Part 10A

REEMPLOYMENT OF DISABILITY RETIREE

Sections:

Anything elsewhere in this chapter to the contrary notwithstanding, if the disability for which a person has been granted a disability retirement or disability retirement allowance pursuant to the provisions of this chapter should cease, and if in addition such person should be then ready, willing and able to be reinstated to duty in and to assume and perform the responsibilities and duties of the position from which he was retired for disability and of any other position in the same class of positions, then in that event such person shall nonetheless continue to be deemed retired for the disability which no longer exists, and continue to be entitled to such disability retirement allowance, if any, as he would be entitled to under the provisions of this part if the disability for which he was retired had not ceased, until he is reinstated to duty in the position from which he was retired or in any other position in the same class of positions, or until he rejects an offer to reinstatement in any such position, or until he refuses or fails to report to duty in any such position when requested to do so, or becomes unable for any reason to accept reinstatement to duty in, or to assume and perform the responsibilities and duties of, the position from which in the same class of positions, whichever is the earlier; provided, however, that nothing herein this section contained shall be deemed to deprive the retirement board of any rights which it might otherwise have under other provisions of this chapter to cancel, terminate, suspend or reduce said

• 3.28.1442 Reemployment of disability retiree in city service - Eligibility.

• 3.28.1443 Reemployment; disability allowance suspended; credit to city.

• 3.28.1444 Credit for prior years.

• 3.28.1445 Medical examination of recipient - Cancellation of allowance.

• 3.28.1446 Reinstatement to duty.

• 3.28.1447 Refusal to accept reinstatement.

• 3.28.1448 Reserved.

• 3.28.1449 Failure or refusal to submit to medical examination.

3.28.1449.1 Payment of disability allowances to constitute return and withdrawal of contributions.

• 3.28.1449.2 Failure to reinstate recipient of a disability allowance to duty on cessation of disability.

• 3.28.1449.3 Disability while reemployed in new class of city positions.

3.28.1449.4 Member not to receive both service retirement and disability retirement benefits.

• 3.28.1449.5 Reemployment conditions upon cessation of disability.

• 3.28.1449.6 Election to allow accumulated contributions to remain in fund.

• 3.28.1449.7 Payment to member's estate of balance of member's accumulated contribution, applied to reemployed disability retiree.

T3:219

SAN JOSÉ CODE

§ 3.28.1441

• 3.28.1449.12 Reemployed member not to receive concurrent disability retirements, nor service retirement.

The provisions of this part shall be applicable only where, prior to reemployment in city service, the affected disability retiree has, in writing, filed with the retirement board, election to be governed by this part, and the city has given written notification to such retiree that it also so elects.

Notwithstanding anything contained in Chapter 3.20 through Chapter 3.28 to the contrary, this Part 10A shall supersede only inconsistent or conflicting provisions of any part therein, unless an exception is expressly made within this part. Except to the extent such provisions of Chapter 3.20 through Chapter 3.28 are in conflict or inconsistent, the city and the affected disability retiree, and the survivors and estate thereof, shall each be governed by such other provisions. (Ord. 19839.)

• A. Subject to the civil service rules, regulations and requirements of the City, a person who has been retired for disability pursuant to Part 17 or Part 18 of Chapter 3.24 or Part 10 of Chapter 3.28 of this Code may be reemployed from time to time in City service pursuant to voluntary agreement of both the City and such person, in any positions or offices other than the position or office held by that person at the time of such retirement whether in the same or another classification, if, based on medical and physical examination, the person is not incapacitated for performance of duty

  • in any such new position or office, notwithstanding that he or she is still incapacitated for performance of duty in the position or office held at the time of such retirement and in any other office or position in the same classification of offices or positions as the one held at the time of such retirement. If such person is reemployed on or after September 30, 2012 and the reemployed person meets the definition of Tier 2 member under Section 3.28.030.28, such person shall become a Tier 2 member of this System as of the date of his or her reentry into the Federated City Service.

• B. Upon such reentry into City service, the person's disability retirement shall be suspended and the person shall be reinstated to membership in this Plan and his or her membership herein pursuant to this paragraph shall continue, subject to other provisions of this Part, until the cessation of the person's disability for performance of duty in the office or position held at the time of his or her disability retirement, or in any other office or position in the same classification of offices or positions within which he or she was included at such retirement, unless the office or position which the person held upon such cessation of disability is one which would qualify him or her for membership by virtue of other provisions of this Part. In the latter event, the person's membership shall continue as long as he or she occupies such office or position, or any other office or position to which the person is subsequently appointed which similarly qualifies him or her for membership. If the reentry into City service occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, the reinstated member shall become a Tier 2 member of this System as of the date of his or her reentry into Federated City Service.

• (Ords. 19839, 27838, 29120, 29904.)

• A. Upon a person's reentry into City service pursuant to Section 3.28.1442, the disability al-

T3:220

PERSONNEL

§ 3.28.1445

lowance granted pursuant to Part 17 or Part 18 of Chapter 3.24 or Part 10 of Chapter 3.28 of this Code shall be suspended and the City shall compensate the person at the greater of:

1. The rate of compensation of the position in which the person is reemployed; or

2. The rate of compensation of the position from which the person retired at the time of such retirement.

• B. In any case where the rate of compensation of the position from which the person retired exceeds the rate of compensation of the position in which the person is reemployed, the City shall receive a credit against City contributions otherwise due to the retirement fund. The credit shall be equivalent to that portion of the compensation paid to the person during the suspension of the person's disability retirement that exceeds the rate of compensation of the position in which the person is reemployed.

• C. During the period the person's disability retirement is suspended and the person is reemployed, the person's "compensation earnable" shall be based upon the position of reemployment; provided, however, that if such person's reemployment occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, then any benefits provided following reemployment shall be determined under the provisions applicable to Tier 2 members using the person's "compensation earnable" as defined for Tier 2 members in Section 3.28.030.06.

• (Ords. 19839, 27838, 29120, 29904.)

Upon reinstatement of membership in this System under Part 10A, the recipient of a disability retirement allowance shall become a member of this System and regain credit for those years of service to which he or she was entitled at the time he or she retired for disability; provided, however, that if such person's reinstatement occurs on or after September 30, 2012 and the person meets the defi-

nition of Tier 2 member under Section 3.28.030.28, then the member shall be a Tier 2 member and any subsequent retirement allowance payable on or after September 30, 2012 shall be computed under the provisions applicable to Tier 2 members. (Ords. 19839, 29120, 29904.)

• A. The Retirement Board may at any time refer any recipient of a disability retirement allowance to the independent medical panel for the purpose of re-evaluation at a reasonable time and place to be determined by the Board. Upon such re-evaluation and other relevant evidence, the independent medical panel shall determine whether the recipient is still incapacitated for the performance of duty in the position or office held by him or her at the time he or she retired for disability, or in another position or office in the same classification of positions or offices as the one in which he or she was included at the time he or she was so retired. If the independent medical panel finds that he or she is not so incapacitated, it shall make a written finding to that effect; whereupon, unless expressly provided elsewhere in this Part 10A, the disability retirement allowance shall thereupon immediately cease and be terminated.

• B. Upon any such recipient's application for reinstatement from disability retirement to active duty, the Board shall refer the matter to the independent medical panel for evaluation. The recipient of the disability allowance may submit a medical report by his or her own physician or surgeon. Upon the basis of such examination and other relevant evidence, the independent medical panel shall determine whether the recipient is still incapacitated for the performance of duty in the position or office held by him or her at the time he or she retired for disability, or in another position or office in the same classification of positions or offices as the one in which he or she was

T3:221

SAN JOSÉ CODE

§ 3.28.1445

included at the time he or she was so retired. If the independent medical panel finds that he or she is not so incapacitated, it shall make a written finding to that effect; whereupon, unless expressly provided elsewhere in this Part 10A, the disability retirement allowance shall thereupon immediately cease and be terminated.

C. If any recipient of a disability retirement allowance fails or refuses to submit to medical examination or examinations as ordered or required by the independent medical panel, the Board shall thereupon terminate said person's disability retirement and disability retirement allowance, in which event, subject to the following provisions, such person shall have no right to restoration to duty under or by virtue of any provisions of this Chapter, nor shall he or she or any of his or her survivors nor his or her estate thereafter be entitled to any allowances or benefits under this System; provided, however, that if said person should apply for reinstatement of said disability retirement within one (1) year from and after the date of termination of said retirement, and if he or she should prove to the satisfaction of the independent medical panel that his or her disability continues and has not ceased, the Board may reinstate said disability retirement and disability allowance as of the date of the order of such reinstatement or as of such prior date which the Board should find to be just and reasonable based on a determination by the independent medical panel; and provided further, that if said person should die before having said disability retirement and disability retirement allowance reinstated as aforesaid and within one (1) year from and after the date that the Board terminated said disability retirement, then in that event the surviving spouse or surviving child or children of said deceased person or his or her estate may, within said one (1) year from and after the date the Board terminated the retirement allowance, apply to the Board for such survivor's or death benefits,

if any, as they would be entitled to if the deceased person's disability retirement had not been terminated as aforesaid, and if they should prove to the satisfaction of the independent medical panel that the deceased person's original disability continued to the time of his or her death, the Board upon a determination by the independent medical panel may grant to them such survivorship or death allowances or benefits as they would have been entitled to if the abovementioned disability retirement had not been terminated as aforesaid. In no event shall said disability retirement or disability retirement allowance be reinstated unless application therefor has been made within one (1) year from and after the Board terminated such retirement; and in no event shall any survivorship allowances or death benefits be granted to anyone pursuant to the provisions of this Section unless application therefor has been made within one (1) year from and after the date the Board terminated said disability retirement.

(Ords. 19839, 29904.)

If, on the motion of the Board or application of a disability retiree, the independent medical panel determines that the recipient of a disability allowance granted pursuant to the provisions of this Part is no longer incapacitated for performance of duty, and if as of the date of such determination such person is not eligible for a service retirement, such person shall, subject to the civil service provisions of the City, and subject to the provisions of this Part, be reinstated in the position held by him or her at the time he or she retired for disability or in another position in the same classification of positions as the one held by him or her at the time he or she was retired with duties within his or her capacities; if such reinstatement occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, the reinstated employee shall become a Tier 2 member.

T3:222

PERSONNEL

§ 3.28.1449

No person shall be required to be reinstated to duty if he or she was eligible for a service retirement on the date that the Board made its determination that the person was no longer incapacitated for the performance of duty. Upon being reinstated to duty pursuant to the provisions of this Section, the person shall again become a member of this System by reason of such reinstatement and shall be entitled to credit for past service, the same as if he or she had never been retired for disability; provided, however, that if the reinstatement occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, the reinstated member shall become a Tier 2 member and any subsequent retirement allowance payable on or after September 30, 2012 shall be computed under the provisions applicable to Tier 2 members. (Ords. 19839, 27838, 29120, 29904.)

If, after the independent medical panel finds that the recipient of a disability allowance is no longer incapacitated for duty, and after such person becomes entitled to reinstatement to duty as provided in Section 3.28.1446 such person fails to report for duty, although work is offered him or her in his or her prior position or classification of positions, or rejects an offer of reinstatement and return to duty, all rights granted him or her by this Part shall thereupon be canceled and neither he or she nor his or her survivors shall thereafter be entitled to any benefits provided by Part 1 of Chapter 3.28 except as follows: Such person shall be deemed to be a person appointed under Section 3.28.450 or 3.28.455, depending upon the date such person is deemed appointed, effective for the first time upon reemployment, and all qualifications for and the nature and extent of all benefits hereunder shall be so determined solely upon the compensation and service provided on and after such reemployment. (Ords. 19839, 29120, 29904.)

Editor’s note— Ord. 27838, § 15, adopted September 12, 2006, repealed § 3.28.1448, which pertained to recipient attaining age fifty-five to be deemed permanently disabled.

If any recipient of a disability retirement allowance fails or refuses to submit to medical examination or examinations as ordered or required by the independent medical panel or administrative law judge, upon certification by the panel to the Board, the Board shall thereupon terminate said person's disability retirement and disability retirement allowance, in which event, subject to the following provisions, such person shall have no right to reinstatement to duty under or by virtue of any provisions of this Part, nor shall he or she or any of his or her survivors nor his or her estate thereafter be entitled to any allowances or benefits under this System; provided, however, that if said person should apply for reinstatement of said disability retirement within one (1) year from and after the date of termination of said retirement, and if he or she should prove to the satisfaction of the independent medical panel that his or her disability continues and has not ceased, upon certification by the independent medical panel to the Board, the Board may reinstate said disability retirement and disability allowance as of the date of the order of such reinstatement or as of such prior date which the Board should find to be just and reasonable based on a determination by the independent medical panel; and provided further, that if said person should die before having said disability retirement and disability retirement allowance reinstated as aforesaid and within one (1) year from and after the date that the Board terminated said disability retirement, then in that event, the surviving spouse or surviving child or children of said deceased person or his or her estate may, within said one (1) year from and after the date said Board terminated said retirement allowance, apply to said Board for such survivor's or death benefits, if any, as they would be entitled to if said deceased person's disability retirement had not been terminated as aforesaid, and if they should prove to the satisfaction of the independent medical panel that said deceased person's original disability continued to the time of his or her death, the Board upon a determination of the independent

T3:223

SAN JOSÉ CODE

§ 3.28.1449

medical panel may grant to them such survivorship or death allowances or benefits as they would have been entitled to if the above-mentioned disability retirement had not been terminated as aforesaid. In no event shall said disability retirement or disability retirement allowance be reinstated unless application therefor has been made within one (1) year from and after the Board terminated such retirement; and in no event shall any survivorship allowances or death benefits be granted to anyone pursuant to the provisions of this Section unless application therefor has been made within one (1) year from and after the date said Board terminated said disability retirement. (Ords. 19839, 29904.)

Anything elsewhere in this part to the contrary notwithstanding, the payment to, and receipt by, any person of any disability retirement allowance or allowances shall constitute and be deemed to be a return to and withdrawal by such person, to the extent of the amount of such allowance or allowances so paid to and received by him, of any and all contributions theretofore made by such person to the retirement fund prior to the date he was retired for disability, and the amount of such allowance or allowances so paid to and received by him shall be deducted from the amount of accumulated contributions in the fund which are credited to him; provided and excepting, however, that he shall be deemed to still have at least five hundred dollars in said fund for the purposes of qualifying for benefits under this system. Nothing herein contained, however, shall be deemed to restrict the amount of disability allowance payable to any such person to the amount of contributions theretofore contributed by him to the fund, it being the intent that such allowances shall continue to be paid to such person as provided by and subject to other provisions of this part even after all contributions standing to his credit shall have been so withdrawn and exhausted. (Ord. 19839.)

Anything elsewhere in this part to the contrary notwithstanding, if the disability for which a person has been granted a disability retirement or disability retirement allowance pursuant to the provisions of this part should cease, and if, in addition, such person should be then ready, willing and able to be reinstated to duty in and to assume and perform the responsibilities and duties of the position from which he was retired for disability or of any other position in the same class of positions, then in that event such person shall nonetheless continue to be deemed retired for the disability which no longer exists, and continue to be entitled to such disability retirement allowance, if any, as he would be entitled to under the provisions of this part of the disability for which he was retired had not ceased, until he is reinstated to duty in the position from which he was retired or in any other position in the same class of positions, or until he rejects an offer of reinstatement in any such position, or until he refuses or fails to report to duty in any such position when requested to do so, or becomes unable for any reason to accept reinstatement to duty in, or to assume and perform the responsibilities and duties of the position from which he was retired or of any other position in the same class of positions, whichever is the earlier; provided, however, that nothing herein in this section contained shall be deemed to deprive the retirement board of any rights which it might otherwise have under other provisions of this part to cancel, terminate, suspend or reduce said retirement or retirement allowance for any reason or reasons other than the fact that said disability has ceased. (Ord. 19839.)

If a recipient of a disability retirement allowance is reemployed in City service in a position other than that held by him or her at the time of his or her retirement and other than one in the same

T3:224

PERSONNEL

§ 3.28.1449.5

classification of positions as the one held by him or her at the time of his or her retirement, and if such recipient should become incapacitated for the performance of duty in such new position before his or her disability for the performance of duty in the position originally held by him or her or in any other position in the same classification as the position originally held by him or her at the time he or she was first retired ceases, thereupon, either:

• A. He shall resign or be discharged from his or her latest position, in which event he or she shall continue to have all such rights to a disability retirement allowance under this Part as he or she had prior to being reemployed by the City; or

• B. He may, if he or she so elects by giving written notice of such election to the Retirement Board within thirty (30) days from and after cessation of active duty in his or her latest position, and if he or she is otherwise eligible for the same under other provisions of this Part, be retired for disability from his or her latest position, in which event his or her former disability retirement and retirement allowance shall be automatically canceled and terminated as of the date of his or her new retirement.

If he or she is retired from his or her latest position pursuant to the above provisions of paragraph B, and if, thereafter, the disability because of which he or she was given his or her latest retirement should cease and all retirement allowances payable to him or her because of his or her latest disability retirement should cease, but his or her disability for the performance of duty in the position originally held by him or her or in any other position in the same classification of positions originally held by him or her has not ceased, then his or her original disability retirement and original disability retirement allowance shall be reinstated, to continue so long as his or her original disability exists. Such original disability allowance shall be in the amount last paid prior to its termination and shall not be modified solely by reason of the addi-

tional period of time succeeding its original determination during which the recipient has been reemployed under this Part 10A, nor shall it be increased or decreased by reason of any compensation earnable during the period of reemployment.

If he or she is retired from his or her latest position pursuant to the above provisions of paragraph B, and if, thereafter, his or her disability for his or her original position or class of positions should cease, then his or her latest disability retirement and all disability retirement allowances shall automatically cease and terminate and he or she shall have such rights to reinstatement to duty in his or her original position or class as are provided in Section 3.28.1446.

sions of paragraph B, and if, thereafter, his or her disability for his or her original position or class of positions should cease, then his or her latest disability retirement and all disability retirement allowances shall automatically cease and terminate and he or she shall have such rights to reinstatement to duty in his or her original position or class as are provided in Section 3.28.1446.

In no event shall any person be entitled to more than one (1) allowance at or for any one (1) time. Any person who is reemployed in City service and meets the definition of Tier 2 member under Section 3.28.030.28, shall become a Tier 2 member of this Retirement System and disability retirement provisions applicable to Tier 2 members shall apply to the Tier 2 member.

(Ords. 19839, 29120, 29904.)

Notwithstanding anything contained in this part to the contrary, no member who is retired for service pursuant to the provisions of Part 9 shall be eligible for or be entitled to retirement for any disability or for or to any benefits or allowances pursuant to the provisions of this Part 10A while he is so retired for service. Any and all disability retirement allowances otherwise payable to a person shall cease and terminate upon such person's being retired for service.

