employee_pension_p.html
Ohio public employee pension plans hide behind wordplay: editorial

Cleveland Plain Dealer, August 28, 2010
The Plain Dealer Editorial Board

The state's public pension systems, in rejecting an Open Records Act request by an Ohio newspaper coalition that includes The Plain Dealer, sound like Wonderland's Humpty Dumpty. Humpty defined words, he told Alice, to suit himself, no matter what the dictionary says, because the issue isn't a word's meaning, but "which [person] is to be master."

And "master" is a role the pension funds like -- with taxpayers cast as bit players, told first to pay up, then to shut up.

The pension funds base their stonewalling on legal advice from Ohio Attorney General Richard Cordray's office. Cordray refused on Tuesday to reveal that advice, citing attorney-client privilege. By law, Cordray is the funds' lawyer. And a lawyer's client is entitled to confidentiality. That puts Cordray between a rock and a hard place. The funds could, of course, reveal his advice if they'd waive confidentiality. Note to taxpayers: Don't hold your breath. The newspapers don't want and aren't requesting information to identify, personally, any of the funds' 400,000 beneficiaries. The papers instead want to analyze pension data to measure the cost to taxpayers of "double dipping" and to see if some retirees gamed the systems to maximize retirement benefits. That's key information for Ohioans.

Two funds -- Teachers Retirement, and Police and Fire -- want bigger contributions from "employers" (taxpayers). But the failure of any of the five funds would become a potential liability for Joe and Jill taxpayer, so all of the funds' practices and underlying actuarial assumptions are relevant.

Yet, in Humpty fashion, an Ohio Public Employees Retirement System letter to state senators suggests how a defensive bureaucracy can knead English like Silly Putty.

PERS cited an Ohio law, but not the law's wording, to justify secrecy. The law's wording forbids disclosure, unless a public employee or retiree agrees, of the "record of contributions" by an individual, an "individual's statement of previous service" and the "benefit paid to the individual." But if the records the newspapers want don't identify any individual, then -- except in the Wonderland that is Columbus -- those data clearly may be released.

PERS also cited an Ohio Administrative Code section that purports to forbid disclosure of "any part of an individual's personal [PERS] record." But the Administrative Code is not exactly the same as a law. The Administrative Code, according to the Legislative Service Commission, is a set of "rules . . . adopted by an . . . agency." That is, the ban on revealing "any part of" a record is a rule PERS itself wrote and, presumably, could modify. Don't wait for that, either.

If administrative rules thwart the intent of the law, then the General Assembly should step in forthwith to defend the public weal. Unfortunately, that's about the most unlikely of all. Unless, that is, Ohio voters let their elected representatives know that sunlight must be cast on data these funds seem so determined to keep from the very folks who've long paid the largest share to keep the funds afloat.