Berkeley Municipal Code Ch. 4.28 Police and Fire Employees Pension

*For Fire Department, see Ch. 2.65 of this code; for Police Department, see Ch. 2.64 of this code.

Pension provisions for other employees are provided for by Ord. 2480-NS, which authorizes participation in state of California Public Employees Retirement System.

For the purpose of this chapter certain words, terms and phrases shall bc defined as follows:

A. "Aggregate service" means the total length of time that any person has been a duly appointed member of the Police and Fire Departments, including leave of absence with or without pay, and without regard to the continuity of such employment; and such aggregate service shall include any period of time during which a member shall receive benefits under Section 4.28.090, but shall not include any period of time during which a member shall receive benefits under other provisions of this chapter, and shall not include any period of time during which a member does not contribute to the fund except during such period as they may be receiving benefits under Section 4.28.090 hereof and except as provided in Section 4.28.310 hereof.

B. Whereas the word "board" has heretofore meant the Police and Fire Employees Pension Board, it shall henceforth mean the safety members pension board, and whenever the word "board" appears it shall hereinafter refer to the Safety Members Pension Board.

C. Whereas the word "fund" has heretofore meant the Police and Fire Employees Pension Fund, it shall henceforth mean the safety members pension fund, and whenever the word "fund" appears in Ordinance 3558-NS, as codified herein, it shall hereinafter refer to the safety members pension fund.

D. "Member," or "member of the Police or Fire Department," means any person regularly appointed to service in the Police or Fire Department of the City between July 1, 1957, and March 1, 1973, who has authorized and made the contributions provided for in Section 4.28.280, and who, in an election held for that purpose, elects not to transfer to the California Public Employees Retirement System. In the Police Department the term shall not include community service assistant, reserve police officer, police trainee, police aide, or other civilian employees; in the Fire Department the term shall not include clerks, stenographers, typists or other civilian or temporary employees.

E. "Pensioner" means any person who shall be receiving a pension under the terms and provisions of this chapter.

F. "The average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement" means one thirty-sixth of the aggregate salary to which such member was entitled under the salary ordinances of the City for the three-year period immediately preceding the date of retirement, without any deductions for leaves of absence without pay or credits for overtime. (Ord. 4847-NS § 3 (part), 1976; Ord. 4623-NS § 2, 1973; Ord. 4446-NS (part), 1969; Ord. 3913-NS § 1, 1962; Ord. 3558-NS § 1, 1957)

There is created and established a fund, to be known as the "safety members pension fund," which shall be established for the members of the Police Department of the City who were members of the police employees pension fund, the members of the Fire Department who were members of the fire pension fund and the members of the Police and Fire Departments who were members of the police and fire employees pension fund, which fund shall be established, maintained and administered as herein provided.

The fund shall be kept inviolate, and no portion thereof shall be used for any purpose other than those specified in this chapter or those portions of Ordinances 2188-NS, 3558-NS and 2250-NS still in effect. (Ord. 4847-NS § 3 (part), 1976; Ord. 3558-NS § 1, 1957)

There is created a board which is to be known as the Safety Members Pension Board. The board shall consist of five individuals. The City Manager shall appoint two employees. The remaining members of the board shall be the Police Chief, Fire Chief and Finance Director and/or their respective designees. A majority of the members of the board shall constitute a quorum. No action may be taken by the board except by a majority vote of the entire membership thereof. (Ord. 6533-NS § 3, 2000; Ord. 4847-NS § 3 (part), 1976; Ord. 4488-NS (part), 1970; Ord. 3558-NS § 3, 1957)

The board shall, in addition to other powers and duties herein granted, have the power and duty:

A. To take charge of, to manage and to administer the fund and to order payments therefrom in pursuance of this chapter;

B. To provide for the payment from the fund of all necessary expense for its administration, provided that no compensation, direct or indirect, shall be paid to or received by any member of the board for any duty required or performed under this chapter;

C. To enter into agreements with firms providing investment counseling and management services for management of the investment of reserves in the pension fund or advice pertaining thereto;

D. To compel witnesses to attend and testify before the board upon all matters connected with the operation of this chapter in the same manner as is or may be provided by law for the taking of testimony before notaries public, and the chairperson or any member of the board may administer oaths to such witnesses;

E. To make all needful rules and regulations for the guidance of the board in conformity with the provisions of this chapter;

F. To keep a record of all its proceedings, which shall be a public record;

G. To grant or deny all applications for pensions or benefits and to make findings of fact in regard thereto; such decisions and findings shall be final. (Ord. 4847-NS § 3 (part), 1976; Ord. 4141-NS (part), 1966; Ord. 3558-NS § 4, 1957)

The board shall hold meetings upon the call of the chairperson, or the call of the majority of the members of the board in the absence of the chairperson as the affairs of the board may require. (Ord. 5890-NS § 1, 1988; Ord. 3558-NS § 5, 1957)