(Ord. 19839.)

Notwithstanding anything to the contrary in Chapter 3.20 through Chapter 3.28 of this Code, upon written election by the City and a disability

T3:225

SAN JOSÉ CODE

§ 3.28.1449.5

retiree reemployed under this Part 10A, such retiree may at any time prior to six (6) months before age seventy (70) and notwithstanding the limitations in Section 3.28.1448 be reinstated from disability retirement and the disability retirement allowance may be terminated in accordance with procedures and on the grounds set forth in Sections 3.28.1446 and 3.28.1449.2, notwithstanding that City does not offer the person the same position or office from which he or she was retired, or a position or office in the same classification of offices or positions which included him or her at such time provided that City offers and the person accepts the latest position or office of reemployment in which the person is employed; thereafter, for the purposes of this Part 10A and Section 3.28.030.06, compensation earnable for such position or office shall be the regular compensation therefor undiminished by such amounts as would otherwise have been paid as a disability retirement allowance to such person; provided, however, that if such person is reinstated to a position and meets the definition of Tier 2 member under Section 3.28.030.28, such person shall become a Tier 2 member and any subsequent retirement allowance payable on or after September 30, 2012 shall be computed under the provisions applicable to Tier 2 members. (Ords. 19839, 29120, 29904.)

• A. The provisions of Section 3.28.580 under which an election is an election granted to the persons specified therein to allow accumulated contributions to remain on deposit with the fund shall be deemed to grant a similar election to a Part 1, Chapter 3.24 disability retiree upon and after his reemployment by the city under this Part 10A. For the purpose of this Part 10A a former member of the Part 1, Chapter 3.24 retirement system reemployed hereunder while on disability retirement but receiving a disability retirement allowance shall be deemed a person reinstated from Part 1, Chapter 3.24 disability retirement within the

meaning of Sections 3.28.420, 3.28.480.C. and 3.28.480.F. notwithstanding that the disability retirement and disability retirement allowance continue and neither cease nor are canceled, and there is no reinstatement from disability under Section 3.24.1290 or 3.24.1300.

• B. Retirees reemployed under this Part 10A, other than those whose membership entitles them to the election mentioned in subsection A. of this section, shall upon and after such reemployment have such election to allow accumulated contributions to remain in the fund as is provided in Section 3.28.590.

• (Ord. 19839.)

The provisions of Section 3.28.1070 shall apply to a disability retiree reemployed under this Part 10A while receiving a disability retirement allowance; however for the purpose of this Part 10A, the term "death before retirement" as used therein shall mean and refer to the death of such disability retiree, either: (a) while reemployed and before retirement for service or for a new disability arising during the period of reemployment; or (b) after a voluntary or involuntary termination of service of such retiree from City service, other than by service retirement or the new disability retirement described in this Section, and such retiree was qualified to, and did in fact, leave on deposit all his or her accumulated normal contributions and accumulated prior service contributions; provided, however, that any disability retiree reemployed and meets the definition of Tier 2 member under Section 3.28.030.28, shall become a Tier 2 member. (Ords. 19839, 29120, 29904.)

A person reemployed under this Part 10A is not eligible for a service retirement under the Part 1 of Chapter 3.24 or Part 1 of Chapter 3.28 plan by reason of disability retirement or the receipt of a

T3:226

PERSONNEL

§ 3.28.1449.11

disability retirement allowance under either such plan; however such disability retirement and allowance therefore shall immediately cease and terminate upon service retirement under either such plan.

Whenever in Part 9 of the Chapter 3.28 plan provision is made for service retirement of a person who became a member of the Chapter 3.28 system pursuant to Section 3.28.420 of this Code, a Chapter 3.24 disability retiree reemployed hereunder shall be deemed to have qualified for and become a member of the Chapter 3.28 plan for the purpose of this part and section notwithstanding that his disability retirement and disability retirement allowance continue and he has not been reinstated from such disability retirement. (Ord. 19839.)

• A. A person retired for service pursuant to any of the provisions of Part 9 or 10A of the Chapter 3.28 plan shall not be retained or reemployed by the city, except as an independent contractor or pursuant to Section 3.28.1190, to render any city service unless the person is first reinstated from service retirement pursuant to the provisions of Part 9 of the plan.

• B. A person who has retired for service pursuant to the provisions of Part 9 or Part 10A of this chapter may be retained to render service to the city which is not federated city service only as provided in Section 3.28.1180.

• (Ords. 19839, 26355.)

A person who has been retired for service pursuant to the provisions of this Part may apply to the Retirement Board, in writing, for reinstatement from such retirement for the purpose of reentering City service. The Board may reinstate him or her from retirement if it finds: (a) that his or her age at the date of his or her application is at least six (6) months less than seventy (70) years of age; (b) that, based on medical and physical examination, he or she is not incapacitated to perform the duties of the office or position in the City service to which it is

proposed he or she be appointed. Upon such reinstatement, said person may be reemployed by the City, in the same manner as it employs persons who have not been retired hereunder, to render City service and if such reemployment occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, the person shall become a Tier 2 member.

Upon reinstatement from service retirement as aforesaid, the service retirement allowance of the reinstated person shall be canceled forthwith, and he or she shall again become a member of this System as of the date of his or her reinstatement. Upon reinstatement he or she shall regain credit for those years of service to which he or she was entitled to credit as of the time he or she retired for service.

(Ords. 19839, 29120, 29904.)

Retirees reemployed under this Part 10A shall be eligible for service connected disability retirement under Section 3.28.1280 and for nonserviceconnected disability retirement under Section 3.28.1290 where such disability occurs after reemployment. If not otherwise qualified under subsections A. or B. thereof for the purpose of this Part 10A, a former member of the Chapter 3.24 retirement system reemployed hereunder while on disability retirement and receiving a disability retirement allowance with accumulated contributions of five hundred dollars or more in the retirement fund shall be deemed a person reinstated within the meaning of Sections 3.28.1290.C., 3.28.420, 3.28.480.C., 3.28.480.F. and 3.28.420 as amended in Section 3.28.1320, notwithstanding that the disability retirement and disability retirement allowance continue, and neither cease nor are canceled, and there is no reinstatement from disability under Section 3.24.1290 or 3.24.1300.

(Ord. 19839.)

T3:227

SAN JOSÉ CODE

§ 3.28.1449.12

Notwithstanding anything to the contrary in Chapter 3.20 through Chapter 3.28 of this Code, no member is entitled to or shall receive two concurrent disability retirement allowances under any part of said Chapter 3.20 through Chapter 3.28. Further, no member who is retired for service pursuant to the provisions of Part 9 shall be eligible for or entitled to any retirement for any disability, or for or to any benefits or allowances pursuant to the provisions of this Part 10A while he is so retired for service; and any and all disability retirement allowances otherwise payable to a person shall cease and terminate upon such person being retired for service.

(Ord. 19839.)

Part 11 of the Chapter 3.28 plan shall apply to a disability retiree reemployed under this Part 10A; provided, however, that under Section 28.1460, the survivors and estate of such disability retiree shall not be disqualified from any such benefits by reason of the fact that the person so reemployed continued on disability retirement and was receiving a disability retirement allowance during reemployment. For the purpose of this Part 10A, the term "death before retirement" as used in Section 3.28.1460 means the death of a disability retiree who has become a member of this system by reemployment under Part 10A, occurring while said person is a member of this system and before he retires for service or a disability occurring after such reemployment; provided, however, that if such reemployment occurs on or after September 30, 2012, such person shall become a tier 2 member.

For the purpose of Section 3.28.1490 of said Part 11, a Chapter 3.28 disability retiree reemployed under this Part 10A shall be deemed to be a member of this system under Section 3.28.420, notwithstanding that his disability retirement and disability retirement allowance continue and he has not been reinstated from disability retirement. (Ords. 19839, 29120.)

Part 11

DEATH BEFORE RETIREMENT

Sections:

• 3.28.1450 Applicability of Part 11 provisions.

• 3.28.1460 Definitions.

• 3.28.1470 Eligibility for allowance.

• 3.28.1480 Amount of allowance to spouse, domestic partner or children if they are eligible under Section 3.28.1470.

• 3.28.1490 Benefits payable where deceased member was formerly a member of Chapter 3.24 retirement system and became a member of this system under Sections 3.28.410, 3.28.420, or 3.28.430 and surviving spouse, surviving domestic partner or children are not eligible for allowance under Sections 3.28.1470 and 3.28.1480.

• 3.28.1500 Death benefit - Description and conditions.

• 3.28.1510 Death benefit - Election for payment in installments.

• 3.28.1520 Surviving child's or children's allowances - How paid.

• 3.28.1525 Surviving children's allowances - Payment to custodian or trustee.

• 3.28.1530 Posthumous children.

Except as may be otherwise specifically provided by other provisions of this Chapter 3.28, the provisions of this Part 11 shall apply only if and when a member of this system dies while he is a member of this system and before being retired for service or disability (or, if he has previously been retired but later reinstated to federated city service and again becomes a member of this system, while he is again a member and before he again retires for service or disability). Notwithstanding any other

T3:228

PERSONNEL

§ 3.28.1470

provision of this retirement system, if a person is reinstated to federated city service on or after September 30, 2012, such person shall become a tier 2 member and provisions regarding benefits provided on death for tier 2 members shall be applicable to any such tier 2 member. (Prior code § 2904.1500; Ord. 29120.)

As used in this Part 11:

• A. "Death before retirement" means death of a member of this system while a member of this system and before retirement for service or disability. If a member should die after reinstatement from retirement and while a member of this system but before he or she again retires, such member's death shall be deemed to be "death before retirement."

• B. "Nonservice-connected death" means death of a member which is not a serviceconnected death.

• C. "Service-connected death" means death of a member which arises or results from an injury or disease arising out of and in the course of the federated city service for which such deceased member was entitled to credit under this system.

• D. "Surviving child" and "surviving children" mean such child or children of a deceased member that meet and satisfy all of the following conditions and requirements:

  1. The child survives the member's death; and

  2. The child is neither married nor a member of a registered domestic partnership at the time of the member's death; and

  3. The child is under the age of eighteen years at the time of the member's death; and

  4. If the child is an adopted child of the member, the adoption was completed pursuant to law prior to the

member's death. A child who has been married, but whose marriage has been dissolved by divorce or death, shall not be deemed to be a surviving child as said term is used in this Part 11. A child who has been a member of a registered domestic partnership, but whose partnership has been terminated through a proceeding for dissolution or by filing a notice of termination of domestic partnership, or by death, shall not be deemed to be a surviving child as said term is used in this Part 11.

• E. "Surviving spouse" means the person to whom a member was married at the time of the member's death who survives the member's death, and none other.

• F. "Surviving domestic partner" means the person:

  1. With whom a member, at the time of the member's death, had established a registered domestic partnership by filing a declaration of domestic partnership with the secretary of state pursuant to Division 2.5 of the California Family Code or had formed a legal union other than a marriage in a jurisdiction other than California and such union is recognized as a domestic partnership pursuant to California Family Code Section 299.2; and

2. Who survives the member's death.

(Prior code §§ 2904.1501 - 2904,1505; Ords. 23806, 27521.)

The benefits hereinafter specified in Section 3.28.1480 shall be payable to the persons specified in such section in each of the following situations, and none other:

• A. Upon the death before retirement of a non-Tier 2 member who at the time of

T3:229

SAN JOSÉ CODE

§ 3.28.1470

death was entitled to credit under this System for five (5) or more years of Federated City Service rendered after June 30, 1975;

• B. Upon the death before retirement of a Tier 2 member who, at the time of death, would have been entitled to immediately commence a retirement benefit;

• C. Upon the death before retirement of a member who was a former member of the Chapter 3.24 Retirement System who became a member of this System pursuant to the provisions of Section 3.28.400 and who, in addition, has five hundred dollars ($500.00) or more of accumulated contributions in the retirement fund at the time of death;

• D. Upon the death before retirement of any other member, regardless of amount of service or accumulated contributions, if such death is found and determined by the Retirement Board to be a serviceconnected death as such is defined in this Part 11.

(Prior code § 2904.1506; Ords. 21371, 23485, 29120, 29904, 30930.)

Allowances payable to those persons only who are eligible for an allowance under the provisions of Section 3.28.1470 shall be as follows:

• A. Subject to other provisions of this Chapter 3.28, in any of the situations specified in Section 3.28.1470, the surviving spouse or surviving domestic partner, if any, of such member shall thereafter be entitled to receive and be paid, from the retirement fund, the following annual allowance.

  1. If the deceased as of the time of his or her death, had attained the minimum age for service retirement and was credited with twenty (20) or

more years of Federated City Service, the surviving spouse or surviving domestic partner shall be entitled to receive said allowance until the surviving spouse or surviving domestic partner dies.

If the deceased, as of the time of his or her death, had not attained the minimum age for service retirement or was not credited with twenty (20) or more years of Federated City Service, the surviving spouse or surviving domestic partner shall be entitled to receive said allowance until the surviving spouse or surviving domestic partner dies or marries or establishes a subsequent registered domestic partnership, whichever is earlier.

3. Said annual allowance shall be equal to two and one-half percent (2.5%) of the deceased member's final compensation times the number of years of Federated City Service for which the deceased member was entitled to credit under the Retirement System at the time of the deceased member's death; provided and excepting, however, that:

   • a. Such annual allowance shall never be more than seventyfive percent (75%) of the deceased member's final compensation; and

   • b. Such annual allowance shall not be less than forty percent (40%) of the deceased member's final compensation if the deceased member at the time of death was in the employ of the City for the purpose of rendering Federated City Service and such employment had not been terminated by resignation, discharge or layoff.

T3:230

PERSONNEL

§ 3.28.1480

• B. Subject to other provisions of this Chapter, in any of the situations specified in Section 3.28.1470, if, at the time of said member's death, there is no surviving spouse or surviving domestic partner but there is or are one or more eligible surviving children, the following annual allowance shall be paid to said child or children, as follows:

  1. If there is only one (1) eligible surviving child, such child shall be entitled to receive and shall be paid, from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to twenty-five percent (25%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner under subsection A. of this Section if there had been a surviving spouse or surviving domestic partner.

e or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to twenty-five percent (25%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner under subsection A. of this Section if there had been a surviving spouse or surviving domestic partner.

2. If there are two (2) or more eligible surviving children, each surviving child thereafter in existence shall be entitled to receive and shall be paid from the retirement fund, until he or she attains the age of eighteen (18) years or marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance which would have been payable to the surviving spouse or surviving domestic partner under subsection A. of this Section if there had been a surviving spouse or surviving domestic partner which one bears to the total number of eligible surviving children in existence at the time any

such allowance becomes payable, subject to the following limitations:

  - a. The annual allowance payable to any surviving child shall never exceed twenty-five percent (25%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner under subsection A. of this Section if there were a surviving spouse or surviving domestic partner; and 

  - b. The total annual allowances payable to all children shall never exceed seventy-five percent (75%) of the annual allowance that would have been payable to a surviving spouse or surviving domestic partner if there were a surviving spouse or surviving domestic partner. 

• C. Subject to other provisions of this Chapter, in any of the situations specified in Section 3.28.1470, if at the time of said member's death there is a surviving spouse or surviving domestic partner but payment of an annual allowance to said surviving spouse or surviving domestic partner ceases because of his or her death or marriage or because he or she has established a subsequent registered domestic partnership, and if at the time of cessation of said surviving spouse's or surviving domestic partner's allowance there is or are one or more eligible surviving child or children, then in such event, the following annual allowance or allowances shall be payable, upon cessation of said surviving spouse's or surviving domestic partner's allowance, to the eligible surviving child or children then in existence, as follows:

  1. If only one (1) eligible surviving child exists after the surviving

T3:231

SAN JOSÉ CODE

§ 3.28.1480

spouse's or surviving domestic partner's allowance ceases, such child shall be entitled to receive and shall be paid, from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to twentyfive percent (25%) of the annual allowance which was theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner.

d to receive and shall be paid, from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to twentyfive percent (25%) of the annual allowance which was theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner.

2. If two (2) or more eligible surviving children exist after the surviving spouse's or surviving domestic partner's allowance ceases, each such child shall be entitled to receive and shall be paid, from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance which the surviving spouse or surviving domestic partner was theretofore entitled to receive under subsection A. of this Section, which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable, subject to the following limitations:

   • a. The annual allowance payable to any surviving child shall never exceed twenty-five percent (25%) of the annual allowance theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner; and

   • b. The total annual allowances payable to all the children shall never exceed seventy-five percent (75%) of the annual allowance theretofore payable under subsection A. of this Section to the surviving spouse or surviving domestic partner.

• D. Effective June 17, 2017, if the deceased person is a Tier 2 member on or after June 16, 2017 and meets the eligibility requirements of Section 3.28.1470, the Tier 2 member shall receive the same death benefits as provided to other members of this Plan under this Section 3.28.1480; provided, however, the annual allowance shall be equal to two percent (2.0%) of the deceased member's final compensation times the number of years of Federated City Service for which the deceased member was entitled to credit under the Retirement System at the time of the deceased member's death and in no event shall such annual benefit ever exceed seventy percent (70%) of the Tier 2 member's final compensation.

(Prior code § 2904.1507; Ords. 27521, 29120, 29904, 30930.)

• 3.28.1490 Benefits payable where deceased member was formerly a member of Chapter 3.24 retirement system and became a member of this system under Sections 3.28.410, 3.28.420, or 3.28.430 and surviving spouse, surviving domestic partner or children are not eligible for allowance under Sections 3.28.1470 and 3.28.1480.

Subject to other provisions of this Chapter 3.28, upon death before retirement of a member who formerly was a member of the Chapter 3.24 Retirement System and who became a member of this System under and pursuant to the provisions of Sections 3.28.410, 3.28.420, 3.28.430, if at the time of his or her death said member was credited with

T3:232

PERSONNEL

§ 3.28.1490

accumulated contributions of five hundred dollars ($500.00) or more, the following benefits shall be payable and shall be paid, from the retirement fund, to the following persons in the following circumstances; provided, however, if such member has become a Tier 2 member in no event shall any such benefit exceed seventy percent (70%) of the Tier 2 member's final compensation:

• A. If at the time of said member's death there is or are a surviving spouse, surviving domestic partner or surviving child or children but none of them is entitled to an allowance under and pursuant to the provisions of Sections 3.28.1470 and 3.28.1480, and if, in addition, the deceased member, as of the time of his or her death, had attained the minimum age for voluntary service retirement and was entitled to credit for twenty (20) or more years of Federated City Service, an annual allowance, equal to one-half (½) of the unmodified retirement allowance which said member would have been entitled to if he or she had retired for service on the date of death instead of dying, shall be payable as follows to the following persons:

  1. If the deceased is survived by a surviving spouse or surviving domestic partner, said allowance shall be paid to the surviving spouse or surviving domestic partner until he or she dies.

  2. If there is no surviving spouse or surviving domestic partner but there is only one (1) eligible child, said allowance shall be paid to the surviving child until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier.

  3. If there is no surviving spouse or surviving domestic partner but there are two (2) or more eligible surviving children, each surviving child

shall be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance which would have been payable to a surviving spouse or surviving domestic partner if he or she had existed which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable.

4. If there is a surviving spouse or surviving domestic partner but he or she dies and at the time of the death there is only one (1) eligible surviving child, such child shall thereafter be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, the same annual allowance as was theretofore paid to the surviving spouse or surviving domestic partner.

g domestic partner but he or she dies and at the time of the death there is only one (1) eligible surviving child, such child shall thereafter be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, the same annual allowance as was theretofore paid to the surviving spouse or surviving domestic partner.

5. If there is a surviving spouse or surviving domestic partner but he or she dies and at the time of the death there are two (2) or more eligible surviving children, each such child shall thereafter be paid, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance theretofore paid to the surviving spouse or surviving domestic partner as one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable.

T3:233

SAN JOSÉ CODE

§ 3.28.1490

6. If at the time of said member's death there is no surviving spouse, no surviving domestic partner, and no eligible surviving child or children, no allowance shall be payable under this Section.

• B. If the amount of all allowances paid or payable under the foregoing provisions of this Section is less than the amount of the death benefit which would be payable under the provisions of Section 3.28.1500 to the estate or beneficiary of the deceased member in the circumstances specified in such Section 3.28.1500, then in such event the amount of said death benefit less the total amount of all allowances paid and payable under the foregoing provisions of this Section shall be paid, when no allowances are any longer payable under this Section, to such child or children of the deceased member as may then exist who no longer are entitled to an allowance under the foregoing provisions of this Section, or, if there are no such children at such time, to the estate of said deceased member.

• C. The benefits hereinabove provided in this Section are in lieu of the death benefits which would be payable to the estate or designated beneficiary of the deceased member under and pursuant to the provisions of Section 3.28.1500 in the circumstances specified in said Section 3.28.1500.

However, the surviving spouse or surviving domestic partner or, if there is no surviving spouse or surviving domestic partner, all of the surviving children, may elect before any allowance is paid to any person under the foregoing provisions of this Section, to have the death benefit specified in Section 3.28.1500 paid to whomsoever may become entitled to it under the provisions of Section 3.28.1500,

ver, the surviving spouse or surviving domestic partner or, if there is no surviving spouse or surviving domestic partner, all of the surviving children, may elect before any allowance is paid to any person under the foregoing provisions of this Section, to have the death benefit specified in Section 3.28.1500 paid to whomsoever may become entitled to it under the provisions of Section 3.28.1500,

in lieu of having any benefits paid under or pursuant to the foregoing provisions of this Section; and, in such event, no benefits whatsoever shall be paid or be payable to any person under the provisions of this Section but said death benefit shall thereupon become payable under the provisions of Section 3.28.1500 to whomsoever may be entitled to the same under Section 3.28.1500. Any election made pursuant to the provisions of this subsection shall be in writing and must be filed with the Retirement Board before any allowance or benefit is paid to any person under this Section 3.28.1490. (Prior code § 2904.1508; Ords. 27521, 29120, 29904.)

• A. If, upon death before retirement of a member, no person is or becomes entitled to any benefits under any of the foregoing provisions of this Part 11, there shall be paid to the deceased member's estate, or to a beneficiary named by him or her if he or she elects to have such beneficiary receive such benefit in lieu of having it go to his or her estate. The death benefit for members shall be equal to the amount of all of the deceased member's accumulated contributions in this System plus the following: One-twelfth (1/12) of the annual compensation earned (or compensation earnable, if such is greater) by the deceased member during the twelve (12) months immediately preceding his or her death times the number of years of Federated City Service to which such deceased member was entitled to credit as of the date of his or her death; provided and excepting however, that the amount payable under this paragraph shall not exceed one-half (1/2) of the compensation earned (or compensation earnable, if such is greater) by the deceased member in said twelve-month period. Notwithstanding the foregoing, the death benefit for Tier 2

T3:234

PERSONNEL

§ 3.28.1520

members shall only be equal to a return of employee contributions plus interest if the Tier 2 member was not eligible for retirement at the time of death.

• B. A member may at any time designate, by a writing filed with the Board, a beneficiary to receive such benefits as may be payable to his or her beneficiary or estate under this Section.

• C. Except as hereinafter otherwise provided, the designation of beneficiary may be by class, subject to such conditions as may be imposed by Board rule, in which such members of the class as are in being at the time of the member's death shall be the beneficiary.

• D. The right of any person designated as a beneficiary by a member to any benefits hereunder shall also be subject to the Board's conclusive determination, upon evidence satisfactory to it of the existence, identity or other facts relating to entitlement of such person so designated as beneficiary, and payment made by the System in reliance on any such determination made in good faith, notwithstanding that it may not have discovered a beneficiary otherwise entitled to share in the benefit, shall constitute a complete discharge and release of the System from further liability for the benefit.

• E. The designation of a beneficiary under this Section may be revoked at the pleasure of the person who made it and a different beneficiary designated by a writing filed with the Board.

• F. The designation of the beneficiary by a member is not affected by termination of nor a break in his or her membership.

• (Prior code § 2904.1509; Ords. 29120, 29904.)

An election may be made to have the death benefit specified in Section 3.28.1500 paid in installments as follows:

• A. A member may elect by a writing filed with the Board to have all or part of the death benefit paid in monthly (or bi-

weekly, if the City elects to pay in biweekly installments) installments, fixed in number or amount and not involving life contingency, subject to such rules as the Board may adopt. Regular interest shall be credited on the unpaid balance of benefits payable.

• B. If a member dies without having made an election under subsection A. of this Section, his or her beneficiary, after the death of the member and prior to the payment to him or her of the death benefit, or any part thereof, may elect by writing filed with the Board to have the death benefit paid to him or her in the manner provided in subsection A. of this Section.

• C. When an election has been made to have the death benefit paid in accordance with subsection A. of this Section, the first of such installments shall be paid on the first day of the month or two-week period next following the date when the death benefit would otherwise be payable, and one (1) of such installments shall be paid on the first day of each month or two-week period thereafter. Such monthly or biweekly installment shall be the actuarial equivalent of the portion of the death benefit to be paid in installments on the date that such death benefit would otherwise be payable.

• (Prior code § 2904.1510; Ords. 29120, 29904.)

• A. Except as otherwise provided in this Chapter, any survivorship allowance which is payable under the provisions of this Chapter to any surviving child or children shall be paid to such parent or parents of such child or children as have custody of such child or children, for the benefit of such child or children, or if a guardian or guardians have been appointed for such child or children, and the Board shall

T3:235

SAN JOSÉ CODE

§ 3.28.1520

have received notice thereof, to the guardian or guardians of such child or children, for the benefit of such child or children.

• B. Notwithstanding the above, however, the Board, in its discretion, may at any time or from time to time pay said allowances to any other person or persons, for the benefit of such child or children, or directly to the child or children, if it finds that such will be for the best interest of the children. In addition, the Board may, if it has reason to believe that such allowances are not being used for the benefit of the child or children entitled thereto, suspend such payments, or any of them, until such time as it receives assurance, satisfactory to the Board, that such payments will be used for the benefit of the children entitled thereto. No person shall have any claim against the Board or any member thereof because of or by reason of the Board's suspension of any payments or by reason of the Board's changing the person or persons to whom such payments are made.

(Prior code § 2904.1511; Ords. 22429, 29120, 29904.)

• A. A member of this system or any person who has retired from this system, other than a tier 2 member, may designate, on a beneficiary designation form approved by the board, that any survivorship allowance which is payable under the provisions of this chapter to any surviving child or children of the member or retired person shall be paid to any of the following:

  1. A named custodian for such child under the California Uniform Transfers to Minors Act.

  2. A trustee of a trust created for the benefit of such child or children under such member's or retired person's will.

  3. A trustee of an inter vivos trust created for the benefit of such child or children.

• B. Payment to Custodian. Such survivorship allowance shall be paid to a custodian under the

California Uniform Transfers to Minors Act named in a beneficiary designation form if all of the following conditions are met:

1. The board is provided with proof to the board's satisfaction that such person is in fact the custodian named in the beneficiary designation form.

2. The board is provided with written acknowledgement of receipt of payment as custodian, as provided by California Probate Code Section 3908, on such form as the board may provide, together with execution of such additional waivers, indemnification, or other documents as the board may require.

• C. Payment to Trustee of Testamentary Trust. Such survivorship allowance shall be paid to a trustee named in a member's or retired person's will if all of the following conditions are met:

  1. Such member's or retired person's beneficiary designation form specifically designates a trust created under such person's will as beneficiary.

  2. Such member's or retired person's will contains provisions specifically creating such trust or trusts for the benefit of such member's or retired person's surviving child or children.

  3. The trustee is named in such member's or retired person's will.

  4. The board is provided with a filed, endorsed, and certified copy of a court order which determines the validity of such trust or trusts and orders the establishment of such trust or trusts.

• D. Payment to Trustee of Inter Vivos Trust. Such survivorship allowance shall be paid to the trustee of an inter vivos trust if all of the following conditions are met:

  1. Such trust is clearly identified to the board's satisfaction on such member's or retired person's beneficiary designation form on file with the board.

T3:236

PERSONNEL

§ 3.28.1560

2. Such trust contains provisions specifically creating a trust or trusts for the benefit of such member's or retired person's surviving child or children.

3. The board is provided with a filed, endorsed, and certified copy of a court order pursuant to California Probate Code Section 1138.1 or similar statute authorizing and approving payment of such benefit to such trust.

• E. Unless and until the conditions of either B., C., or D. of this Section 3.28.1525 are met, the payment of such survivorship allowance shall be made in accordance with Section 3.28.1520 of this chapter.

(Ords. 22429, 29120.)

For purposes of this part, a posthumously born child shall be deemed to be a surviving child in existence at the time of the member's death, but shall not be entitled to any allowance hereunder for any time prior to its actual birth. (Prior code § 2904.1512.)

Part 12

DEATH AFTER RETIREMENT

Sections:

• 3.28.1580 Allowance to surviving spouse if eligible under Section 3.28.1570.

• 3.28.1590 Allowance to surviving child or children, if eligible under Section 3.28.1570, where there is no surviving spouse or surviving domestic partner.

• 3.28.1600 Allowance to surviving child or children, if eligible under Section 3.28.1570, where surviving spouse or surviving domestic partner dies after receiving an allowance.

Except as may be otherwise specifically provided by other provisions of this Chapter 3.28, the provisions of this Part 12 shall apply only when a member of this System dies after he or she has been retired pursuant to the provisions of this System and while he or she is so retired.

(Prior code § 2904.1550; Ords. 29120, 29904.)

As used in this Part 12:

• A. "Death after retirement" means death of a former member of this system after he or she has been retired under this system and while he or she is on such retirement.

• B. "Surviving child" and "surviving children" mean such child or children of a deceased member that meet and satisfy all of the following conditions and requirements:

  1. The child survives the member's death; and

  2. The child is neither married nor a member of a registered domestic partnership at the time of the member's death; and

  3. The child is under the age of eighteen years at the time of the member's death; and

  4. If the child is an adopted child of the member, the adoption was completed pursuant to law prior to the member's death.

A child who has been married, but whose marriage has been dissolved by divorce or death, shall not be deemed to be a surviving child as said term is used in this Part 12. A child who has been a member of a registered domestic partnership, but

T3:237

SAN JOSÉ CODE

§ 3.28.1560

whose partnership has been terminated through a proceeding for dissolution or by filing a notice of termination of domestic partnership or by death, shall not be deemed to be a surviving child as said term is used in this Part 12.

• C. "Surviving spouse" means the person to whom a person retired under the provisions of this system was married both at the time of such retired person's retirement and at the time of such retired person's death who survives such retired person's death, and none other.

• D. "Surviving domestic partner" means the person:

  1. With whom a person retired under the provisions of this system had established a registered domestic partnership by filing a declaration of domestic partnership with the secretary of state pursuant to Division 2.5 of the California Family Code or had formed a legal union other than a marriage in a jurisdiction other than California and such union is recognized as a domestic partnership pursuant to California Family Code Section 299.2; and

  2. Was in the domestic partnership with the retired person both at the time of such retired person's retirement and at the time of such retired person's death; and

  3. Who survives the retired person's death.

(Prior code §§ 2904.1551 - 2904.1553; Ords. 23806, 27521.)

The benefits hereinafter specified in Sections 3.28.1580, 3.28.1590 and 3.28.1600 of this part shall be payable to the person specified in said sections in each of the following situations, and none other:

• A. Upon the death after retirement of a former member who at the time of retire-

ment was entitled to credit for five or more years of federated city service rendered after June 30, 1975, while he or she was a member of this system;

• B. Upon the death after retirement of a former member who was a former member of the Chapter 3.24 retirement system who became a member of this system pursuant to the provisions of Section 3.28.400 and who, in addition, had five hundred dollars or more of accumulated contributions in the retirement fund at the time of retirement under this system;

• C. Upon the death after retirement of a former member who became a member of this system pursuant to a transfer of communication functions from the county of Santa Clara to the City of San José and who was granted a retirement pursuant to Section 3.28.1110A.3. of this chapter.

• (Prior code § 2904.1554; Ords. 21371, 22314, 23485.)

Subject to other provisions of this Chapter 3.28, in any of the situations specified in Section 3.28.1570, the surviving spouse or the surviving domestic partner, if any, of such deceased person shall thereafter be entitled to receive and shall be paid from the retirement fund, until the surviving spouse's or surviving domestic partner's death, an annual allowance equal to fifty percent (50%) of the amount of retirement allowance to which said deceased former member was theretofore entitled to receive under this System.

(Prior code § 2904.1555; Ords. 27521, 29120, 29904.)

Subject to other provisions of this Chapter 3.28, in any of the situations specified in Section 3.28.1570, if at the time of such former member's death after retirement there is no surviving spouse

T3:238

PERSONNEL

§ 3.28.1600

and no surviving domestic partner, but there is or are a surviving child or surviving children, the following allowances shall be paid to such surviving child or children:

• A. If there is only one (1) eligible surviving child, such child shall be entitled to receive and shall be paid from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to twenty-five percent (25%) of the allowance to which a surviving spouse or surviving domestic partner would have been entitled under the provisions of Section 3.28.1570 if there had been a surviving spouse or surviving domestic partner.

• B. If there are two (2) or more surviving children, each eligible surviving child thereafter in existence shall be entitled to receive and shall be paid, from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the allowance which would have been payable to a surviving spouse or surviving domestic partner under Section 3.28.1580 if there had been a surviving spouse or surviving domestic partner which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable, subject to the following limitations:

  1. The annual allowance payable to any surviving child under this subsection B. shall never exceed twentyfive percent (25%) of the annual allowance which would have been payable to a surviving spouse or surviving domestic partner under Section 3.28.1580 if there had been a surviving spouse or surviving domestic partner; and

  2. The total allowances payable to all surviving children under this subsection B. shall never exceed seventyfive percent (75%) of the annual allowance which would have been payable to a surviving spouse or surviving domestic partner under Section 3.28.1580 if there had been a surviving spouse or surviving domestic partner.

• C. This Section 3.28.1590 shall apply to Tier 2 members provided, however, such amount shall not exceed seventy percent (70%) of the Tier 2 member's final compensation.

(Prior code § 2904.1556; Ords. 27521, 29120, 29904.)

Subject to other provisions of this Chapter 3.28, in any of the situations specified in Section 3.28.1570, if at the time of such former member's death after retirement there is a surviving spouse or surviving domestic partner but he or she subsequently dies, any eligible surviving child or children existing at the time of the surviving spouse's or surviving domestic partner's death and surviving thereafter shall be entitled, upon cessation of the surviving spouse's or surviving domestic partner's allowance, to receive the following:

• A. If only one (1) eligible surviving child exists after the death of the surviving spouse or surviving domestic partner and cessation of his or her allowance, such child shall be entitled to receive and shall be paid from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to twenty-five percent (25%) of the annual allowance to which the surviving spouse or surviving domestic partner was theretofore entitled under Section 3.28.1580.

T3:239

SAN JOSÉ CODE

§ 3.28.1600

• B. If two (2) or more eligible surviving children exist after the death of the surviving spouse or surviving domestic partner and cessation of his or her allowance, each surviving child thereafter in existence shall be entitled to receive and shall be paid from the retirement fund, until he or she attains the age of eighteen (18) years, marries, establishes a registered domestic partnership, or dies, whichever is earlier, an annual allowance equal to that proportion of the annual allowance which the surviving spouse or surviving domestic partner theretofore was entitled to receive under Section 3.28.1570, which one bears to the total number of eligible surviving children in existence at the time any such allowance becomes payable, subject to the following limitations:

  1. The annual allowance payable to any surviving child shall never exceed twenty-five percent (25%) of the annual allowance theretofore paid to the surviving spouse or surviving domestic partner under Section 3.28.1580, and;

  2. The total annual allowance paid to all surviving children shall never exceed seventy-five percent (75%) of the annual allowance theretofore paid to the surviving spouse or surviving domestic partner under Section 3.28.1570.

• C. This Section 3.28.1600 shall apply to Tier 2 members provided, however, such amount shall not exceed seventy percent (70%) of the Tier 2 member's final compensation.

(Prior code § 2904.1557; Ords. 27521, 29120, 29904.)

Except as otherwise provided herein, any survivorship allowance which is payable under the provisions of this Chapter to any surviving child or

children shall be paid to such parent or parents of such child or children as have custody of such child or children for the benefit of such child or children; or, if a guardian or guardians have been appointed for such child or children and the Board shall have received notice thereof, to the guardian or guardians of such child or children for the benefit of such child or children. Notwithstanding the above, however, the Board, in its discretion, may at any time or from time to time pay said allowances to any other person or persons, for the benefit of such child or children, or directly to the child or children, if it finds that such will be for the best interests of the children. In addition, the Board may, if it has reason to believe that such allowances are not being used for the benefit of the child or children entitled thereto, suspend such payments, or any of them, until such time as it receives assurance; satisfactory to the Board, that such payments will be used for the benefit of the children entitled thereto. No person shall have any claim against the Board or any member thereof because of or by reason of the Board's changing the person or persons to whom such payments are made. This Section 3.28.1610 shall apply to Tier 2 members provided, however, such amount shall not exceed seventy percent (70%) of the Tier 2 member's final compensation. (Prior code § 2904.1559; Ords. 29120, 29904.)

Subject to other provisions of this Chapter 3.28, upon the death after retirement of a former member of this system, there shall be paid to his estate, or to such beneficiary as he may designate by written designation filed with the retirement board, the sum of five hundred dollars. This benefit is additional to such other benefits as may be provided by other provisions of this system. Notwithstanding the foregoing, this Section 3.28.1620 is not applicable to tier 2 members.