The board shall render an annual report to the City Council on or before the first day of December of each year showing the receipts and disbursements from the fund during the previous fiscal year together with the names of the pensioners and the amounts paid them and the balance remaining in the fund. The board shall also render such reports from time to time as the City Council shall direct. (Ord. 6551-NS § 1, 2000; Ord. 3558-NS § 6, 1957)

All persons regularly appointed to service in the Police or Fire Departments of the City on and after July 1, 1957, other than those excluded by the definition of member or member of the Police or Fire Department in Section 4.28.010D hereof, shall become members of the pension system created by this chapter upon filing with the City Auditor a written authorization to make salary deductions for the payment of required contributions to the fund. (Ord. 3558-NS § 7, 1957)

A. Whenever any member of the Police or Fire Department shall have served in the aggregate for any of the periods of service listed below, they shall be entitled upon written application to the board to retire from the service and to receive pension benefits listed below:

1. After twenty years of aggregate service as herein defined and upon reaching sixty years of age, fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

2. After twenty-five years of aggregate service as herein defined and upon reaching fifty years of age, fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

3. After twenty-six years of aggregate service as herein defined and upon reaching fifty years of age, 53.33 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

4. After twenty-seven years of aggregate service as herein defined and upon reaching fifty years of age, 56.67 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

5. After twenty-eight years of aggregate service as herein defined and upon reaching fifty years of age, sixty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

6. After twenty-nine years of aggregate service as herein defined and upon reaching fifty years of age, 63.33 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

7. After thirty years of aggregate service as herein defined, regardless of age, 66.67 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

B. In the event that a member who has previously been retired for disability in the actual performance of duty, under the provisions of Section 4.28.090, and has been restored to active service, shall be entitled to a pension under the terms of this section, then the basis of the pension shall be the average monthly rate of salary which such member shall have received during the three years immediately preceding the disability for which such previous pension was granted, or in the event of service less than three years in length immediately preceding the disability for which such previous pension was granted the average monthly rate of salary which such member shall have received during such period of service, or the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement under the provisions of this section, or in the event of service less than three years in length after such restoration to active service, the average monthly rate of salary which such member shall have received during such period of service, whichever is the greater.

C. In the event that a member who has previously been retired for disability not in the actual performance of duty, under the provisions of Section 4.28.100, and has been restored to active service, shall be entitled to a pension under the terms of this section, then the basis of the pension shall be the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement under the provisions of this section, or in the event of service less than three years in length after such restoration to active service the average monthly rate of salary which such member shall have received during such period of service.

D. In the event that a member who has previously been retired for disability in the actual performance of duty, under the provisions of Section 4.28.090, and has not been restored to active duty, shall become entitled to a pension under the terms of this section, such pension shall be fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the disability, regardless of the length of such member’s aggregate service. (Ord. 3558-NS § 8, 1957)

A. Whenever any member of the Police or Fire Department shall become mentally or physically disabled by reason of the immediate or direct performance or discharge of their duty, the board shall, upon their written request, or without such request if it deems it to be for the good of said Police or Fire Department, as the case may be, retire such person and order and direct that they shall be paid from the fund during the period of their disability a pension equal to fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement, or in the event of service less than three years in length, a pension equal to fifty percent of the average monthly rate of salary which such member shall have received during such period of service; provided, however, that in the event such disabled member is eligible for service retirement benefits under the provisions of Section 4.28.080 hereof, they may elect to be retired for disability as in this section provided and receive the service retirement benefit for which they are eligible under said Section 4.28.080, in which case the pension payable to their surviving spouse, their child or children under the age of eighteen years, or their dependent mother or father, as the case may be, as provided in Section 4.28.150 hereof, shall be thirty-three and one-third percent of the average salary upon which said member’s pension was based. Such election shall be final and cannot be changed after the member has received any benefits thereunder.

B. In the event that such disability as covered in this section shall cease, such pension shall cease and such person shall be restored to active service at the rank which they held prior to such retirement; provided, however, that this provision shall not apply in the case of a member who has elected to receive the service retirement benefit as hereinabove in this section provided.

C. No provisions of this section shall be construed to preclude the surviving spouse, child or children under the age of eighteen years, or dependent mother or father of any member who is disabled in the actual performance of duty, whether such member has received benefits under the provisions of this section, from applying for or receiving the benefits to which they may be entitled under the provisions of other sections of this chapter. (Ord. 3558-NS § 9, 1957)

A. Whenever any member of the Police or Fire Department shall become mentally or physically disabled in any manner other than by reason of the immediate or direct performance or discharge of duty, so that they shall be unable to perform the duties of a member of their department, and such member has five hundred dollars or more on deposit in accumulated contributions or has served as a member of the Police or Fire Department for ten or more years, the board shall upon their written request, or without such request if it deems it to be for the good of said Police or Fire Department, retire such person and order and direct that they shall be paid from the fund during the period of their disability a monthly pension as follows:

A sum equal to 1.5 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement, or in the event of service less than three years in length the average monthly rate of salary which such member shall have received during such period of service, multiplied by the number of years of service of such member. Provided, that if such member at the time of such retirement has more than ten years of service in the Police or Fire Department, the pension awarded under this section shall not be less than twenty-five percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement.