(Prior code § 2904.1560; Ord. 29120.)

For purposes of this Part 12, a posthumously born child shall be deemed to be a surviving child in

T3:240

PERSONNEL

§ 3.28.1680

existence at the time of said former member's death, but shall not be entitled to any allowance hereunder for any time prior to its actual birth. (Prior code § 2904.1561.)

Part 13

OPTIONAL SETTLEMENTS

• A. No election made or attempted to be made by any person pursuant to the provisions of this part shall be deemed valid unless the election is in writing and is filed with the retirement board or its secretary on or before, but no later than, the thirtieth day from and after the effective date of such person's retirement.

Sections:

• 3.28.1660 Manner and time of election.

• 3.28.1670 Optional settlement one.

• 3.28.1680 Optional settlement two.

• 3.28.1690 Optional settlement three.

• 3.28.1700 Existence of surviving spouse, surviving domestic partner, or surviving child or children at time of member's or retiree's death.

• 3.28.1710 Designation of beneficiaries.

Subject to the provisions of this chapter, and subject particularly to the provisions of Section 3.28.1700 of this part, a person who is a member of this system or who has retired under this system may elect, in the manner and within the time specified in Section 3.28.1660, to have the actuarial equivalent of any retirement allowance to which such person may become or has become entitled under this system applied in accordance with any one of the optional settlements specified in this part as follows:

• A. To a lesser retirement allowance for himself or herself during such person's life; and

• B. To an allowance to a beneficiary, named by such person, to be paid after such person's death. For tier 2 members, this person has to be a spouse, domestic partner or child(ren).

(Prior code § 2904.1600; Ords. 23736, 29120.)

• B. Any election made pursuant to the provisions of this part may be amended or revoked by the person who made it, provided such amendment or revocation is in writing and is filed with the retirement board or its secretary on or before, but no later than, the thirtieth day from and after the effective date of such person's retirement. If an election has been revoked, a new one may be made in the manner and time specified in subsection A. of this section.

• C. Any election made pursuant to the provisions of this part that is not amended or revoked on or before the thirtieth day from and after the effective date of such person's retirement shall be irrevocable and benefits shall be paid in accordance with such election subject only to the provisions of this chapter.

(Prior code § 2904.1601; Ord. 23736.)

Optional settlement one consists of the right to have a lesser retirement allowance paid to the retiree until the retiree's death, and thereafter, subject to the provisions of Section 3.28.1700, to have one hundred percent of the retiree's modified retirement allowance paid to the retiree's designated beneficiary for the life of the beneficiary. (Prior code § 2904.1602; Ord. 23736.)

Optional settlement two consists of the right to have a lesser retirement allowance paid to the retiree until the retiree's death, and thereafter, subject to the provisions of Section 3.28.1700, to have

T3:241

SAN JOSÉ CODE

§ 3.28.1680

one-half of the retiree's modified retirement allowance paid to the retiree's designated beneficiary for the life of the beneficiary. (Prior code § 2904.1603; Ord. 23736.)

• A. Optional settlement three consists of the right to have a lesser retirement allowance paid to the retiree until the retiree's death, and thereafter, subject to the provisions of Section 3.28.1700 and Subsection B. of this section, to have such percentage of the modified retirement allowance as the retiree may select, subject to approval of the retirement board, paid to the retiree's designated beneficiary for the life of the beneficiary. For tier 2 members, optional settlement three is the right to have a lesser retirement allowance paid to the retiree until the retiree's death, and thereafter, subject of the provisions of Section 3.28.1700, to have seventy-five percent of the retiree's modified retirement allowance paid to the retiree's designated beneficiary for the life of the beneficiary.

• B. In no case shall the actuarial equivalent of benefits payable to a beneficiary under this optional settlement three exceed the actuarial equivalent of the benefits payable to the same beneficiary if optional settlement one had been selected.

• C. If, at the time an election for an optional settlement may be made pursuant to Section 3.28.1660, there exists a spouse, domestic partner registered under Division 2.5 of the California Family Code, or child of the person making the election who would be entitled to benefits under Part 11 or 12 of this chapter upon the death of said person, then this optional settlement three shall not be available to said person and no election of this optional settlement three shall become effective.

• (Prior code § 2904.1604; Ords. 23736, 27521, 29120.)

• A. If a member or retiree has elected an optional settlement as set forth in Section 3.28.1670, 3.28.1680 or 3.28.1690 and has named a person other than the member's or retiree's surviving spouse or surviving domestic partner, and at the time of the member's or retiree's death there exists a surviving spouse, a surviving domestic partner or surviving child or children, then:

  1. No benefits shall be paid to the designated beneficiary under the elected optional settlement; and

  2. The benefits provided under Part 11, 12 or 14 of this Chapter, whichever is applicable, shall be paid to such surviving spouse, surviving domestic partner or surviving child or children.

• B. If at the time of the member's or retiree's death a beneficiary other than the member's or retiree's surviving spouse or surviving domestic partner should become entitled to any benefit under any optional settlement specified in Section 3.28.1670, 3.28.1680 or 3.28.1690, such benefit shall cease and terminate if and when a child or children of the member or retiree, born after the member's or retiree's death, becomes entitled to any benefits under the provisions of Part 11 or 12 of this Chapter.

• C. Special Provisions for Optional Settlements. If a member or retiree has elected an optional settlement as set forth in Section 3.28.1670 or Section 3.28.1680, and has named the member's or retiree's surviving spouse or surviving domestic partner as the designated beneficiary, then upon the member's or retiree's death:

  1. The benefits payable to the designated beneficiary under such optional settlement shall be paid to such surviving spouse or surviving domestic partner for the life of the surviving spouse or surviving domestic partner. Upon the death of

T3:242

PERSONNEL

§ 3.28.1710

such surviving spouse or surviving domestic partner, the benefits payable under such optional settlement shall cease. If any surviving child or children exist at the time of the surviving spouse's or surviving domestic partner's death, such child or children shall be paid a surviving child's or surviving children's allowance under the provisions of Part 11, 12 or 14 of this Chapter, whichever is applicable, as though no optional settlement had been elected.

2. If at the retiree's death there is no surviving spouse and no surviving domestic partner but there is or are a surviving child or children, then the benefit that would have been paid to the surviving spouse or surviving domestic partner under subsection C.1. above shall not be paid and a surviving child's or surviving children's allowance shall be paid under the provisions of Part 11, 12 or 14 of this Chapter, whichever is applicable, as though no optional settlement had been elected.

• D. For the purposes of this Part:

  1. "Surviving spouse" means the person defined as a surviving spouse in Section 3.28.1460 or Section 3.28.1560, whichever section is applicable under the circumstances.

2. "Surviving domestic partner" means the person defined as a surviving domestic partner in Section 3.28.1460 or Section 3.28.1560, whichever section is applicable under the circumstances.

   3. "Surviving child" and "surviving children" mean the person or persons defined as a surviving child or surviving children in Section 3.28.1460, Section 3.28.1560 or Section 3.28.1750, whichever section is applicable under the circumstances.

   4. A posthumously born child shall be deemed to be a surviving child in exis-

tence at the time of the member's or retiree's death, and shall be entitled to benefits under this Part as provided for other surviving children.

(Prior code § 2904.1605; Ords. 23736, 27521, 29120, 29904.)

• A. The person electing any of the optional settlements specified in Section 3.28.1670, 3.28.1680 and 3.28.1690 shall designate in writing the beneficiary who shall be entitled to receive benefits under such optional settlement. The beneficiary so designated must be a natural person; it cannot be a corporation, nor can it be a class of natural or other persons.

• B. If the person electing any of the optional settlements specified in Section 3.28.1670 and 3.28.1680 is married at the time of such election, is a domestic partner in a domestic partnership registered pursuant to Division 2.5 of the California Family Code or in a legal union other than a marriage that is recognized as a domestic partnership pursuant to California Family Code Section 299.2, is retired at the time of such election and is married to the spouse to whom the person was married at the time of such person's retirement or is retired at the time of such election and is a partner in a domestic partnership that was registered pursuant to Division 2.5 of the California Family Code or in a legal union other than a marriage that is recognized as a domestic partnership pursuant to California Family Code Section 299.2 at the time of such person's retirement, then the person must designate his or her spouse as the beneficiary entitled to receive benefits under the optional settlement. Under these circumstances, no person other than said spouse or domestic partner shall be eligible to be a designated beneficiary and no election naming any other person as a designated beneficiary shall become effective.

• C. No person shall be entitled to any benefit as a named beneficiary in any of said optional set-

T3:243

SAN JOSÉ CODE

§ 3.28.1710

tlements unless he or she first satisfies the retirement board, and the board determines, that he or she is in fact the beneficiary designated to receive the benefit and is otherwise entitled to receive the benefit. Any such benefit being paid to any such beneficiary, or claimed beneficiary, is subject to termination or modification at any time by the retirement board if the board should subsequently find that such person was not entitled to or is no longer entitled to such benefit or any part thereof. Any payment of any benefit made in good faith from this system in reliance upon any abovementioned determination of the board shall constitute a complete discharge of this system's obligation respecting such benefit, to the extent of such payment, notwithstanding that it may not have discovered a beneficiary otherwise entitled to such benefit.

• D. For tier 2 members, the beneficiary must be a spouse, domestic partner or child(ren).

• (Prior code § 2904.1616; Ords. 23736, 27521, 29120.)

For the purposes of this Part, actuarial equivalences shall mean a benefit of equal value when computed on the basis of the interest rate, inflation rate and annuity tables and other relevant assumptions on the most recent actuarial valuation and adopted by resolution of the Board upon the advice of the Board's actuary, provided that such interest rate, inflation rate, and annuity tables and other relevant assumptions comport with reasonable standards applicable to government plans. For purposes of this Section, the most recent actuarial valuation shall be the valuation performed as of June 30th in the calendar year prior to the effective date of the actuarial equivalence calculation. (Ords. 23736, 27838, 29904.)

Part 14

SURVIVING CHILD'S SCHOOL ALLOWANCE

Sections:

• 3.28.1790 Duration of entitlement.

• 3.28.1800 Child's school allowance - Amount and conditions.

As used in this Part 14:

• A. "Educational institution" is a school (including a technical, trade or vocational school), a junior college, college or university, which meets any of the conditions described in the following subsections of this section:

  1. It is operated or directly supported by the United States, or by any state of the United States, or by any local government or political subdivision thereof; or

  2. It is approved by a state or accredited by a state-recognized or nationally recognized accrediting agency or body. A nationally recognized accrediting agency or body is an agency or body that has been determined to be such by the United States Commissioner of Education. A state-recognized accrediting agency or body is an agency or body designated or recognized by a state as a proper authority for accrediting schools, colleges or universities as meeting educational standards. Approval by a state includes approval of a school, college or university as an educational institution, or of one or more of the school's, college's or university's courses by a state agency or subdivision of the state. This approval may be indirect, as for example, if attendance at the school satisfies the

T3:244

PERSONNEL

§ 3.28.1750

state's compulsory education laws, or if the school has tax exemption as a school, or if the school receives financial aid, loans or scholarship allowances; or

3. In the case of a non-accredited school, college or university, its credits are accepted, on transfer, by not less than three institutions which have been accredited by a staterecognized or nationally recognized accrediting agency or body, for credit on the same basis as if transferred from an institution so accredited. Acceptance of credits on transfer includes, in addition to acceptance of laterally transferred credits between similar institutions, acceptance of credits completed in an institution at a lower grade level for entrance into an institution at a higher grade level.

• B. "Eligible surviving child" means a surviving child as defined in subsection E of this section, who meets and satisfies all of the following conditions:

  1. Such surviving child must have attained the age of eighteen years; and

  2. Such surviving child must not have attained the age of twenty-two years; and

  3. Such surviving child must be neither married nor a member of a registered domestic partnership; and

  4. Such surviving child must be a "fulltime student" as such term is defined in subsection D of this section.

• C. "Full-Time Attendance" Defined. Ordinarily, a student is in "full-time attendance" at an educational institution if he or she is enrolled in a noncorrespondence course and is carrying a subject load which is considered full-time for day students

under the institution's standards and practices. However, a student will not be considered in "full-time attendance":

1. If he or she is enrolled in a junior college, college or university in a course of study of less than thirteen school weeks' duration; or

2. If he or she is enrolled in any other educational institution and either the course of study is less than thirteen school weeks' duration or his or her scheduled attendance is at the rate of less than twenty hours a week. A student whose full-time attendance begins or ends in a month is in full-time attendance for that month.

• D. "Full-time student" means a student who is in "full-time attendance," as such term is defined in subsection C of this section, as a student at an "educational institution," as such term is defined in subsection A of this section, except that no student shall be deemed to be a full-time student if he or she is paid by his or her employer for attending an educational institution at the employer's request or pursuant to a requirement of the employer.

• E. "Surviving child" means a child who, if he or she were under the age of eighteen years, would be deemed to be a "surviving child" as such term is defined in Parts 11 and 12 of this chapter, and as such would be entitled, if he or she were under eighteen years of age, to a surviving child's allowance under and pursuant to the provisions of Parts 11 or 12 of this chapter. "Surviving child" does not include any child who, even if he or she were under eighteen years of age, would not be entitled to a surviving child's allowance under Parts 11 or 12 because of the existence of a "surviving spouse" or "surviving domestic partner" entitled to an allow-

T3:245

SAN JOSÉ CODE

§ 3.28.1750

ance under Parts 11 or 12 or for any other reason, although such child might subsequently become a "surviving child," as defined in this section, if and when the surviving spouse or the surviving domestic partner no longer is entitled to an allowance under Parts 11 or 12 of this chapter.

(Prior code §§ 2904.1650 - 2904.1654, 2904.1657; Ords. 23806, 27521.)

The retirement board is hereby authorized and empowered to adopt, administer and enforce all such rules and regulations, not inconsistent with the provisions of this part, as it may deem reasonably necessary for the proper administration, management, implementation, carrying out, enforcement or control of the provisions of this part or of the program provided for by the provisions of this part. In addition, retirement board is hereby authorized and empowered to make inquiries and investigations, hold hearings, and make administrative or factual findings and determinations where it finds such to be reasonably necessary for the proper administration, management, implementation, carrying out, enforcement or control of the provisions of this part or of the program provided for by the provisions of this part. Any and all such findings and determinations of said retirement board shall be deemed final and conclusive. (Prior code § 2904.1660.)

• A. An individual will be deemed a full-time student during any period of nonattendance (including part-time attendance) at an educational institution if the period is four consecutive calendar months or less, and the individual:

  1. Establishes that he or she intends to be in full-time attendance at an educational institution in the month immediately following such period; or

  2. Is in full-time attendance at an educational institution in the month immediately following such period.

• B. However, an individual will not be deemed a full-time student during any period of nonattendance if the nonattendance is due to expulsion or suspension notwithstanding such individual intends to, or does in fact, resume fulltime attendance within four calendar months after the beginning of such period of nonattendance.

(Prior code § 2904.1655.)

An eligible surviving child is entitled to a surviving child's school allowance under the provisions of this part for each calendar month, after July 1, 1975, in which all the conditions of entitlement described in the preceding provisions of this part are met. The last month for which such child is entitled to a surviving child's school allowance under the provisions of this part is the month before the month in which any of the following events first occurs:

• A. The child dies; or

• B. The child marries; or

• C. The child becomes a member of a registered domestic partnership; or

• D. The child attains the age of twenty-two years; or

• E. The first month during no part of which the child is a full-time student.

• (Prior code § 2904.1658; Ord. 27521.)

An eligible surviving child shall be entitled to receive, for each calendar month (or for each twoweek period, if the city elects to pay allowances biweekly) after July 1, 1975, in which all of the conditions of entitlement described in the provisions of this Part 14 are met by him or her, and in no event for any period longer than the duration of his or her entitlement, a child's school allowance. The amount of such allowance for each calendar month

T3:246

PERSONNEL

§ 3.28.1860

(or two-week period, if allowances are paid biweekly) for which said child is eligible for the same shall be the same as the amount, if any, which would be payable to him or her for each such month (or two-week period, if allowances are paid biweekly) as a surviving child's allowance under and by virtue of the provisions of Parts 11 or 12 and other relevant provisions of this Chapter 3.28 if he or she were under the age of eighteen years. Anything in said Parts 11 or 12 or elsewhere in this chapter to the contrary notwithstanding, for the purpose of determining and computing the amount of the child's allowance which would be payable to such child under the provisions of Parts 11 or 12 if he or she were under the age of eighteen years, and also for the purpose of determining and computing the amount of the child's allowance payable under the provisions of Parts 11 or 12 to other surviving children of the parent because of whose death said child is entitled to a school allowance, the eligible surviving child claiming the school allowance shall be deemed and considered to be one of the surviving children entitled to a child's allowance under the provisions of Parts 11 or 12. Notwithstanding any other provision of this Part 14, no benefits under Part 14 are available to tier 2 members. (Prior code § 2904.1659; Ord. 29120.)

Part 15

OPTIONAL MEMBERSHIP FOR CERTAIN MEMBERS OF CHAPTER 3.32 POLICE AND FIRE DEPARTMENT RETIREMENT PLAN

Sections:

• 3.28.1860 Option for membership - Conditions.

• 3.28.1870 Effective membership date.

• 3.28.1880 Nature of membership.

• 3.28.1890 Credit for service.

• 3.28.1900 City's contributions.

• 3.28.1910 Contributions - Cost of living adjustments.

The provisions of this Part 15 shall be applicable only on and after the effective date of this Part 15, and shall then apply only to those persons who, in accordance with this part, are given and exercise an option for membership in the 1975 federated employee's retirement plan established by Chapter 3.28 of this Code.

(Prior code § 2904.1770; Ord. 18793.)

• A. Subject to the conditions, limitations, restrictions and requirements hereinafter set forth in this Part 15, any person who, upon the effective date of the ordinance adopting this Part 15:

  1. Is a member of the police and fire department retirement system created by Ordinance 3254, adopted October 21, 1946, as continued under Chapter 3.32 of the San José Municipal Code established by Ordinance 3732; and also

  2. Is employed by the city in the following position: Typist, shall have and is hereby given an option of being governed by the provisions of this Part 15 and of being entitled to such rights and benefits as are provided for in this Part 15, subject to the conditions, restrictions and requirements mentioned herein and in this Chapter 3.28, in lieu of being governed by the provisions of Chapters 3.32 and 3.36 of this Code and in lieu of being entitled to any of the rights or benefits provided in such Chapters 3.32 and 3.36. Such option is not given to any person who, on the effective date of this Part 15, is on service or disability retirement under and

T3:247

SAN JOSÉ CODE

§ 3.28.1860

pursuant to Chapters 3.32 and 3.36 of this title, except as provided in Section 3.28.1930.

• B. No such person to whom such option is hereinabove given shall be governed by the provisions of this Part 15, nor be entitled to any of the rights or benefits provided for in this Part 15, unless such person exercises the option herein granted, in the manner and within the time specified in this section, and no later.

• C. Each such person who exercises said option within the time and in the manner specified in this section shall, on and after the exercise of such option, be governed by the provisions of this Part 15 and be entitled to the rights and benefits provided for in this part, subject to the above-mentioned conditions, limitations, restrictions and requirements, in lieu of being governed by any other chapter of this title and in lieu of being entitled to any other rights or benefits provided by other provisions of this Chapter 3.28.

• D. Each person given the option specified in this section must, if he desires to exercise said option and in order to exercise the same, file with the secretary of the retirement board a written statement, on a form furnished by said secretary on request, declaring:

  1. That such person elects to exercise said option and become a member of the Chapter 3.28 system subject to the provisions of this Part 15; and

  2. That he elects to receive credit under this system for service for which he was entitled to credit under the Chapter 3.32 police and fire department system of which he is then a member; and

  3. That he agrees to pay into the retirement fund established by this chapter, in the manner and not later than the times specified in this section, an amount of money sufficient to make the accumulated contributions standing to the credit of his individual account in this system (including interest thereon at the regular rate

• then prevailing under the federated system) equal to the amount such accumulated contributions would be if he had been a member of the city's federated city employees systems and federated employees retirement plan in the position to which he had been appointed and because of which he exercises the option to be a member of this system, during the time he was rendering the previous service in the police or fire department for which he seeks to receive credit, and if the contributions payable to the applicable federated system and plans under such circumstances had been deducted from his compensation and paid into the applicable retirement funds pursuant to such applicable systems and plans during all of such times; and

4. That, for the purpose of such payment, such person consents to and authorizes the transfer and payment into the retirement fund established by this chapter, from the retirement fund established under the police and fire department retirement plan for the system of which he is then a member, all accumulated contributions credited to his individual account; and

5. That, for the purpose of paying any balance remaining after crediting the amount determined under paragraph 4. above, such person agrees to pay such balance as follows: within thirty days after filing such declaration and election, or in not more than thirty-six equal monthly installments, or seventy-two equal biweekly installments with interest thereon at the regular rate then currently prevailing under this system, the first payment commencing not more than thirty days after such filing; and

6. That, in the event any benefit becomes due and payable under this system to any person before fill payment is made into

T3:248

PERSONNEL

§ 3.28.1880

• the retirement fund of the total amount of such accumulated contributions, plus interest, as are required under paragraphs 3. and 5. above, such person consents to and authorizes deduction of the balance of such unpaid contributions from such benefits.

• E. No such written declaration and notice of exercise of such option shall be effective for any purpose whatsoever unless it shall have been filed with the secretary of the retirement board on or before, but not later than the thirtieth day immediately following the date on which such secretary has caused to be deposited in the United States Mail, a notice of the right to exercise such option, addressed to such person at his last place of residence as shown on city's records. Forthwith after the effective date of this part, the secretary of the retirement board shall give notice of such right and option.

(Prior code § 2904.1771; Ord. 18793.)

Upon filing the written declaration and exercise of option described in Section 3.28.1860 with the secretary in the manner and within the time specified in Section 3.28.1860, the person making such election shall be deemed to have exercised the option granted under this Part 15; and on the day immediately succeeding the date of such filing, he shall cease to be a member of the police and fire department retirement system created under Chapter 3.32 and shall thereupon be a member of the Chapter 3.28 system subject to the provisions of this Part 15. Upon the effective date of such membership in this Chapter 3.28 system, the person making such election and all other persons who, by reason of such person's membership in the Chapter 3.32 system, may have any right or interest in any retirement system in Title 3 of this Code other than as provided in this Part 15, shall cease to have any entitlement to any right, benefit, allowance or moneys thereunder, except as may be specifically provided in Section 3.28.1880.

(Prior code § 2904.1772; Ord. 18793.)

• A. A person who has exercised in the time and manner provided in this Part 15 the option granted herein shall be entitled to all rights and benefits of membership in the Chapter 3.28 system which are provided in this section, and is in this part referred to as a "Part 15 member."

• B. Upon the effective date of such option, the Part 15 member who exercises such option shall be deemed to be in and thereafter to be rendering "federated city service" within the definition of Section 3.28.030.10 of this chapter.

• C. A Part 15 member shall be deemed, solely for the purpose of this part, to determine qualification and the extent of rights and benefits, to be "a person who was a member of the Chapter 3.24 system who became a member of the Chapter 3.28 retirement system pursuant to the provisions of Section 3.28.400" of Part 4 of Chapter 3.28, and shall have all the rights, duties, benefits and privileges applicable to such persons by reason of Chapter 3.28 of Title 3 of this Code. Whenever the clause so enquoted above or words of similar import are used in Chapter 3.28, such clause shall for the purpose of this Part 15 mean, include and refer to such Part 15 member.

• D. For the purpose of this Part 15, and for the sole purpose of according to a Part 15 member the rights and benefits granted in Sections 3.28.1160 and 3.28.1320 to former members of this Chapter 3.24 retirement system who became members pursuant to Section 3.28.400, such Part 15 member shall be deemed to have rendered federated city service for which he was entitled credit as a member of the Chapter 3.24 retirement system to the extent that, during such time, such service was rendered as a member of the police and fire department retirement system, and such Part 15 member shall be deemed to have been a member of the Chapter 3.24 system during such service period, for the purpose of qualifying for service

T3:249

SAN JOSÉ CODE

§ 3.28.1880

and disability retirement and the optional settlement provisions therein mentioned, and the amount of such benefits and allowances therein mentioned.

the amount required to be contributed by the city under this section, the balance shall be paid from other available city funds.

(Prior code § 2904.1775; Ord. 18793.)

(Prior code § 2904.1773; Ord. 18793.)

Notwithstanding any provision of Sections 3.28.610 and 3.28.620 to the contrary, a Part 15 member shall be entitled to credit in this system, as "federated city service," for all service rendered by such Part 15 member for which he had been entitled to credit to determine benefits under the Chapter 3.32 police and fire department retirement system of which he was formerly a member. (Prior code § 2904.1774; Ord. 18793.)

If a person pursuant to Section 3.28.1850 elects to and becomes entitled to receive credit under this system for service formerly credited to him under the police and fire department retirement plan, the city shall contribute to the retirement fund created under this chapter an amount equal to the contributions which the city would have been required to make to the retirement funds federated systems and plans concurrently with the contributions required of the person making such election had such person been a member of such retirement systems and plans during the periods of city service instead of said Chapter 3.32 police and fire department retirement system; such contributions shall include interest on such contributions at the regular rate then prevailing under the applicable federated systems and plans. Contributions required to be made by the city pursuant to this section shall be made by the transfer and payment, into the retirement fund established by this chapter from the police and fire department fund, of all contributions made by the city into such police and fire department retirement fund for or because of such person's membership in the Chapter 3.32 police and fire department plan. If the amount of moneys so transferred is less than

The contributions respectively required of a Part 15 member and the city under Sections 3.28.1860 and 3.28.1900 shall include such contributions, plus interest at the applicable prevailing rate, as are respectively required of such member and the city to provide the funding of cost of living increases and decreases under Chapter 3.44 of this title.

(Prior code § 2904.1776; Ord. 18793.)

• A. A Part 15 member's failure to make any lumpsum or installment payment of contributions elected and required under Sections 3.28.1860 and 3.28.1910 within thirty days after any such payment is due shall terminate a Part 15 member's membership in the Chapter 3.28 system and all rights, benefits appertaining to such system, unless prior to such nonpayment any person has become entitled to any benefit under this system by reason of such Part 15 member shall thereupon be restored to membership in and shall be entitled only to all of the benefits of the Chapter 3.32 police and fire department system of which such person was formerly a member as if such member had continuously been and remained a member thereof, and not of the Chapter 3.28 system pursuant to this Part 15, further, upon such restoration to former membership, there shall be no further option to become a member of the Chapter 3.28 system pursuant to this Part 15.

• B. Upon restoration of membership in such Chapter 3.32 system pursuant to this section, the affected member and the city shall each respectively make such contributions and transfer

T3:250

PERSONNEL

§ 3.28.1930

such funds to the Chapter 3.32 retirement fund of the system to which the member is restored, as have been credited to their respective accounts in this system's retirement fund to the extent necessary, as though the former Part 15 member's membership in such Chapter 3.32 system had remained continuous and uninterrupted by any Part 15 membership in this system. The balance of any contributions required of the member and the city for such purposes shall be made available from any available source, including deductions from such member's further compensation where required.

(Prior code § 2907.1777; Ord. 18793.)

• A. Each person who, within six months of the effective date of the ordinance adopting this Part 15, was:

  1. A member of the police and fire department retirement system established by Chapter 3.32 of this title; and

  2. Employed by the city in the position of typist; and

  3. Entitled to or received a disability retirement from such position pursuant to such Chapter 3.32 prior to the effective date of this part shall have the option of becoming a Part 15 member, if such person's disability should cease and such person should be restored to active service pursuant to the retirement plan established by Chapter 3.32 of this Code in the position such person held at the time of retirement for disability.

• B. Such option shall be exercised in the manner provided in Section 3.28.1860, as follows:

  1. Not later than the thirtieth day immediately following the date on which the secretary of the retirement board has de-

posited in the United States Mail, after such restoration to active duty, a notice of the right to exercise such option; or

2. If earlier, not later than the ninetieth day immediately following the date of such restoration. Upon filing such statement in the manner and time hereinabove specified, such person shall be deemed to have become a Part 15 member in the same manner and to the same extent as provided in Section 3.28.1860. Anything elsewhere to the contrary notwithstanding, no such person shall become a member of the Chapter 3.28 plan unless the option herein given is exercised as specified in this Part 15.

(Prior code § 2904.1778; Ord. 18793.)

Part 16

MEDICAL BENEFITS FOR CERTAIN RETIREES AND SURVIVORS

Sections:

• 3.28.1955 Medical benefits for retired tier 2 members effective on or after September 27, 2013 and participants in the defined contribution plan under Chapter 3.49 and their survivors.

• 3.28.1960 Medical benefits for survivors of members.

• 3.28.1965 "In lieu" premium credit option.

• 3.28.1970 Requirements for participation in medical insurance plan.

• 3.28.1980 Allocation of costs of providing medical insurance coverage to members or survivors.

• 3.28.1990 Eligible medical plan.

• 3.28.1995 Limitation on funding provided to retirement fund for medical benefits.

T3:251

SAN JOSÉ CODE

§ 3.28.1950

Subject to the provisions of this Chapter, a member, other than a new employee or a member described in Section 3.28.1950.E or Section 3.28.1955.B., may be entitled to medical insurance coverage in an eligible medical plan as specified in Section 3.28.1970 if the member satisfies the requirements of subsection A., subsection B., or subsection C below. Members who would otherwise be eligible for coverage under this Part 16 shall be provided a one-time irrevocable election to instead be covered under Chapter 3.58, in accordance with the process described in Chapter 3.58. Coverage under Chapter 3.58 shall not become effective until receipt of IRS approval to transfer member contributions previously contributed under Part 16 and Part 17 to the funding vehicle established under Chapter 3.58. The contributions to the Plan by members and the City shall be as determined under Section 3.28.381.

• A. The member is retired for service or disability under the provisions of this Chapter and at the time of such retirement meets any of the following requirements:

  1. Is entitled to credit for fifteen (15) or more years of service; or

  2. Receives an allowance equal to at least thirty-seven and one-half percent (37.5%) of the final compensation of such member; or

  3. Would be receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of the final compensation of such member if the workers' compensation offset set forth in Section 3.28.1040 did not apply.

• B. The member is entitled to credit for twelve (12) or more years of service as of May 14, 1993, and the member is retired for service on or after May 14, 1993, but prior to June 20, 1993.

• C. The member voluntarily resigns from City service and satisfies all of the following requirements:

  1. The effective date of the voluntary resignation is on or after May 14, 1993, but prior to June 20, 1993; and

  2. As of the effective date of the resignation, the member is entitled to credit for at least twelve (12) years of service; and

  3. The member elects to continue membership in this System by allowing all of his or her accumulated contributions to remain in the retirement fund; and

  4. The member is not reinstated to City service prior to the member's retirement; and

  5. The member retires for service under the provisions of Section 3.28.1110.

• D. Any member who meets the requirements of subsection A, subsection B or subsection C of this Section 3.28.1950 and is thereby eligible for coverage but instead elects to participate in the "in lieu" premium credit option described in Section 3.28.1965, and later elects to again be covered under the City's medical coverage during the annual open enrollment period or upon qualifying events upon the occurrence of an event identified by the medical plans as providing such individuals with an opportunity to elect to be covered under the City's medical coverage shall be required to pay the full member portion of the cost of coverage less any available premium in lieu credits that the member may have accrued and which remain unused under this Part 16.

nt period or upon qualifying events upon the occurrence of an event identified by the medical plans as providing such individuals with an opportunity to elect to be covered under the City's medical coverage shall be required to pay the full member portion of the cost of coverage less any available premium in lieu credits that the member may have accrued and which remain unused under this Part 16.

• E. Except as provided in Section 3.28.1950.F. below, new employees shall not be eligible for benefits under this Section 3.28.1950.

T3:252

PERSONNEL

§ 3.28.1960

• F. Tier 2 members and employees in Unit 99 who participate in the City of San José defined contribution plan under Chapter 3.49 are not eligible for benefits under this Section 3.28.1950. Instead, insurance coverage to a Tier 2 member on and after September 27, 2013, or to an employee who is a participant in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 shall be determined only as provided under Section 3.28.1955. Notwithstanding Section 3.28.1950.E, a new employee hired before October 1, 2013 who is represented by the Operating Engineers, Local 3 or the Association of Building, Mechanical and Electrical Inspectors shall be eligible for benefits under this Section 3.28.1950 if he or she meets the requirements of subsection 3.28.1950.A.

• (Ords. 21763, 22245, 24347, 29184, 29283, 29904, 30044.)

members effective on or after September 27, 2013 and participants in the defined contribution plan under Chapter 3.49 and their survivors.

• A. Effective September 27, 2013, new employees and their respective survivors shall not be entitled to medical insurance coverage under this Section 3.28.1955, except to the extent specifically provided under subsection 3.28.1955.B. below. If insurance coverage under Part 16 for any Tier 2 member is terminated by the City Manager prior to the establishment of benefits under Chapter 3.58, affected Tier 2 members shall not be entitled to any benefits or make any additional contributions under this Part 16 once participation is terminated and affected Tier 2 members shall not be entitled to any retiree medical benefits nor make medical benefit contributions during the gap period between termination of benefits under Part 16 and establishment of the VEBA under Chapter 3.58.

• B. Tier 2 Members Hired On or After September 27, 2013. Other than those Tier 2 members that meet the requirements described in Section 3.28.381.B. or Section 3.28.381.C.1., Tier 2 members hired on or after September 27, 2013, and their survivors, shall not be entitled to medical insurance coverage under this Part 16. Such members may be eligible for medical insurance coverage under Chapter 3.58. In order for a Tier 2 member described in Section 3.28.381.B. or Section 3.28.381.C.1. or such Tier 2 member's eligible survivor to receive medical insurance coverage under this Part 16, such Tier 2 member and such Tier 2 member's eligible survivor must meet the requirements specified in Section 3.28.1970.

• C. Defined Contribution Plan Participants and Their Survivors. Employees who are participants in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49, and their survivors shall not be entitled to medical insurance coverage under this Part 16.

(Ords. 29283, 29904, 30017.)

Subject to the provisions of this Chapter, if a surviving spouse, surviving domestic partner, child and/or children, as those terms are defined in Sections 3.28.1460, 3.28.1560, and 3.28.1750 of this Chapter, whichever is applicable, is receiving a monthly survivorship allowance pursuant to Part 11, Part 12 or Part 14 of this Chapter or is receiving an optional settlement allowance pursuant to Part 13 of this Chapter because of the death of a member, then said surviving spouse, surviving domestic partner, child and/or children may be entitled to medical insurance coverage in an eligible medical plan as specified in Section 3.28.1970 if the following conditions are satisfied:

• A. The member either died before receiving retirement pay or was retired either for service or disability; and

T3:253

SAN JOSÉ CODE

§ 3.28.1960

• B. At the time of the member's death, the member:

  1. Was entitled to credit for fifteen (15) or more years of service; or

  2. Was receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of such member's final compensation; or

  3. Would have been receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of such member's final compensation if the workers' compensation offset set forth in Section 3.28.1010 did not apply; or

  4. Was retired for service between May 14, 1993, and June 19, 1993, inclusive, and was entitled to credit for twelve (12) or more years of service; or

  5. Had voluntarily resigned from City service with an effective resignation date between May 14, 1993, and June 19, 1993, inclusive, had elected to remain a member of this System by allowing his or her accumulated contributions to remain in the retirement fund, and at the time of such resignation was entitled to credit for twelve (12) or more years of service.

• C. Notwithstanding any other provision of this Part, new employees, other than employees represented by the Operating Engineers, Local 3 and the Association of Building, Mechanical and Electrical Inspectors who were hired or rehired before September 27, 2013, and participants in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 and their survivors are not eligible for the benefits provided by this Section 3.28.1960. Instead, any medical insurance coverage that may be provided to these new employees or to employees

who participate in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 who are not eligible for benefits under this Section 3.28.1960, and their respective survivors, shall be determined only as provided under Section 3.28.1955.

(Ords. 21763, 22245, 23736, 24347, 27521, 29184, 29283, 29904.)

• A. Effective June 16, 2017, members and their surviving spouses, surviving domestic partners, and/or children who are eligible for medical insurance coverage under Section 3.28.1950 or 3.28.1960 may instead of receiving such coverage choose to receive a credit for an amount equal to twenty-five percent (25%) of the monthly premium of the lowest cost medical plan as defined under Section 3.28.1980 and the lowest cost dental plan under the coverage provided under Part 17. Such credited amounts must be applied toward the cost of such person's healthcare premiums actually incurred in future years under Part 16 and Part 17 of this Plan.

• B. Each year during the annual open enrollment period during which qualifying individuals covered under this Part 16 and Part 17 are provided the opportunity to elect healthcare coverage under this Part 16, or upon the occurrence of another event identified by the medical plans as providing qualifying individuals with the opportunity to elect coverage under this Part 16, such individuals may again elect such coverage and pay the full cost of the member portion of the coverage or instead elect to have the credit described in Section 3.28.1950.D again credited to be used only for application toward the cost of such person's healthcare premiums actually incurred in future years under Part 16 and Part 17 of this Plan.