B. In determining years of service for the purposes of this section, any period of service less than a full year shall be included on a fractional basis in accordance with the number of months served during such period less than a full year; for example, a member who has served for five years and five months shall be deemed to have five and five-twelfths years of service. In making such determination, fifteen days or more shall be counted as a full month; less than fifteen days shall not be counted as a month.

C. If a person pensioned under this section secures gainful employment at any time prior to the time that they would have been eligible for service retirement benefits under this chapter if they had not been granted a pension under the provisions of this section, the amount of the pension paid hereunder shall be reduced by the amount which their earnings from such gainful employment, plus the pension paid hereunder, exceeds the average salary upon which the pension is based. Such reduction shall continue only during the time that they are gainfully employed and during the time prior to the time that they would have been eligible for service retirement benefits under this chapter if they had not been granted a pension under the provisions of this section.

D. On or before the fifth day of each month, every person pensioned under this section who is gainfully employed shall file with the secretary of the board a report of their earnings from such gainful employment for the preceding month. The amount of the pension to be paid hereunder for the month following the month for which the report is made shall be determined in accordance with such earnings report and the provisions of this section. Such reports need not be filed by a person pensioned under this section who is not gainfully employed, nor by a person pensioned under this section after the time that they would have been eligible for service retirement benefits under this chapter if they had not been granted a pension under the provisions of this section.

E. Nothing provided in this section shall prejudice the rights of any member under Sections 4.28.160 or 4.28.170 of this chapter. (Ord. 3558-NS § 10, 1957)

No person shall be retired, as provided in Section 4.28.090 and 4.28.100, or receive any benefit under said sections, unless there shall be filed with the board certificates of their disability, which certificates shall be subscribed and sworn to by two regularly licensed and practicing physicians. The board may require other evidence of disability before ordering such retirement and payment as aforesaid. (Ord. 3558-NS § 11, 1957)

Any person retired for disability under this chapter may be summoned before the board at any time thereafter, and shall submit themselves thereto for examination as to their fitness for duty. If the board shall find such person fit for duty, it shall order them to return to duty and shall order that their pension cease. Provided, however, that the provisions of this section shall not apply in the case of a person who has elected to receive the service retirement benefit as provided in Section 4.28.090 hereof. (Ord. 3558-NS § 12, 1957)

A. Whenever any member of the Police or Fire Department shall lose their life as a direct result of the actual performance of their duty, leaving a surviving spouse, child or children under eighteen years of age, or dependent mother or father, then upon satisfactory proof of such facts made to it, the board shall order and direct that a pension equal to fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the member’s death, or in the event of service less than three years in length, fifty percent of the average monthly rate of salary which such member shall have received during such period of service, shall be paid as follows:

1. To the surviving spouse of the member until remarriage or death;

2. Upon death of the surviving spouse, to the child or children of the member under the age of eighteen years until such child or children become eighteen years of age;

3. In the event the member leaves no surviving spouse, to the child or children of said member under the age of eighteen years until such child or children become eighteen years of age;

4. In the event the member leaves no surviving spouse and no child or children under the age of eighteen years, to the dependent mother or father of said member. The board shall have the power to determine the fact of such dependency and shall allow such pension to such parent or parents while such dependency shall continue.

B. Pension payments to be made to children under eighteen years of age as set forth under subdivisions 2 and 3 of subsection A of this section shall terminate with respect to each child at the time that such child reaches the age of eighteen, and the portion theretofore payable to such child shall be payable to the remaining children under the age of eighteen years.

C. In no event shall payments made under the terms of this section exceed fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the member’s death.

D. In the event the member leaves neither surviving spouse, nor child or children under the age of eighteen years, nor dependent mother or father, the total contributions of such member, without interest, shall be paid to their estate. (Ord. 3558-NS § 13, 1957)

A. Whenever any member of the Police or Fire Department shall die from causes other than as a direct result of the actual performance of duty, the total contributions of such member, with interest at the rate of two percent per year compounded annually as of January 1st of each year, plus a sum equal to one month’s salary of such deceased member for each year of service as a member, not to exceed six month’s salary, shall be paid to their surviving spouse; if they leave no surviving spouse, then to their child or children under the age of eighteen years; if they leave neither surviving spouse, nor child or children under the age of eighteen years, then to their dependent mother or father, the fact of such dependency to be determined by the board.

B. The month’s salary referred to in this section shall be the average monthly rate of salary which such deceased member shall have received during the three years immediately preceding the date of their death, or in the event of service less than three years in length the average monthly rate of salary which such member shall have received during such period of service.