• C. Individuals receiving credits in lieu of premiums for greater than the cost of single cover-

T3:254

PERSONNEL

§ 3.28.1970

age must annually submit substantiation that they continue to be eligible for coverage at greater than the cost of single coverage.

1. Eligible retirees who receive retiree healthcare coverage as a dependent of another City employee or retiree are not eligible for the family in lieu premium credit. He or she may elect the single in lieu premium credit.

• D. To the extent a member and/or the member's eligible dependents selects to receive the credits under this Section 3.28.1965.A or 3.28.1965.B and the member and his or her surviving dependents do not use the accumulated credits while eligible for healthcare coverage under this Part 16, any remaining credits will be forfeited. In no event can a member, surviving spouse, surviving domestic partner, and/or eligible dependent receive the credits in lieu of coverage under this Part 16 as cash and such credits may only be applied to the cost of future premiums for coverage provided under this Part 16 and Part 17.

• E. Any member who retires for service or disability pursuant to the provisions of this Chapter waives coverage, he or she will not be required to enroll in Medicare Parts A or B. However, if such member or former member later joins a City plan, he or she will be required to enroll in Medicare Parts A and B and any charges or penalties imposed by Medicare associated with enrollment outside the "initial enrollment period" shall be borne by such member or former member.

• (Ord. 29904.)

• A. A member who, as specified in Section 3.28.1950 or 3.28.1955.B.1. above, is eligible to participate in a medical insurance plan sponsored by the City, provided the member (or Tier 2 member, as applicable) must satisfy the following requirements:

  1. The member retires for service or disability pursuant to the provisions of this Chapter; and

  2. The member applies for medical insurance coverage at the time of his or her retirement in accordance with the provisions of the medical insurance plan, and agrees to pay any applicable premiums; and

  3. The member retires for service or disability pursuant to the provisions of this Chapter and executes a waiver of coverage in the form and manner prescribed by the City indicating that he or she has medical coverage at the time of retirement other than coverage under the City's medical insurance coverage and later applies for medical insurance coverage upon the occurrence of an event identified by the medical plans as providing such individuals with an opportunity to elect to be covered under the City's medical coverage, or if there is no qualifying event, applies for medical insurance coverage during the annual open enrollment period, and agrees to pay any applicable premiums within thirty (30) days of the termination of the prior coverage or the commencement of coverage following open enrollment as applicable.

• B. A survivor who, as specified in Section 3.28.1960 above, or to the extent the survivor of a member (including a Tier 2 member) specified in Section 3.28.1955 above, is eligible to participate in a medical insurance plan sponsored by the City, such survivor must satisfy the following conditions:

  1. The survivor is receiving a monthly survivorship allowance because of the death of a member who either died during his or her employment with the City or died after he or she terminated City employment and was retired pursuant to the provisions of this Chapter; and

  2. At the time of the member's death, the member and the survivor were enrolled in one (1) of the medical insurance plans sponsored by the City; and

T3:255

SAN JOSÉ CODE

§ 3.28.1970

3. The survivor applies to continue medical insurance coverage at the time of the member's death, and agrees to pay any applicable premiums. Notwithstanding the foregoing, if at the time of member's or former member's death, the survivor was not enrolled in a medical insurance plan sponsored by the City, but the survivor would have been eligible to have been enrolled at the time of the member or former member's death, and the survivor applies to continue medical insurance coverage within sixty (60) days of the death of the member or former member and the survivor agrees to pay any applicable premiums, such survivor shall be treated as if the survivor had been enrolled in a medical insurance plan sponsored by the City at the time of the member or former member's death for purposes of continued coverage under the City's medical insurance coverage.

medical insurance coverage within sixty (60) days of the death of the member or former member and the survivor agrees to pay any applicable premiums, such survivor shall be treated as if the survivor had been enrolled in a medical insurance plan sponsored by the City at the time of the member or former member's death for purposes of continued coverage under the City's medical insurance coverage.

• C. A member may secure medical insurance coverage for a spouse only if the spouse and member were married at the time of said member's retirement for service or disability.

• D. A member may secure medical insurance coverage for a domestic partner only if the domestic partner and member had established a registered domestic partnership pursuant to Division 2.5 of the California Family Code or had formed a legal union other than a marriage that is recognized as a domestic partnership pursuant to California Family Code Section 299.2 at the time of said member's retirement for service or disability.

• E. A surviving spouse or surviving domestic partner shall be eligible for single coverage only, except as follows:

  1. A surviving spouse or surviving domestic partner shall be eligible for family coverage if at least one (1) surviving child as defined in Section 3.28.1460.D., or at least one (1) child of the surviving spouse or surviving domestic partner who is unmar-
  • ried, not a member of a registered domestic partnership and under the age of eighteen (18) years, or an eligible surviving child for purposes of receiving a school allowance as defined in Section 3.28.1750, is surviving the death of a member; in such case, if such child was enrolled in a medical insurance plan sponsored by the City at the time of the member's death. Notwithstanding the foregoing, if at the time of the death of the member, such surviving child of the member was not enrolled in a medical insurance plan sponsored by the City, but such surviving child would have been eligible to have been enrolled at the time of the member's death, and such surviving child applies to continue medical insurance coverage within sixty (60) days of the death of the member and the surviving child (or the surviving spouse or domestic partner on behalf of the surviving child) agrees to pay any applicable premiums, such surviving child shall be treated as if the surviving child had been enrolled in a medical insurance plan sponsored by the City at the time of the member's death for purposes of continued coverage under the City's medical insurance coverage.

the member and the surviving child (or the surviving spouse or domestic partner on behalf of the surviving child) agrees to pay any applicable premiums, such surviving child shall be treated as if the surviving child had been enrolled in a medical insurance plan sponsored by the City at the time of the member's death for purposes of continued coverage under the City's medical insurance coverage.

2. A surviving spouse or surviving domestic partner shall be eligible for family coverage if the surviving spouse or surviving domestic partner is the court-appointed guardian of the person of a minor child or children and such minor child or children are eligible for coverage under the terms of the eligible medical plan. A surviving spouse or surviving domestic partner may continue family coverage after such child reaches the age of majority in any case where, if such child had been a surviving child of the member, such child would be an eligible surviving child for purposes of receiving a school allowance pursuant to Part 14 of this Chapter.

T3:256

PERSONNEL

§ 3.28.1970

• F. As used in this Section, "medical insurance plan sponsored by the City" means an eligible medical plan as described in Section 3.28.1990, below.

• G. Notwithstanding the provisions of Sections 3.28.1970.A.1., 2., and 3., and 3.28.1970.B.1., 2., and 3., members or their survivors who would otherwise qualify for participation in a medical insurance plan pursuant to the provisions of this Part, but who, at the time of retirement or death, could not enroll because the benefits provided in this Part were not available at the time of the member's retirement for service or disability or death of the member, may enroll in an eligible insurance plan as provided for in this Part on or before October 31, 1984. If a member or survivor does not enroll on or before October 31, 1984, then said members or their survivors must otherwise comply with the coverage limitations provided in Section 3.28.1970 and with all other provisions of this Part.

• H. A surviving spouse who would otherwise qualify for family coverage because the surviving spouse is the court-appointed guardian of the person of a minor child or children but who could not enroll because the family coverage provided in subsection E. above was not available to the surviving spouse at the time of the member's death, may enroll in family coverage in an eligible insurance plan as provided for in this Part until December 30, 2002, only. Said surviving spouse must otherwise comply with the coverage limitations set forth in this Section 3.28.1970 and with all other provisions of this Part.

• I. Effective September 30, 2012 for Tier 2 members and effective January 4, 2013 for non-Tier 2 members, a member and/or dependent and/or survivor who is eligible for retiree healthcare benefits in the Federated City Employees' Retirement System and who is eligible for Medicare coverage, including any Tier 2 member and/or dependents and/or survivors of such Tier 2 member to the extent they may be eligi-

ctive September 30, 2012 for Tier 2 members and effective January 4, 2013 for non-Tier 2 members, a member and/or dependent and/or survivor who is eligible for retiree healthcare benefits in the Federated City Employees' Retirement System and who is eligible for Medicare coverage, including any Tier 2 member and/or dependents and/or survivors of such Tier 2 member to the extent they may be eligi-

ble for retiree healthcare benefits under Section 3.28.1955, shall be required to enroll in Medicare Part A and B during the individual's "initial enrollment period" under the applicable federal rules. The initial enrollment period shall begin three (3) months before the plan member and/or survivor's sixty-fifth (65th) birthday (or other event providing eligibility for enrollment in Medicare) and concludes four (4) months after the plan member and/or dependent and/or survivor's sixty-fifth (65th) birthday (or other event providing eligibility for enrollment in Medicare). Additionally, the plan member and/or dependent and/or survivor who is eligible for Medicare coverage shall be required to enroll in a Medicare Plan provided by the Federated City Employees' Retirement System and assign Medicare Part A and B benefits to the Medicare Plan if required by the healthcare provider. Any member who retires for service or disability pursuant to the provisions of this Chapter or is a former member receiving a monthly allowance pursuant to Section 3.36.1640 waives coverage, he or she will not be required to enroll in Medicare Parts A or B. However, if such member or former member later joins a City plan, he or she will be required to enroll in Medicare Parts A and B and any charges or penalties associated with enrollment outside the "initial enrollment period" shall be borne by such member or former member.

If a Plan member was hired before March 1986 and is not eligible for Medicare Part A at no cost or a Plan member for any reason is not eligible for Medicare, the Plan member shall be required to provide such verification from the U.S. Social Security Administration to the Department of Retirement Services. Unless such verification is provided, Plan members shall be required to enroll in a Medicare Plan provided by the Federated City Employees' Retirement System within six (6) months of the "initial enrollment period." This provision shall not apply to those who waive coverage.

T3:257

SAN JOSÉ CODE

§ 3.28.1970

If a Plan member fails to meet the requirements set forth above within six (6) months from the date of the member's (or dependent or survivor's) "initial enrollment period," the Plan shall cease to provide retiree healthcare benefits until the Plan member completes such requirements. This means that the member and any qualifying dependents shall not receive retiree healthcare benefits. The Plan member and qualifying dependents shall be reenrolled in retiree healthcare benefits beginning the first day of the following month after such requirements have been completed.

the Plan shall cease to provide retiree healthcare benefits until the Plan member completes such requirements. This means that the member and any qualifying dependents shall not receive retiree healthcare benefits. The Plan member and qualifying dependents shall be reenrolled in retiree healthcare benefits beginning the first day of the following month after such requirements have been completed.

If the Plan member dies during the period which the Plan member failed to complete the requirements set forth above, the eligible spouse or domestic partner and any qualifying child(ren) shall be re-enrolled in a health insurance plan. When the spouse or domestic partner is age sixty-five (65), the requirements described above regarding enrollment in Medicare Parts A and B and enrollment in a Medicare Plan provided for City retirees and dependents, and assignment of Medicare Parts A and B benefits to the Medicare Plan must be fulfilled, unless verification is provided that the spouse or domestic partner is not eligible for Medicare coverage as described in this Section. If such requirements are not met, retiree healthcare coverage will cease until such requirements are completed, in the same manner set forth above with respect to members.

• J. Subject to the provisions of this Chapter, effective June 16, 2017 and upon IRS approval of the VEBA, a member of the VEBA who meets the requirements of Section 3.58.300 may be entitled to receive benefits similar to those established under Parts 16 and 17 of Chapter 3.28 as such benefits are described in Chapter 3.58. These provisions entitle a VEBA member to a benefit equal to the amount of the premium for single coverage under the lowest cost medical insurance coverage avail-

• able under the City's retiree medical program. VEBA members with at least five years of service with the City may be eligible to purchase medical benefits under the City's healthcare plans, however, such medical plan purchases will be at a retiree only rate that is not a rate blended with active City employees eligible for any benefits under the City's retiree medical program. VEBA members with less than five years of service with the City are not eligible for the benefits described herein. Such benefit shall cease at the time that such member is eligible for coverage under Medicare and subject to the provisions of Section 3.58.320. The catastrophic disability healthcare benefit provided under Chapter 3.58 shall be paid from the Federated Healthcare Trust Fund, as applicable.

(Ords. 21763, 22807, 26642, 27521, 29120, 29174, 29283, 29904, 30017.)

medical insurance coverage to members or survivors.

• A. The costs of premiums for medical insurance coverage in an eligible medical plan shall be paid from the medical benefits account established by Section 3.28.380 or from the trust fund established by Chapter 3.52 and by deductions from monthly allowances paid by the Plan in accordance with this Section 3.28.1980. Unless otherwise determined by the trustees, payment shall be made out of the medical benefits account until the account is exhausted and thereafter out of the trust fund established by Chapter 3.52.

• B. Except as provided in subsections C. and D.:

  1. The portion of the premium to be paid from the medical benefits account, or trust fund established by Chapter 3.52, shall be the portion that represents an amount equivalent to the lowest of the premiums for single or family medical insurance coverage, for which the member or survivor is eligible and in which

T3:258

PERSONNEL

§ 3.28.1990

the member or survivor enrolls under the provisions of this Part, which is available to an employee of the City at such time as said premium is due and owing.

2. Members or survivors shall be required to pay that portion of the premium which represents the difference between the cost of the premium for the medical plan selected by the member or the survivors and the portion paid from the medical benefits account. Such premium as is required to be paid by a member or survivor shall be deducted from the allowance payable to such member or survivor under this Chapter.

• C. A surviving spouse or surviving domestic partner who is otherwise eligible only for single coverage, but who elects family coverage pursuant to Section 3.28.1970.D., shall be required to pay that portion of the medical premium which exceeds the sum of the amount payable by the surviving spouse or surviving domestic partner and the amount payable from the medical benefits account or the trust fund established by Chapter 3.52 for single coverage as provided in subsection B. above. The portion of the premium required to be paid by the surviving spouse or surviving domestic partner shall be deducted from the monthly allowances otherwise payable to the surviving spouse or surviving domestic partner.

• D. To the extent that any member (including Tier 2 members), or their survivors, are eligible for medical insurance coverage as provided under Section 3.28.1955, the benefit provided from the medical benefits account, or trust fund established by Chapter 3.52, shall be the benefit that is specified under Section 3.28.1955. In the same manner as other members and eligible survivors under subsection C. above, to the extent members (including Tier 2 members) or their eligible survivors are eligible for benefits under Part 16 as specified under Section 3.28.1955, they shall be required to pay that portion of the premium which represents

ed by Chapter 3.52, shall be the benefit that is specified under Section 3.28.1955. In the same manner as other members and eligible survivors under subsection C. above, to the extent members (including Tier 2 members) or their eligible survivors are eligible for benefits under Part 16 as specified under Section 3.28.1955, they shall be required to pay that portion of the premium which represents

the difference between the cost of the premium payable for the medical plan selected by the member (including Tier 2 members) and the portion paid from the medical benefits account or the trust fund established by Chapter 3.52. Any such premium required to be paid by a Tier 2 member or City of San José defined contribution plan participant, or their survivors, shall be deducted from the retirement or survivor allowance payable under this Chapter.

• E. For the purposes of this Section, "lowest of the premiums" means that medical plan (single or family coverage as applicable to the coverage selected by the member, former member or survivor):

  1. Which is an eligible medical plan as defined in Section 3.28.1990(A); and

  2. Which has the lowest monthly premium of all eligible medical plans as defined in Section 3.28.1990(A) then in effect, determined as of the time the premium is due and owing. The lowest of the premiums for any current or future retiree in the defined benefit retirement healthcare plan shall be permanently set such that it would qualify for "silver level" as specified by the Affordable Healthcare Act (ACA) in effect in July 2015. This specifically includes the provision that the healthcare plan must be estimated to provide at least seventy percent (70%) (the "floor") but no more than seventy-nine percent (79%) (the "ceiling") of healthcare expenses (actuarial valuation) per the current ACA "silver" definition.

(Ords. 21763, 26642, 27521, 27838, 28914, 29283, 29904, 30087.)

For purposes of this Part 16, members or their survivors (including Tier 2 members and their survivors to the extent eligible for contributions under Section 3.28.1955) may secure medical insurance coverage only from:

• A. Medical Plans Offered to Active City Employees - an eligible medical plan which is

T3:259

SAN JOSÉ CODE

§ 3.28.1990

a plan in which the City has entered into a contract for the provision of hospital, medical, surgical and related benefits as part of the City's benefits to City employees; or

• B. Medicare Medical Plans - an eligible medical plan which is a plan in which the City has entered into a contract for a Medicare coverage medical plan for the provision of hospital, medical, surgical and related benefits for Medicare recipients; or

• C. Medical Plans Not Offered to Active City Employees - an eligible medical plan which is a plan in which the City has entered into a contract for medical plans for the provision of hospital, medical, surgical and related benefits which are not part of the City's benefits to City employees.

(Ords. 21763, 29283, 30087.)

• A. It is intended that the funding provided to the retirement fund for medical benefits provided by this system meet the requirements of Internal Revenue Code Section 401(h). Subject to the requirements of the Meyers-Milias-Brown Act (California Government Code Section 3500 et seq.), the city reserves the right to amend this part to limit the funding provided to the retirement fund for the medical benefits as necessary to satisfy the requirements of said Section 401(h).

• B. In the event the contributions required to be paid into the retirement fund to fund the benefits provided by this Part 16 and the dental benefits provided by Part 17, as determined by the board's actuary, would exceed the contribution limit permitted by Internal Revenue Code Section 401(h) and the applicable regulations, the allocation of costs set forth in Section 3.28.1980 shall be adjusted as needed so that the contributions made to fund the

portion paid from the medical benefits account comply with Section 401(h). The board, in consultation with its actuary, shall determine the adjustment to be implemented until this part is amended pursuant to Subsection A. above.

(Ords. 27838, 28914, 29283.)

Part 17

DENTAL BENEFITS FOR RETIRED MEMBERS AND SURVIVORS

Sections:

• 3.28.2005 Dental benefits for new employees effective on or after June 16, 2017 and participants in the City of San José defined contribution plan under Chapter 3.49 and their survivors.

• 3.28.2010 Dental benefits for survivors of members.

• 3.28.2020 Requirements for participation in dental insurance plan.

• 3.28.2030 Costs of dental insurance.

• 3.28.2040 Eligible dental plan.

• 3.28.2045 Limitation on funding for dental benefits.

• A. Subject to the provisions of this Chapter, if a member of this System is retired for service or disability and at the time of such retirement is: (i) entitled to credit for five (5) or more years of service; or (ii) is receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of the final compensation of said member; or (iii) would be receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of the final compensation of said member if the workers' compensation offset set forth in Section 3.28.1040 did not apply,

T3:260

PERSONNEL

§ 3.28.2005

then said member may be entitled to dental insurance coverage in an eligible dental plan as specified in this Part.

• B. Any member who is eligible for dental coverage but instead elects to participate in the "In Lieu" premium credit option described in Section 3.28.1965, and later elects to again be covered under the City's medical and dental coverage during the annual open enrollment period or upon qualifying events upon the occurrence of an event identified by the medical plans as providing such individuals with an opportunity to elect to be covered under the City's medical coverage shall be required to pay the full portion of the member cost of coverage under this Part 17.

• C. Effective on or after June 16, 2017 any dental insurance coverage that may be provided to an employee who is a participant in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 shall be determined only as provided under Section 3.28.2005.

• D. Effective June 16, 2017, this Part 17 shall not be applicable to new employees and they shall not be eligible for dental insurance coverage under this Part 17. Notwithstanding the preceding sentence, new employees hired before September 27, 2013 who are represented by the Operating Engineers, Local 3 or the Association of Building, Mechanical and Electrical Inspectors shall be eligible for benefits under this Section 3.28.2000 if he or she meets the requirements of subsection 3.28.2000.A.

• (Ords. 22261, 29184, 29283, 29904.)

• A. Effective June 16, 2017, new employees and their respective survivors shall not be eligible for dental insurance coverage in an eligible dental plan under this Part 17. Except to the

extent specifically provided in Section 3.28.2005.B. and Section 3.28.2005.C. below, effective as of the date the provisions of Chapter 3.58 become effective, new employees and their surviving spouse, surviving domestic partner, surviving child and/or children may be eligible for dental coverage under Chapter 3.58, if applicable.

• B. If insurance coverage under Part 17 for Tier 2 members is terminated by the City Manager prior to the establishment of benefits under Chapter 3.58, affected Tier 2 members shall not be entitled to any benefits or make any additional contributions under this Part 17 once participation is terminated and affected Tier 2 members shall not be entitled to any retiree dental benefits nor make dental benefit contributions during the gap period between termination of benefits under Part 17 and establishment of the VEBA under Chapter 3.58. Notwithstanding the preceding sentences, new employees hired prior to September 27, 2013 who are represented by the Operating Engineers, Local 3 or the Association of Building, Mechanical, and Electrical Inspectors who do not make a one-time irrevocable election to participate in the retiree healthcare benefits provided under Chapter 3.58 and who meet the requirements of Section 3.28.2000.A. shall be eligible for dental benefits under this Part 17.

• C. Members rehired or reinstated prior to the effective date of the provisions of Chapter 3.58 shall be treated as Tier 2 members for purposes of this Part 17 and shall not be entitled to dental insurance coverage under this Part 17. Instead, such members shall be entitled to dental coverage under the provisions of Chapter 3.58, if eligible. Provided however, effective as of the date the provisions of Chapter 3.58 become effective, a rehired or reinstated member who was a non-Tier 2 member during his or her previous employment with the City and, at the time of his or her prior termination, satisfied the requirements of Sec-

T3:261

SAN JOSÉ CODE

§ 3.28.2005

tion 3.28.2000.A., shall remain entitled to dental insurance coverage for which the member or survivor would have been eligible under the provisions of Part 17 based upon such member's eligibility at the prior termination date as if the member had not been rehired or reinstated.

• D. Defined Contribution Plan Participants and Their Survivors. Employees who are participants in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 and their survivors shall not be entitled to dental insurance coverage under this Part 17.

(Ords. 29283, 29904.)

Subject to the provisions of this Chapter, if a surviving spouse, surviving domestic partner, or surviving child and/or children, as those terms are defined in Sections 3.28.1460, 3.28.1560, and 3.28.1750 of this Chapter, whichever is applicable, is receiving a monthly survivorship allowance pursuant to Part 11, Part 12 or Part 14 of this Chapter or is receiving an optional settlement allowance pursuant to Part 13 of this Chapter because of the death of a member of this System, other than the death of a Tier 2 member effective on or after September 27, 2013 or a participant under the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49, then said surviving spouse, surviving domestic partner, or surviving child and/or children may be entitled to dental insurance coverage in an eligible dental plan as specified in this Part if the following conditions are satisfied:

• A. The member either died before receiving retirement pay or was retired for either service or disability; and

• B. Such member was at the time of death:

  1. Entitled to credit for five (5) or more years of service; or

  2. Was receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of final compensation; or

  3. Would have been receiving an allowance equal to at least thirty-seven and one-half percent (37.5%) of final compensation if the workers' compensation offset set forth in Section 3.28.1040 did not apply.

• C. Notwithstanding any other provision of this Part, new employees, other than new employees represented by the Operating Engineers, Local 3 and the Association of Building, Mechanical and Electrical Inspectors who were hired or rehired before September 27, 2013 and meet the requirements of Section 3.28.2020, and participants in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 and their survivors are not eligible for the benefits provided by this Section 3.28.2010. Instead, any dental insurance coverage that may be provided to these new employees or to employees who are participants in the City of San José defined contribution plan for employees in Unit 99 under Chapter 3.49 who are not eligible for benefits under this Section 3.28.2010, and their respective survivors, shall be determined only as provided under Section 3.28.2005.

• D. Any survivor who is eligible for dental coverage but instead elects to participate in the "In Lieu" premium credit option described in Section 3.28.1965, and later elects to again be covered under the City's medical and dental coverage during the annual open enrollment period or the occurrence of another event identified by the dental plans as providing such individuals with an opportunity to elect to be covered under the City's dental coverage

T3:262

PERSONNEL

§ 3.28.2020

shall be required to pay the full portion of the member cost of coverage under this Part 17.

(Ords. 22261, 23736, 27521, 29184, 29283, 29904.)

• A. A member who, as specified in Section 3.28.2000 above, is eligible, or to the extent a Tier 2 member is specified in Section 3.28.2005 above as eligible, to participate in a dental insurance plan sponsored by the City, provided the member (or Tier 2 member as applicable) must satisfy the following requirements:

  1. The member terminates City employment pursuant to the retirement provisions of this Chapter; and

  2. At the time of his or her retirement, the member is enrolled in one of the dental insurance plans sponsored by the City; and

  3. If the member retires for service or disability pursuant to the provisions of this Chapter and at the time of his or her retirement executes a waiver of coverage in the form and manner prescribed by the City indicating that he or she has dental coverage at the time of retirement other than coverage under the City's dental insurance coverage and later applies for dental insurance coverage due to the occurrence of another event identified by the dental plans as providing such individuals with an opportunity to elect to be covered under the City's dental coverage, or if there is no qualifying event, applies for dental insurance coverage during the annual open enrollment period, and agrees to pay any applicable premiums within thirty (30) days of the termination of the prior coverage or the commencement of coverage following open enrollment as applicable;

• B. A survivor of a member who, as specified in Section 3.28.2010 above, or to the extent the

survivor of a Tier 2 member as specified in Section 3.28.2005 above, is eligible to participate in a dental insurance plan sponsored by the City, the survivor must satisfy the following requirements:

1. The survivor is receiving a monthly survivorship allowance because of the death of a member who either died during his or her employment with the City or died after he or she terminated City employment pursuant to the retirement provisions of this Chapter; and

2. At the time of the member's death, the member and the survivor were enrolled in one (1) of the dental insurance plans sponsored by the City and the survivor applies to continue dental insurance coverage within thirty (30) days of the death of the member. Notwithstanding the foregoing, if at the time of the death of the member or former member, the survivor was not enrolled in a dental insurance plan sponsored by the City, but the survivor would have been eligible to have been enrolled at the time of the member or former member's death, and the survivor applies to continue dental insurance coverage within sixty (60) days of the death of the member or former member and the survivor agrees to pay any applicable premiums, such survivor shall be treated as if the survivor had been enrolled in a dental insurance plan sponsored by the City at the time of the member or former member's death for purposes of continued coverage under the City's dental insurance coverage.

nue dental insurance coverage within sixty (60) days of the death of the member or former member and the survivor agrees to pay any applicable premiums, such survivor shall be treated as if the survivor had been enrolled in a dental insurance plan sponsored by the City at the time of the member or former member's death for purposes of continued coverage under the City's dental insurance coverage.

• C. Notwithstanding the provisions of subsections A. and B. of this Section, all retired members and survivors of members who meet the qualifications set forth in Section 3.28.2000 or Section 3.28.2010 and who receive a retirement or survivorship allowance for the month

T3:263

SAN JOSÉ CODE

§ 3.28.2020

of July 1986 shall automatically be enrolled in an eligible dental insurance plan as specified in this Part.

(Ords. 22261, 29283, 29904.)

• A. The cost of providing dental insurance coverage as provided in this Part shall be borne by and paid from the medical benefits account established by Section 3.28.380 or from the trust fund established by Chapter 3.52. Unless otherwise determined by the trustees, payment shall be made out of the medical benefits account until the account is exhausted and thereafter out of the trust fund established by Chapter 3.52.

• B. Except as provided in subsections C. and D.:

  1. The portion of the premium to be paid from the medical benefits account established under Section 3.28.380, or trust fund established by Chapter 3.52, shall be the portion that represents an amount equivalent to the lowest of the premiums for single or family dental insurance coverage, for which the member or survivor is eligible and in which the member or survivor enrolls under the provisions of this Part, which is available to an employee of the City at such time as said premium is due and owing.

  2. Members or survivors shall be required to pay that portion of the premium which represents the difference between the cost of the premium for the dental plan selected by the member or the survivors and the portion paid from the medical benefits account. Such premium as is required to be paid by a member or survivor shall be deducted from the allowance payable to such member or survivor under this Chapter.

• C. To the extent that any member (including Tier 2 members) or their survivors, are eligible for dental insurance coverage as provided under Section 3.28.2005, the benefit provided from

the medical benefits account, or trust fund established by Chapter 3.52, shall be the benefit that is specified under Section 3.28.2005. In the same manner as other members and eligible survivors under subsection B. above, to the extent members (including Tier 2 members) or their eligible survivors are eligible for benefits under Part 17 as specified under Section 3.28.2005, they shall be required to pay that portion of the premium which represents the difference between the cost of the premium payable for the dental plan selected by the member (including Tier 2 members) and the portion paid from the medical benefits account or the trust fund established by Chapter 3.52. Any such premium required to be paid by a Tier 2 member or their survivors, shall be deducted from the retirement or survivor allowance payable under this Chapter.

• D. For the purposes of this Section, "lowest of the premiums" means that dental plan (single or family coverage as applicable to the coverage selected by the member, former member or survivor) which is an eligible dental plan as defined in Section 3.28.2040; and which has the lowest monthly premium of all eligible dental plans.

(Ords. 22261, 27838, 28914, 29283, 29904.)

For the purposes of this part, members or their survivors (including tier 2 members and their survivors to the extent eligible for coverage under Section 3.28.2005) may secure dental insurance coverage only from an eligible dental plan with which the city has entered into a contract for the provision of dental benefits as part of the city's benefits to city employees.

(Ords. 22261, 29283.)

• A. It is intended that the funding provided to the retirement fund for dental benefits provided by this system meet the requirements of Inter-

T3:264

PERSONNEL

§ 3.28.2120

nal Revenue Code Section 401(h). Subject to the requirements of the Meyers-Milias-Brown Act (California Government Code Section 3500 et seq.), the city reserves the right to amend this part to allocate costs of providing dental medical benefits as necessary to satisfy the requirements of said Section 401(h).

• B. In the event the contributions required to be paid into the retirement fund to fund the benefits provided by this Part 17 and the medical benefits provided by Part 16, as determined by the board's actuary, would exceed the contribution limit permitted by Internal Revenue Code Section 401(h) and the applicable regulations, then Section 3.28.2030 notwithstanding, all or a portion of the costs set forth in Section 3.28.2030 may be allocated to the retiree, former member or survivor covered by the dental plan as needed so that the contributions made to fund the portion paid from the medical benefits account comply with Section 401(h). The board, in consultation with its actuary, shall determine the allocation to be implemented until this system is amended pursuant to Subsection A. above.

• (Ords. 27838, 28914, 29283.)

Part 18

1987 EARLY RETIREMENT INCENTIVE PROGRAM

Sections:

• 3.28.2110 Eligibility requirements.

• 3.28.2120 Benefits incentive.

• 3.28.2130 Payout of leave balances.

• 3.28.2140 Part 9 applicability.

• 3.28.2150 Additional costs borne by city.

There is hereby established the 1987 Early Retirement Incentive Program for those members of this system who meet the eligibility requirements of Section 3.28.2110.

(Ord. 22573.)

A member of this system who is performing federated city service on June 23, 1987, who continues to perform such service through October 3, 1987, and who meets all of the following eligibility requirements may participate in the early retirement incentive program established by this part and may be retired for service thereunder:

• A. The member must, as of October 3, 1987, be entitled to credit for at least fifteen years of federated city service, as described in Section 3.28.610.B, subsections 1. through 6., of which not less than five years were rendered after the member became and while the member was a member of this system.

• B. The member must, as of October 3, 1987, either:

  1. Be at least fifty-two years of age; or

  2. Be entitled to credit for at least twenty-seven years of federated city service.

• C. The member must file his or her written application for retirement for service pursuant to this chapter during the period of time from June 23, 1987, to September 15, 1987, inclusive.

• D. The member's retirement for service must become effective on October 4, 1987.

• (Ord. 22573.)

Any provision of this chapter to the contrary notwithstanding, for the purpose of determining the amount of the monthly retirement allowance under Section 3.28.1110.C., 3.28.1120.B., or 3.28.1130.B., a member who retires for service pursuant to Section 3.28.2110 shall be entitled to credit

T3:265

SAN JOSÉ CODE

§ 3.28.2120

for federated city service, in addition to the federated city service credit described in Section 3.28.610.B, subsections 1 through 6 which was earned by such member as of the date of retirement, as follows:

• A. A member who is at least fifty-five years of age and is entitled to credit for at least fifteen years of federated city service shall receive credit for one additional full year of federated city service.

• B. Except as provided in subsection D., a member who is at least fifty-two years of age but less than fifty-five years of age and who is entitled to credit for at least fifteen years of federated city service shall receive credit for one additional full year of federated city service for each year between such member's age on the date of retirement and fifty-five years, calculated as follows:

• C. Except as provided in subsection D., a member who is entitled to credit for at least twenty-seven years but less than thirty years of federated city service and is less than fifty-five years of age shall receive one additional full year of federated city service credit for each year between the number of years of earned service credit on the date of retirement and thirty years, calculated as follows:

• D. A member who is at least fifty-two years of age but less than fifty-five years of age and who is entitled to credit for at least

twenty-seven years but less than thirty years of federated city service shall receive credit for additional federated city service as described in subsection B. or C., whichever is less.

• E. Any other provision herein notwithstanding, in no event shall the member's monthly retirement allowance exceed a maximum of seventy-five percent of the member's final compensation.

• (Ord. 22573.)

Whenever any member who retires pursuant to Section 3.28.2110 is entitled to payout for accumulated sick leave, vacation and/or compensatory time, such payout shall be in two equal installments. The first installment shall be payable upon retirement. The second installment shall be payable on August 1, 1988. (Ord. 22573.)

The provisions of Part 9 of this chapter which are not inconsistent with or contrary to the provisions of this Part 18 shall apply to all persons who retire pursuant to Section 3.28.2110. (Ord. 22573.)

The city shall contribute to the retirement fund such amounts as are actuarially determined to be necessary to provide funding for all additional costs incurred by this retirement system because of the benefits provided by this part to any city officers or employees which would not have been provided absent the adoption of this part. (Ord. 22573.)

Part 19

1992 EARLY RETIREMENT INCENTIVE PROGRAM

Sections:

There is hereby established the 1992 Early Retirement Incentive Program for those members of this system who meet the eligibility requirements of Section 3.28.2210. (Ord. 24107.)

A member of this system who meets all of the following eligibility requirements may participate in the 1992 Early Retirement Incentive Program established by this part and may be retired for service under such program:

• A. The member must, as of July 5, 1992, be employed by the City of San José. A member who, on July 5, 1992, is on an unpaid leave of absence from federated city service and has a right to return to service pursuant to the city's leave of absence policies, shall be deemed to be employed by the city for the purposes of this subsection A.

• B. The member must, as of the effective date of the member's retirement and no later than November 7, 1992, be entitled to credit for at least fifteen years of federated city service, as described in Section 3.28.610.B., paragraphs 1 through 6.

• C. The member must, as of the effective date of the member's retirement and no later than November 7, 1992, either:

  1. Be at least fifty-three years of age; or

  2. Be entitled to credit for at least twenty-eight years of federated city service.

• D. The member must file his or her written application for retirement pursuant to this part prior to September 15, 1992.

  • E. The member's retirement for service must become effective on or before November 7, 1992.

• (Ord. 24107.)

Any provision of this chapter to the contrary notwithstanding, for a member who retires pursuant to Section 3.28.2210 the amount of the monthly retirement allowance under Section 3.28.1110.B., Section 3.28.1120.B. or Section 3.28.1130.B., shall be calculated in accordance with this section.

• A. Except as provided in subsections C. and D., in addition to the federated city service described in Section 3.28.610.B., paragraphs 1 through 6, which was earned by such member as of the date of retirement, a member who is at least fifty-three years of age and is entitled to credit for at least fifteen years of federated city service shall receive additional service credit for the lesser of:

  1. The number of years of service credit such that, when added to the number of years of service credit already earned by the member, will total thirty years; or

  2. Two full years.

• B. Except as provided in subsections C. and D., in addition to the federated city service described in Section 3.28.610.B., paragraphs 1. through 6., which was earned by such member as of the date of retirement, a member who is entitled to credit for at least twenty-eight but less than thirty years of federated city service shall receive additional service credit for the number of years of service credit such that, when added to the number of years of service credit already earned by the member, will total thirty years.

• C. No member shall receive additional service credit under both subsections A. and B. If a member qualifies for additional service credit under both subsections A.

T3:267

SAN JOSÉ CODE

§ 3.28.2220

and B., the member shall receive the additional service credit only under whichever subsection provides for the greater amount of additional service credit.

• D. For a member who is entitled to credit for at least thirty years of federated city service, no additional service credit shall be given. Instead, notwithstanding the provisions of Section 3.28.030.11, final compensation shall be defined to mean the highest compensation earned by such member during any consecutive twelvemonth period of federated city service.

• (Ord. 24107.)

Whenever any member who retires pursuant to Section 3.28.2210 is entitled to payout for accumulated sick leave and/or vacation, such payout shall be in two equal installments. The first installment shall be payable on January 8, 1993. The second installment shall be payable on January 7, 1994.

(Ord. 24107.)

The provisions of Part 9 of this chapter which are not inconsistent with or contrary to the provisions of this Part 19 shall apply to all persons who retire pursuant to Section 3.28.2210. (Ord. 24107.)

The city shall contribute to the retirement fund such amounts as are actuarially determined to be necessary to provide funding for all additional costs incurred by this retirement system because of the payment of benefits provided by this part to any city officers or employees which would not have been provided absent the adoption of this part. (Ord. 24107.)