C. In determining years of service for the purposes of this section, any period of service less than a full year shall be included on a fractional basis in accordance with the number of months served during such period less than a full year; for example, a member who has served for five years and five months shall be deemed to have five and five-twelfths years of service. In making such determination, fifteen days or more shall be counted as a full month; less than fifteen days shall not be counted as a month.

D. In the event the member leaves neither surviving spouse, nor child or children under the age of eighteen years, nor dependent mother or father, the total contributions of such member, without interest, shall be paid to their estate. (Ord. 3558-NS § 14, 1957)

A. Upon the death of any person receiving a pension under Sections 4.28.080, 4.28.160 or 4.28.170, or a person who has elected to receive the service retirement benefit as provided in Section 4.28.090, a pension equal to thirty-three and one-third percent of the average salary upon which said pension in said sections was based, and upon the death of any person receiving a pension under Section 4.28.090, except a person who has elected to receive the service retirement benefit as provided in said Section 4.28.090, a pension equal to fifty percent of the average salary upon which such pension in said section was based, shall be paid as follows:

1. To the surviving spouse of the pensioner until remarriage or death;

2. Upon the death of the surviving spouse, to the child or children of the pensioner until said child or children shall become eighteen years of age;

3. In the event the pensioner leaves no surviving spouse, to the child or children of said pensioner until said child or children become eighteen years of age;

4. In the event the pensioner leaves no surviving spouse and no child or children under the age of eighteen years, to the dependent mother or father of said pensioner. The board shall have the power to determine the fact of such dependency and shall allow such pension to such parent or parents while such dependency shall continue.

B. Pension payments to be made to children under eighteen years of age as set forth under subdivisions 2 and 3 of subsection A of this section shall terminate with respect to each child at the time that such child reaches the age of eighteen, and the portion thereof theretofore payable to such child shall be payable to the remaining children under the age of eighteen years.

C. In no event shall payments made under the terms of this section exceed thirty-three and one-third percent or fifty percent, as the case may be, of the average salary upon which the prior pension was based.

D. Upon the death of any person receiving a pension under Section 4.28.100, such pension shall cease and no further pension payments shall be made to anyone; provided that in the event the total pension payments made to such person receiving a pension under Section 4.28.100 are less than such person’s total contributions to the fund, computed without interest, the difference between such total pension payments and such total contributions with interest at the rate of two percent per year, compounded annually as of January 1st of each year, shall be paid to their surviving spouse; if they leave no surviving spouse then to their child or children under the age of eighteen years; if they leave neither surviving spouse nor child or children under the age of eighteen years, then to their dependent mother or father, the fact of such dependency to be determined by the board; if they leave neither surviving spouse, nor child or children under the age of eighteen years, nor dependent mother or father, then to their estate.

E. For the purposes of this section, compound interest shall be computed annually as of January 1st of each year on the total amount of the member’s accumulated contributions as of that date. Such interest shall be computed and allowed only for the period prior to the disability retirement under Section 4.28.100 of this chapter. (Ord. 3558-NS § 15, 1957)

A. Whenever any member of the Police or Fire Department shall become entitled to retire and receive pension benefits under Section 4.28.080, the board upon its own motion, after notice and hearing, may order the retirement of said member and the payment of the pension benefit to which they shall be entitled if such retirement is deemed advisable for the good of the service.

B. Whenever any member of the Police or Fire Department shall have completed in the aggregate twenty-five years of service, regardless of age, the board upon its own motion after notice and hearing may order the retirement of said member and the payment of a pension equal to fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement if such retirement is deemed advisable for the good of the service.

C. Whenever any member of the Police or Fire Department shall have completed in the aggregate twenty-six years of service, regardless of age, the board, upon its own motion after notice and hearing, may order the retirement of said member and the payment of a pension equal to 53.33 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement if such retirement is deemed advisable for the good of the service.

D. Whenever any member of the Police or Fire Department shall have completed in the aggregate twenty-seven years of service, regardless of age, the board, upon its own motion after notice and hearing, may order the retirement of said member and the payment of a pension equal to 56.67 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement if such retirement is deemed advisable for the good of the service.

E. Whenever any member of the Police or Fire Department shall have completed in the aggregate twenty-eight years of service, regardless of age, the board, upon its own motion after notice and hearing, may order the retirement of said member and the payment of a pension equal to sixty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement if such retirement is deemed advisable for the good of the service.

F. Whenever any member of the Police or Fire Department shall have completed in the aggregate twenty-nine years of service, regardless of age, the board, upon its own motion after notice and hearing, may order the retirement of said member and the payment of a pension equal to 63.33 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of retirement if such retirement is deemed advisable for the good of the service. (Ord. 3558-NS § 16, 1957)

A. In the event of separation from the service of any member of the Police or Fire Department who shall at the time of separation be entitled to a pension under the provisions of Section 4.28.080, or who shall have served in the aggregate in the Police or Fire Department for a period of twenty-five or more years, regardless of age, they shall be entitled upon written application to the board to the pension benefits listed below:

1. If entitled to pension benefits as set forth in Section 4.28.080, they shall be granted such pension benefits.

2. If they shall have served in the aggregate in the Police or Fire Department for a period of twenty-five years, regardless of age, they shall be entitled to a pension equal to fifty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of completion of twenty-five years of service, or during the three years immediately preceding the date of separation, whichever is the greater.

3. If they shall have served in the aggregate in the Police or Fire Department for a period of twenty-six years regardless of age, they shall be entitled to a pension equal to 53.33 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of completion of twenty-six years of service, or during the three years immediately preceding the date of separation, whichever is the greater.

4. If they shall have served in the aggregate in the Police or Fire Department for a period of twenty-seven years, regardless of age, they shall be entitled to a pension equal to 56.67 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of completion of twenty-seven years of service, or during the three years immediately preceding the date of separation, whichever is the greater.

5. If they shall have served in the aggregate in the Police or Fire Department for a period of twenty-eight years, regardless of age, they shall be entitled to a pension equal to sixty percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of completion of twenty-eight years of service, or during the three years immediately preceding the date of separation, whichever is the greater.

6. If they shall have served in the aggregate in the Police or Fire Department for a period of twenty-nine years, regardless of age, they shall be entitled to a pension equal to 63.33 percent of the average monthly rate of salary which such member shall have received during the three years immediately preceding the date of completion of twenty-nine years of service, or during the three years immediately preceding the date of separation, whichever is the greater.

B. None of the pension benefits provided in this section shall be paid to any member who shall be discharged from the service for conviction of a felony or crime involving moral turpitude, notorious or continuous insubordination or neglect of duty, habitual drunkenness or the use of narcotics, or who voluntarily resigns after twenty-five or more years of service but prior to reaching fifty years of age; provided, however, that in any such events the board, in its discretion, may order such pension to which the member would be entitled under the provisions of this section paid to the spouse, child or children under eighteen years of age, or dependent mother or father, if any, of such member. Upon the death of any member whose spouse, child or children under the age of eighteen years, or dependent mother or father, is receiving the pension under the provisions of this subsection, such pension shall cease and the surviving spouse, child or children under the age of eighteen, or dependent mother or father, if any, shall be entitled to a pension under the provisions of Section 4.28.150 in the same manner as if said member had been granted and was receiving a pension.

C. Any pension granted to the spouse of a member, under the terms of the preceding subsection, shall cease upon the death of such spouse or upon the dissolution of the marriage between said member and said spouse. Any pension granted to the child or children under the age of eighteen years, under the terms of the preceding subsection, shall cease with respect to each child at the time that such child reaches the age of eighteen, and the portion theretofore payable to such child shall be payable to the remaining children under the age of eighteen years. Any pension granted to a dependent mother or father, under the terms of the preceding subsection, shall cease when it is determined that the dependency of said mother or father has ceased.

D. In the event of the death of any member of the Police or Fire Department who shall at the time of death be entitled to a pension under the provisions of Section 4.28.080, or who shall have served in the aggregate for a period of twenty-five or more years, regardless of age, then upon application to the board, the surviving spouse, child or children under the age of eighteen years, or dependent mother or father, shall be entitled to a pension in the amount and in the order of succession as provided in Section 4.28.150 of this chapter. (Ord. 3558-NS § 17, 1957)

A. Should a member of the Police or Fire Department have married within one year prior to the date that the board by formal action has granted them a pension, or any time thereafter, then, upon the death of such member, their surviving spouse and/or child or children, the issue of said marriage, shall not be entitled to any pension under the terms of this chapter; provided, however, that this section shall not apply to the surviving spouse or child or children, if any, of any member who marries within one year prior to the date of granting of a pension under the provisions of Section 4.28.090.

B. Provided, further, that this section shall not apply to a surviving spouse or child or children, if any, who are entitled to benefits under the provisions of Sections 4.28.130 or 4.28.140 of this chapter.

C. In the event of a surviving spouse receiving a pension and refusing to provide for a dependent child or children under eighteen years of age, the board upon satisfactory proof shall have the power to divide the pension as it may deem proper.

D. If at any time a surviving spouse receiving benefits under the provisions of this chapter shall be convicted of a felony or crime involving moral turpitude, become an habitual drunkard or a narcotic addict, or become a nonresident of this state except upon permission of the board, the board may after notice and hearing order that the pension payments to them shall immediately terminate; provided, however, that the board in its discretion may order that the pension continue to the dependent child or children under the age of eighteen years, if any. (Ord. 3558-NS § 18, 1957)

The pensions granted under the terms of this chapter shall be based upon the average monthly rate of salary which such members shall have received during the three years immediately preceding the date of retirement, and shall be for a fixed amount that shall not increase nor decrease, regardless of any change in salary subsequent to the date of granting of the pensions for the rank or ranks that the members held prior to the granting of the pensions.