Part 20

1993 EARLY RETIREMENT INCENTIVE PROGRAM

Sections:

There is hereby established the 1993 Early Retirement Incentive Program for those members of this system who meet the eligibility requirements of Section 3.28.2310.

(Ord. 24346.)

A member of this system who meets all of the following eligibility requirements may participate in the 1993 Early Retirement Incentive Program established by this part and may be retired for service under such program:

• A. The member must, as of May 14, 1993, be employed by the City of San José. A member who, on May 14, 1993, is on an unpaid leave of absence from federated city service and has a right to return to service pursuant to the city's leave of absence policies, shall be deemed to be employed by the city for the purposes of this subsection A.

• B. The member must, as of the effective date of the member's retirement and no later than October 24, 1993, be entitled to credit for at least fifteen years of federated city service, as described in Section 3.28.610.B., paragraphs 1. through 6.

• C. The member must, as of the effective date of the member's retirement, and no later than October 24, 1993, either:

  1. Be at least fifty-three years of age; or

T3:268

PERSONNEL

§ 3.28.2340

  2. Be entitled to credit for at least twenty-eight years of federated city service. 

• D. The member must file his or her written application for retirement pursuant to this part prior to May 14, 1993.

• E. The member's retirement for service must become effective on or before October 24, 1993.

• (Ord. 24346.)

Any provision of this chapter to the contrary notwithstanding, for a member who retires pursuant to Section 3.28.2310, the amount of the monthly retirement allowance under Section 3.28.1110.B., Section 3.28.1120.B., or Section 3.28.1130.B., shall be calculated in accordance with this section.

• A. Except as provided in subsections C. and D., in addition to the federated city service described in Section 3.28.610.B., paragraphs 1. through 6., which was earned by such member as of the date of retirement, a member who is at least fiftythree years of age and is entitled to credit for at least fifteen years of federated city service shall receive additional service credit for the lesser of:

  1. The number of years of service credit such that, when added to the number of years of service credit already earned by the member, will total thirty years; or

  2. Two full years.

• B. Except as provided in subsections C. and D., in addition to the federated city service described in Section 3.28.610.B., paragraphs 1. through 6., which was earned by such member as of the date of retirement, a member who is entitled to credit for at least twenty-eight but less than thirty years of federated city service shall receive additional service credit for the number of years of service credit

such that, when added to the number of years of service credit already earned by the member, will total thirty years.

• C. No member shall receive additional service credit under both subsections A. and B. If a member qualifies for additional service credit under both subsections A. and B., the member shall receive the additional service credit only under whichever subsection provides for the greater amount of additional service credit.

• D. For a member who is entitled to credit for at least thirty years of federated city service, no additional service credit shall be given. Instead, notwithstanding the provisions of Section 3.28.030.11, final compensation shall be defined to mean the highest compensation earned by such member during any consecutive twelvemonth period of federated city service.

• (Ord. 24346.)

The provisions of Part 9 of this chapter which are not inconsistent with or contrary to the provisions of this Part 20 shall apply to all persons who retire pursuant to Section 3.28.2310. (Ord. 24346.)

The city shall contribute to the retirement fund such amounts as are actuarially determined to be necessary to provide funding for all additional costs incurred by this retirement system because of the payment of benefits provided by this part to any city officers or employees which would not have been provided absent the adoption of this part. (Ord. 24346.)

Part 21

RECIPROCITY

Sections:

T3:269

SAN JOSÉ CODE

§ 3.28.2400

The purpose of this Part 21 is to extend to the members of other public agency retirement systems which adopt similar reciprocal provisions into their retirement ordinances or plans pursuant to Sections 20042, 20043, 31840.2, or 45310.5 of the California Government Code or pursuant to the charter of a city or a city and county or pursuant to the authority vested in any other public agency of the state of California (hereafter "reciprocal systems"), and which have entered into an agreement to establish a reciprocal retirement system with the California Public Employees' Retirement System, the rights in this retirement plan set forth in this Part 21. (Ord. 24682.)

• A. Subject to Section 3.28.2460, the provisions of this Part 21 shall only apply to a person who satisfies the requirements of paragraph 1. or paragraph 2. of this subsection A.:

  1. The person is a member of this retirement system, terminates his or her employment with the city, and:

     • a. In the case where such termination of employment occurs between July 1, 1975, and December 31, 1975, inclusive, becomes a member of a reciprocal system within ninety days of such termination of employment; or

     • b. In the case where such termination of employment occurs on or after January 1, 1976, becomes a mem-

ber of a reciprocal system within six months of such termination of employment.

2. The person is a member of a reciprocal system, terminates his or her employment pursuant to which he or she was a member of such reciprocal system; and:

   • a. In the case where such termination of employment occurred prior to July 1, 1975, became a member of the Chapter 3.24 system within ninety days of such termination of employment and became a member of this retirement system pursuant to Section 3.28.400, 3.28.410, 3.28.420, 3.28.430, or 3.28.440; or

   • b. In the case where such termination of employment occurs between July 1, 1975, and December 31, 1975, inclusive, becomes a member of this retirement system within ninety days of such termination of employment; or

   • c. In the case where such termination of employment occurs on or after January 1, 1976, becomes a member of this retirement system within six months of such termination of employment.

• B. Except as provided in subsection C. below, the provisions of this Part 21 shall apply only to a member whose termination and entry into employment resulting in a change in membership from this retirement system to a reciprocal system, or from a reciprocal system to this retirement system, as provided in subsection A. above, occurred after the effective date specified in the agreement for reciprocal benefits between the board of administration of the public employees retirement system and the city council of the City of San José.

• C. The provisions of this Part 21 relating to computation of final compensation shall apply to a member if such provisions would have ap-

T3:270

PERSONNEL

§ 3.28.2420

plied had the member's termination and entry into employment occurred after the effective date of the agreement for reciprocal benefits. (Ords. 24682, 25031.)

The following provisions shall apply to a member who meets the requirements of Section 3.28.2410:

• A. The member shall have the right to elect to leave his or her accumulated contributions on deposit in the Federated City Employees Retirement Fund irrespective of the amount of such contributions or the length of service credited to the member under this Retirement System. Such election shall be irrevocable while membership in the reciprocal system continues.

• B. For the purpose of the calculation of contribution rates of the City and the members, the age of entry for a person entering this Retirement System from a reciprocal system shall be such person's age at entry into the reciprocal system.

• C. The average monthly salary during any period of service as a member of a reciprocal system shall be considered compensation to a member of this Retirement System for the purpose of computing final compensation for such member if all of the following conditions are satisfied:

  1. The member has attained the age of fifty (50) years (sixty-two (62) years for full benefit and fifty-five (55) years for a reduced benefit to a Tier 2 member); and

  2. The member retires concurrently under both this Retirement System and the reciprocal system; and

  3. At the time of retirement, the member is credited with such period of service under the reciprocal system.

• D. Solely for the purpose of meeting the minimum service requirements for qual-

ification for benefits and retirement allowances under this Retirement System, service shall also include service as an officer or employee of a reciprocal system, if all of the following conditions are satisfied:

1. The member has attained the age of fifty (50) years (sixty-two (62) years for full benefit and fifty-five (55) years for reduced benefit to a Tier 2 member); and

2. The member retires concurrently under both this Retirement System and the reciprocal system; and

3. The salary for service in the reciprocal system constitutes compensation of a member of this Retirement System for purposes of calculating final compensation. However, under no circumstances shall such service in a reciprocal system be included in the determination of service credit for qualification for medical benefits provided under Part 16 of this Chapter or for qualification for dental benefits provided under Part 17 of this Chapter.

• E. A member shall be retired for disability and receive a retirement allowance based on the service credited to the member at the time of retirement during any period in which the member receives a disability retirement allowance under a reciprocal system, subject to the following limitations:

  1. Such allowance shall not exceed an amount which when added to the allowance paid under the reciprocal system equals the allowance which would be paid for a nonserviceconnected (nonindustrial) disability if all the member's service had been credited under the reciprocal system; and

T3:271

SAN JOSÉ CODE

§ 3.28.2420

2. Such allowance shall in no event be less than an annuity which is the actuarial equivalent of the member's contributions plus interest accumulated thereon calculated as of the retirement date, whether or not the disability is for service-connected (industrial) reasons.

• F. The survivorship benefits or death benefits for a member who dies from nonservice-connected (nonindustrial) causes as a member of a reciprocal system shall not exceed an amount which when added to the survivorship and death benefits paid for such member under the reciprocal system equals the maximum death benefit payable under that system, subject to the following limitations:

  1. Such survivorship and death benefits shall be at least the amount of the member's accumulated contributions plus the interest accrued thereon calculated as of the date of death; and

  2. If death is caused by service-connected (industrial) injury or disease in the reciprocal system, the survivorship and death benefits shall be the amount of the member's accumulated contributions plus interest accrued thereon calculated as of the date of death.

• G. Notwithstanding the rest of this Section 3.28.2420, employees hired or rehired on or after September 30, 2012, shall be eligible for the benefits under the reciprocal agreement with CalPERS that are in effect at the time of the employee's retirement.

(Ords. 24682, 29120, 29904.)

• A. Notwithstanding Section 3.28.790, a former member of this Retirement System who terminated City employment, other than for retire-

ment or death, and who withdrew his or her accumulated contributions and the accrued interest may redeposit such withdrawn contributions and accrued interest and become eligible for the benefits under this Part 21 if the following requirements are satisfied:

1. The former member meets the requirements of Section 3.28.2410.

2. The former member redeposits all contributions and accrued interest previously withdrawn plus the interest that would have been earned by such contributions and interest, at the retirement fund's actual earnings rate, had they remained on deposit in the retirement fund.

3. Such redeposit is made within the time and in the manner prescribed by the Board, such time not to extend beyond the date of such former member's retirement from this Retirement System or from a reciprocal system, whichever first occurs.

• B. In the event the former member begins redeposit under this Section but before all the amounts specified in paragraph 2. of subsection A. above have been redeposited, the former member dies or retires from this Retirement System or a reciprocal system:

  1. Such amounts as have been redeposited shall be paid to the former member's designated beneficiary or, if no beneficiary has been designated, to the former member's estate in the event of the former member's death; or

  2. Such amounts as have been redeposited shall be paid to the former member in the event of the former member's retirement.

• C. This Section 3.28.2430 does not authorize the redeposit of contributions by a member of this Retirement System in any case where the member withdrew contributions upon separation from City service, but did not redeposit the contributions upon the member's reem-

T3:272

PERSONNEL

§ 3.28.2500

ployment. Redeposits of contributions upon reemployment shall be governed by Section 3.28.790.

• D. This Section 3.28.2430 shall apply to Tier 2 members; provided, however, Tier 2 members making redeposits shall be responsible for paying the entire cost of the service credit purchase.

(Ords. 24682, 25031, 29120, 29904.)

On the request of a reciprocal system, the board shall supply information and data necessary for administration of the reciprocal system as it is affected by membership in and service credited under this retirement system.

(Ord. 24682.)

Interpretations of the provisions of this Part 21 shall be made with reference to interpretations that have been made relative to the California Public Employees' Retirement System - 1937 Act County Employees' Retirement reciprocal provisions upon which these provisions are based. (Ord. 24682.)

• a Tier 2 member, such costs shall be shared equally between the City and Tier 2 members.

• B. The contributions required of the City and Tier 2 members (as applicable), if any, shall be determined beginning with the actuarial valuation performed as of July 1, 1997, or, if no valuation is performed as of that date, the first valuation performed thereafter, except that an earlier actuarial valuation date may be used if the Retirement Board determines that earlier contributions are required to maintain the actuarial soundness of this Retirement System.

• C. Except as provided in Section 3.28.860.C, in determining the contributions required under this Section 3.28.2470, There shall be no offset to normal cost contribution rates in the event Plan funding exceeds one hundred percent (100%). Both the City and employees shall always make the full annual required Plan contributions as calculated by the Retirement Board actuaries which will be in compliance with applicable laws and will ensure the qualified status under the Internal Revenue Code.

• (Ords. 24682, 29120, 29904.)

Part 22

PURCHASE OF PRIOR SERVICE CREDIT

All rights under this Part 21 are subject to modification as may be necessary to conform to amendments to the Public Employees' Retirement Law or the County Employees' Retirement Law of 1937 as provided in California Government Code Section 20042.

(Ord. 24682.)

• A. For other than Tier 2 members, the City shall contribute to the retirement fund such amounts as are actuarially determined to be necessary to provide funding for all additional costs incurred by this Retirement System because of the payment of benefits provided by this Part 21 to any members which would not have been provided absent the adoption of this Part. For

Sections:

• A. Subject to the conditions, limitations and requirements set forth in this Part 22, a member of this system may purchase service credit in this system for eligible prior service. Notwithstanding the foregoing, Part 22 is not applicable to tier 2 members.

T3:273

SAN JOSÉ CODE

§ 3.28.2500

• B. For the purposes of this part, "eligible prior service" means service performed by the member as an employee of the city but for which the member was ineligible for service credit in this system at the time such service was performed and the service was in one of the following categories:

  1. Service performed in a part-time position for which the member would have received service credit had the employment been on a full-time basis; or

  2. Service pursuant to the emergency employment act; or

  3. Service pursuant to the comprehensive employment and training act; or

  4. Service performed on or after January 1, 1986, pursuant to an employment contract with the city. Eligible prior service does not include service performed as an independent contractor.

• C. In the event there is any dispute regarding a member's eligibility to purchase prior service credit, the amount of eligible prior service, the contributions and interest to be paid for the purchase of credit, or the amount of service to be credited to a member, the board shall determine the issue based on the relevant information presented to the board.

• (Ords. 25732, 29120.)

In order to purchase credit for eligible prior service, the member must satisfy all of the following conditions:

• A. The member must file a written election to purchase credit for eligible prior service in accordance with Section 3.28.2540.

• B. The member must pay into the retirement fund contributions for the prior service credit as provided in Section 3.28.2520, plus interest on the unpaid balance of all such contributions from the effective date of the member's election to the date the contributions are

fully paid into the retirement fund. The interest rate shall be the actuarial assumed interest rate, as adopted by the board, which is in effect on the effective date of the election.

• C. The member must be a member of this system who is making contributions to the retirement fund and is performing federated city service at all of the following times: on November 24, 1998, at the time of filing the written election and at all times during the contribution period.

• (Ord. 25732.)

• A. A member (other than a tier 2 member) may elect to purchase credit for all or a portion of the member's eligible prior service.

• B. For each year of eligible prior service the member elects to purchase, the member shall contribute to the retirement fund:

  1. An amount equal to the total contribution rate (city plus member) in effect as of the date the member files the election to purchase credit, multiplied by the member's compensation earnable as of the date of such election; or

  2. In the case of a member who will retire within one year of the date of the election to purchase eligible prior service, an amount equal to the total contribution rate (city plus member) in effect as of the date the member files the election to purchase credit, multiplied by the member's final compensation calculated as if the member retired as of the date of such election.

• C. Notwithstanding Subsection B. above, in the case of a member who served as a council assistant from November 2, 1996, through June 25, 1997, and who elects to purchase credit for eligible prior service for that period of time or

T3:274

PERSONNEL

§ 3.28.2540

any portion thereof, the city shall pay the portion of the required contributions that is equivalent to the product of:

1. The city's contribution rate in effect as of the date the member files the election to purchase credit;

2. The number of years of service during the period from November 2, 1996, through June 25, 1997, the member elects to purchase; and

3. The member's compensation, as described in paragraph B.1. or 2., as applicable. The member shall contribute the difference between the required contributions calculated in accordance with Subsection B. and the amount contributed by the city pursuant to this Subsection C.

• D. The contribution for any portion of a year of eligible prior service shall be prorated.

• E. Subject to any limits on annual contributions imposed by Section 415 of the Internal Revenue Code of 1986, as amended, any member who elects to purchase credit for eligible prior service may pay the contributions and interest specified in this section:

  1. In one lump sum within sixty days from and after the date said member files his or her written election to purchase credit; or

  2. In monthly or biweekly installments paid over a period of time not to exceed eight years; or

  3. A combination of a lump sum and installments.

• (Ords. 25732, 29120.)

• A. Except as provided in Subsection C. below, if a member other than a tier 2 member elects to purchase credit for eligible prior service and pay the contributions and interest specified in this part and subsequently does pay such contributions and interest, the member shall be-

come entitled to credit under this system for all the eligible prior service for which such contributions and interest are paid.

• B. If a member elects to purchase credit for eligible prior service and pay the contributions and interest specified in this part but fails to complete the required payments because of death before retirement, retirement, or other separation from city service, the member shall be credited with the amount of service which is determined by the board to be attributable to the contributions and interest paid as of the date of the member's death, retirement, or other separation from city service.

• C. If the calculation of contributions for the purchase of eligible prior service was based on the member's final compensation (as described in Section 3.28.2520B.2.), but the member fails to retire within one year of the date of the election, then the prior service credited to the member shall be reduced to the amount of service credit which the member would have purchased had the calculation been based on the member's compensation earnable as of the date of the election (as described in Section 3.28.2520B.1.).

(Ords. 25732, 29120.)

• A. The secretary of the retirement board shall cause written notice to be personally delivered or mailed to each member who has eligible prior service, informing such member of his or her rights under this part. If mailed, such notice shall be mailed to the member at the latest address as shown in the records of the human resources department of the city.

• B. If the member wishes to purchase credit for eligible prior service, the member shall file a written notice of election to do so with the secretary of the retirement board.

• C. If the member elects to pay the contributions and interest in installments, or if the member elects to make the lump sum payment by pay-

T3:275

SAN JOSÉ CODE

§ 3.28.2540

roll deduction, the member shall execute a binding irrevocable payroll authorization form authorizing the payment of the required contributions and interest by payroll deductions. The payroll authorization form shall be filed with the director of finance.

• D. If a member does not file the notice of election or the payroll authorization form, or elects to pay required contributions in a manner or at a time or times not authorized by this part, that member shall be deemed to have elected not to purchase credit for eligible prior service and shall be deemed to have elected not to have the prior service credited to him or her.

• E. The election to purchase credit for eligible prior service through payroll deductions and the authorization to make contributions by payroll deductions shall be irrevocable. During the time the irrevocable election is in effect, no direct payments from the member to the retirement fund shall be made by the member or accepted by this system.

• (Ord. 25732.)

• 3.28.2680 Combined account option.

• 3.28.2690 Alternate distribution option for alternate payee.

• 3.28.2700 Separate account option.

• 3.28.2710 Distribution of accumulated contributions in separate account.

• 3.28.2720 Participant's redeposit of contributions refunded to alternate payee.

• 3.28.2730 Monthly allowance for alternate payee.

• 3.28.2740 Monthly allowance for participant.

• 3.28.2750 Designation of beneficiary by alternate payee.

• 3.28.2760 No payments resulting in increased benefits.

• 3.28.2770 Disability retirement of participant.