No pensions, benefits or return of contributions shall be granted to any person, nor shall any person be entitled to or receive any pensions, benefits or return of contributions under the provisions of more than one section of this chapter at the same time. (Ord. 3558-NS § 19, 1957)

In the event that any member shall become separated from the service voluntarily or involuntarily for any reason whatsoever, and such member or their spouse, surviving spouse, children, dependent parents or beneficiaries, shall not be entitled to any benefits under this chapter, then all monies paid into the fund by such member shall be returned to them or their beneficiaries without interest. (Ord. 3558-NS § 20, 1957)

Each member of the Police or Fire Department shall be retired from active service upon reaching age sixty. (Ord. 3558-NS § 21, 1957)

Any person making a claim upon the fund under any of the provisions of this chapter shall make a written application therefor upon forms provided by the board and kept on file in the office of the Chief of the Fire Department; and said application shall be filed by the applicant with the secretary of the board. A copy of said application shall be filed with the City Manager and with the Chief of the Fire Department.

Application to the board for benefits provided in this chapter, upon the death of a member or pensioner, must be made within one year from the date of death, or from the date of appointment of a guardian or trustee of the person to whom the said benefits would be payable, if such person is incompetent or is a minor: provided, that if application for death benefits is made under Section 4.28.110, and such application is denied, application may be made for benefits under Section 4.28.120 at any time within sixty days after notice of such denial. If application for death benefits is not made within the times herein provided, no death benefits shall be awarded or paid. (Ord. 4847-NS § 3 (part), 1976; Ord. 3558-NS § 22, 1957)

A. Each person who shall file an application for any of the benefits as provided in this chapter shall be given at least ten days’ written notice prior to the hearing at which their claim will be considered unless said notice shall be waived in writing by the applicant. Such notice shall specify the time and place of the hearing, and shall be served by registered mail, postage prepaid, to the applicant at the address shown on said application. The applicant shall be entitled to be present at the hearing as specified in said notice and to present such testimony, evidence or proof in support of their claim as may be necessary and proper under the terms of this chapter.

B. Notice of the decision of the board on any of the cases pending before it shall be forwarded in writing to the applicant within seven days after such decision has been reached and in the manner in this section specified for the service of notice of hearing. The provisions of this section shall apply to any and all hearings before said board as specified in this chapter.

C. No hearing shall be required on application for return of contributions to a member under the provisions of Section 4.28.200; provided, however, the board, in its discretion, may require a hearing on such application. (Ord. 3558-NS § 23, 1957)

All pension benefits except those provided for in Section 4.28.140 shall be paid in equal monthly payments on the last day of each month.

Benefits due under Section 4.28.140 and the return of contributions under Section 4.28.200 shall be paid in one payment within thirty days from the date of the award by the board; provided, that when no hearing is held on application for return of contributions to a member under Section 4.28.200, such return of contributions shall be made upon the order of the chairperson and secretary of the board without the necessity of an award by the board and payment of such return of contributions shall be made within thirty days from the date of the order of the chairperson and secretary. (Ord. 3558-NS § 24, 1957)

No person receiving a disability pension under the provisions of Sections 4.28.090 or 4.28.100 shall become a nonresident of the state without permission of the board; provided, however, that the provisions of this section shall not apply to any person whose age and aggregate service, including the time during which they have received said disability pension, are such as would entitle them to service retirement benefits if they were not receiving a disability pension. (Ord. 3558-NS § 25, 1957)

Whenever any member who shall receive a pension from the fund shall wilfully disobey the requirements and orders of the board; be convicted of a felony or crime involving moral turpitude; become an habitual drunkard or narcotic addict; become a nonresident of the state without permission of the board where such permission is required by Section 4.28.250; then the board may, after notice and hearing, order that the pension payments to them shall immediately terminate; provided, however, that the board in its discretion may order the pension to be paid to such dependents of said person, if there be any, in the order of succession as set forth in Section 4.28.150 of this chapter. (Ord. 3558-NS § 26, 1957)

No person receiving a pension under the provisions of this chapter shall serve in any elective position in the City, nor shall such person receive any payment for services rendered to the City after retirement, provided that services as an election officer or juror shall not be affected by this section. (Ord. 3558-NS § 27, 1957)

A. The fund shall be established and maintained on a contributory basis. The contributions of the member together with the contributions of the City shall be paid into the fund. The contributions of the members will be made by deductions from each payroll; the contributions of the City shall be made annually.

B. Each member’s contributions shall be one-fourth of the cost of the service retirement benefits provided for the member and dependent or dependents at the earliest possible retirement age, such cost to be determined by actuarial valuation; provided, however, that for the purpose of fixing the cost of the dependency benefit, each member shall be deemed to be married and their spouse to be the same age as the member. The City’s contribution shall be such amounts as may be necessary, when added to the member’s contributions, to provide the benefits payable under this chapter.

C. Members’ contributions will vary depending upon the age of the individual member at the time of their entry into the system.

D. Actuarial valuations of the cost of the benefits hereunder shall periodically be made; such valuations shall be made whenever ordered by the board but in any event at least once every five years. After each actuarial valuation the board shall redetermine and reestablish the rates of contribution for the members and the City based upon such actuarial valuation which has been approved and adopted by the board. (Ord. 3558-NS § 28, 1957)

All contributions of members of the Police or Fire Department, made under the procedure provided in the preceding section, shall be on a purely voluntary basis. No deductions shall be made from the salary of any member unless and until such member shall authorize the City Auditor in writing to make the deductions for contributions in the manner and amounts as provided in Section 4.28.280. (Ord. 3558-NS § 29, 1957)

A.

1. Any member who is on leave of absence without pay, excepting those on extended military or maritime leave, must continue to pay monthly directly to the fund for the period of such leave of absence. The amount of this contribution shall be based upon the salary such member would have received if they had continued on active duty with the City, and in the amount as provided in Section 4.28.280.

2. In the event any such member fails to make such monthly payments within ten days after they become due, then no portion of said leave of absence without pay shall be counted toward aggregate service, as defined in Section 4.28.010A of this chapter, and any payments made during such leave shall be refunded to said member upon the termination of their leave.

B. Any member who is on extended military or maritime leave of absence without pay may continue to pay monthly directly to the fund for the period of such leave of absence. The amount of this contribution shall be based upon the salary such member would have received if they had continued on active duty with the City, and in the amount as provided in Section 4.28.280.

C.

1. If any member who is on extended military or maritime leave of absence without pay fails to make the monthly contribution under subsection B hereof while on said leave of absence, then the total amount of unpaid contributions must be paid as follows:

(a) The total amount of such unpaid contribution or any portion thereof may be paid within thirty days from the expiration of such leave, without interest; or

(b) The total amount of such unpaid contribution or any portion thereof must be paid by the member in monthly payments to the fund, with interest at the rate of three percent per year on the reducing monthly balance and continue until the entire amount is fully paid.

2. The monthly payment must be in an amount not less than the monthly pension payment being made by the member under Section 4.28.280. Such additional monthly payment shall include both principal and interest.

3. The first monthly payment must be made within thirty days after the termination of the extended military or maritime leave of absence.

4. Any payment to be made under subsection C(1)(b) of this section may be made by payroll deductions when written authorization therefor is on file with the City Auditor.

D. In the event any of the contributions or portions thereof are unpaid at the time of the granting of any of the benefits under the terms of this ordinance, then the total amount of such unpaid contributions, and interest, shall be deducted from such benefits before any payment is made from the fund. (Ord. 3558-NS § 30, 1957)

Any member of the Police or Fire Department after thirty days’ written notice to the secretary of the board and to the Auditor of the City, may cease contributing to the fund and thereafter neither they nor their beneficiaries shall be entitled to and shall not be paid any of the benefits under this chapter; provided, however, that upon the death or separation from the service such member, or their beneficiaries, shall be entitled to the return of any contributions without interest, made by such member to the fund.

Any member who has ceased to contribute to the fund, under the provisions of this section, and who shall thereafter wish to avail themselves of the provisions of this chapter, shall be fully reinstated and entitled to all benefits under this chapter upon filing with the City Auditor a written authorization to make salary deductions for the payment of required contributions to the fund; provided, however, that such member shall pay to the fund a sum equal to the total amount of contributions such member would have made to the fund, under the provisions of this chapter, during the period they did not contribute. In the event such member fails to pay the amount of such contributions for such period within thirty days from the date that they file with the City Auditor such written authorization, then the total amount of any unpaid portion thereof shall bear interest at the rate of six percent per year compounded semiannually from the date they again begin contributing to the fund until paid; provided, however, that in the event any such contributions are unpaid at the time of the granting of any of the benefits under the terms of this chapter, the total amount unpaid with interest as above provided shall be deducted from such benefits before any payment is made from the fund. (Ord. 3558-NS § 31, 1957)

In the event that any person who has become separated from the service and has had their contributions returned to them under the terms of Section 4.28.200 shall be reappointed to the service as a member of the Police or Fire Department, they shall repay into the fund an amount equal to the sum returned to them at the time of their separation from the service. If such repayment is not made in full within six months from the date of reentering the service, then the amount to be repaid or any unpaid balance thereof shall bear interest at the rate of six percent per year compounded semiannually from the date of such person’s reentering the service until paid; provided, however, that in the event such repayment has not been made at the time of granting of any of the benefits under the terms of this chapter, then such amount with interest as above provided shall be deducted from the benefit before any payment is made from the fund. (Ord. 3558-NS § 32, 1957)

A. The City Treasurer shall be custodian of the fund, which shall consist of the monies contributed by the City and the moneys contributed by the members of the Police and Fire Departments, and may deposit any moneys of the fund in accordance with the laws of the state and the Charter of the City.

B. Reserves in the fund not needed in any fiscal year for current payments of pensions and expenses of the board may be invested for the benefit of the fund as follows:

1. In any depository in which the moneys deposited are guaranteed by an agency of the federal government;

2. In real property or improvements constructed or to be constructed on real property when such real property or such improvements are acquired for sale or lease to a public agency, provided:

(a) The board is owner in fee title of, or acquires fee title to, the real property or real property and improvements in and upon which such investment is to be made,

(b) Before making such an investment, an appraiser shall be appointed who shall examine the property or the plans and specifications of any improvement proposed to be constructed and who shall determine whether the project in their opinion will have a fair rental value sufficient to return the investment together with interest over a period of time not to exceed fifty years,

(c) Before making such an investment, the board shall enter into a lease or lease-option agreement with the public agency lessee under which such public agency agrees to rent the property at a monthly rental and for a period not to exceed fifty years,

(d) "Public agency," as used herein means a City, school district, political subdivision or political corporation of this state,

(e) In order to make the provisions of this subdivision B 2 relating to the investment of pension fund reserves completely effective, the board is authorized for investment purposes only to purchase, sell or lease real property or to enter into options therefor, and when necessary for investment purposes, to enter into contracts for the construction of buildings and may repair and maintain such property and do any and all things necessary to protect the investment including, but not limited to, purchasing insurance against the loss of the property or the loss of use and occupancy of the property. It may also take any other action necessary to carry out the investment provisions hereof. In the construction of buildings the board shall follow substantially and insofar as applicable, the procedure and limitations prescribed by law for the construction of buildings by the City;

3. In first mortgages and first deeds of trust;

4. In common stocks and preferred stocks, as in the informed opinion of the board, or, if an investment counseling firm or firms have been employed by the board for the management of the investment of the pension fund reserves, in the informed opinion of such investment counseling firm or firms it is prudent to invest pension fund reserves;

5. Except as herein otherwise provided, investment of all reserves of the pension fund shall be subject to the terms, conditions, limitations and restrictions imposed by the laws of the state upon the making of investments by savings banks, except that the provisions of the law limiting the amount which a savings bank may invest in securities to a specific percent of its paid-up capital and surplus, or savings deposits, shall not apply to investments authorized by the terms of this paragraph 5.

C. Any and all interest earned by the monies deposited or invested in accordance with the provisions of this section shall be paid into the fund and become a part thereof.

D. Except as herein provided, no member or employee of the board shall have any interest, direct or indirect, in the making of any investments or in the gains or profits accruing therefrom. No member eligible under this pension plan and no member or employee of the board, directly or indirectly, for themselves or as an agent or partner of others, shall borrow any of its funds, or in any manner use the same, except to make such current and necessary payments as are authorized by the board. (Ord. 4962-NS §§ 1, 2, 1977; Ord. 4892-NS §§ 1, 2, 1976; Ord. 4141-NS (part), 1966; Ord. 3558-NS § 33, 1957)

The provisions of this chapter and the pensions and benefits provided herein shall apply only to those persons who are first employed by the Police or Fire Department on or after the effective date of this chapter.

In no event shall the provisions hereof or the pensions and benefits provided hereunder apply to any person receiving a pension from the City at the effective date thereof under any other pension statute or ordinance applicable to the City policemen or firemen. (Ord. 3558-NS § 34, 1957)

Notwithstanding any other provision of this chapter, the retirement allowance payable to any person who becomes a member on or after January 1, 1990, shall in no event exceed the limitation imposed by Section 415(b) of the Internal Revenue Code of 1986 as applied (other than paragraph (2)(G) without regard to paragraph (2)(F)). Section 415(b) is hereby incorporated by reference. (Ord. 5951-NS § 1, 1989)

Nothing herein shall prevent the withdrawal of all voluntary contributions made to the police and fire employees pension fund by those employees regularly appointed to service in the Police or Fire Department of the City between July 1, 1957 and March 1, 1973, and who have elected to enter the public employees retirement system, and nothing herein shall prevent the transfer of said voluntary contributions to the board of administration, public employees retirement system. Upon written authorization from said employees, the City Auditor shall withdraw and transfer voluntary contributions of said employees made to the police and fire employees pension fund to the public employees retirement system. Upon written authorization, the City Auditor shall make deductions from the salary of those employees electing to enter the public employees retirement system and transfer said deductions to the public employees retirement system. (Ord. 4623-NS § 3, 1973; Ord. 3558-NS § 37, 1957)