Part 5.5

BENEFITS GENERALLY

Sections:

• 3.36.730 Benefit limitations.

• 3.36.735 Compensation limitation.

• 3.36.740 Service credit eligibility under plan-approved domestic relations orders.

• 3.36.745 Benefit clarifications.

• 3.36.746 Minimum distributions.

• 3.36.747 Vesting.

• A. General. Notwithstanding any other law, the benefits payable to any person who becomes a member of this plan on or after January 1, 1990, shall be subject to the limitations set forth in Section 415 of the Internal Revenue Code as applicable to governmental plans and as set forth in this Section 3.36.730.

• B. Prior to January 1, 1990. Notwithstanding any other law, the benefits payable to any person who became a member of this plan prior to January 1, 1990, shall be limited as provided in Section 415(b)(10) of the Internal Revenue Code to be no less than the accrued benefit of the member determined without regard to any benefit increases pursuant to any amendment of this plan adopted after October 14, 1987.

• C. Participation in other qualified plans: aggregation of limits. The 415(b) limit with respect to any member who at any time has been a member in any other defined benefit plan as defined in Section 414(j) of the Internal Revenue Code maintained by the member's employer in this plan shall apply as if the total benefits payable under all such defined benefit plans in which the member has been a member were payable from one plan.

• D. Basic 415(b) limitation.

  1. Before January 1, 1995, a member may not receive an annual benefit that exceeds the limits specified in Section 415(b) of the Internal Revenue Code, subject to the applicable adjustments in that section. On and after January 1, 1995, a member may not receive an annual benefit that exceeds the dollar amount specified in Section 415(b)(1)(A) of the Internal Revenue Code, subject to the applicable adjustments in Section 415(b) of the Internal Revenue Code and subject to any additional limits that may be specified in the retirement system. In no event shall a member's benefit payable under the plan in any limitation year be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code and the regulations thereunder.

  2. For purposes of Section 415(b) of the Internal Revenue Code, the "annual benefit" means a benefit payable annually in the form of a straight life annuity (with

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  - no ancillary benefits) without regard to the benefit attributable to after-tax employee contributions (except pursuant to Section 415(n) of the Internal Revenue Code) and to rollover contributions (as defined in Section 415(b)(2)(A) of the Internal Revenue Code). The "benefit attributable" shall be determined in accordance with treasury regulations. 

• E. Adjustments to basic 415(b) limitation for form of benefit.

  1. If the benefit under the plan is other than the form specified in Subsection D.2., then the benefit shall be adjusted so that it is the equivalent of the annual benefit, using factors prescribed in treasury regulations.

2. If the form of benefit without regard to the automatic benefit increase feature is not a straight life annuity or a qualified joint and survivor annuity, then the preceding sentence is applied by either reducing the Section 415(b) of the Internal Revenue Code limit applicable at the annuity starting date as specified in Subsection c. below, or adjusting the form of benefit to an actuarially equivalent amount (determined using the assumptions specified in Treasury Regulation Section 1.415(b)-1(c)(2)(ii)) that takes into account the additional benefits under the form of benefit as follows:

   • a. For a benefit paid in a form to which Section 417(e)(3) of the Internal Revenue Code does not apply (i.e., a monthly benefit), the actuarially equivalent straight life annuity benefit that is the greater of:

     • i. The annual amount of the straight life annuity (if any) payable to the member under the plan commencing at the same annuity starting date as the form of benefit to the member; or

   • ii. The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the form of benefit payable to the member, computed using a five percent interest assumption (or the applicable statutory interest assumption) and (i) for years prior to January 1, 2009, the applicable mortality tables described in Treasury Regulation Section 1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent revenue ruling modifying the applicable provisions of Revenue Rulings 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in Section 417(e)(3)(B) of the Internal Revenue Code (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing Section 417(e)(3)(B) of the Internal Revenue Code);

• b. For a benefit paid in a form to which Section 417(e)(3) of the Internal Revenue Code applies (i.e., a lump sum benefit), the actuarially equivalent straight life annuity benefit that is the greatest of:

  • i. The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable, computed using the interest rate and mortality table, or tabular factor, specified in the plan for actuarial experience;

  • ii. The annual amount of the straight life annuity commenc-

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ing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable, computed using a five and onehalf percent interest assumption (or the applicable statutory interest assumption) and (i) for years prior to January 1, 2009, the applicable mortality table for the distribution under Treasury Regulation Section 1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent revenue ruling modifying the applicable provisions of Revenue Ruling 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in Section 417(e)(3)(B) of the Internal Revenue Code (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing Section 417(e)(3)(B) of the Internal Revenue Code); or

iii. The annual amount of the straight life annuity commencing at the annuity starting date that has the same actuarial present value as the particular form of benefit payable (computed using the applicable interest rate for the distribution under Treasury Regulation Section 1.417(e)-1(d)(3) (the thirty-year Treasury rate (prior to January 1 2007, using the rate in effect for the month prior to retirement, and on and after January 1, 2007, using the rate in effect for the first day of the plan year with a

one-year stabilization period)) and (i) for years prior to January 1, 2009, the applicable mortality rate for the distribution under Treasury Regulation Section 1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent revenue ruling modifying the applicable provisions of Revenue Ruling 2001-62), and (ii) for years after December 31, 2008, the applicable mortality tables described in Section 417(e)(3)(B) of the Internal Revenue Code (Notice 2008-85 or any subsequent Internal Revenue Service guidance implementing Section 417(e)(3)(B) of the Internal Revenue Code), divided by 1.05.

  - c. The actuary may adjust the 415(b) limit at the annuity starting date in accordance with the above Subsections a. and b. 

• F. Benefits for which no adjustment of 415(b) limit is required. For purposes of this section, the following benefits shall not be taken into account in adjusting these limits:

  1. Any ancillary benefit which is not directly related to retirement income benefits;

  2. That portion of any joint and survivor annuity that constitutes a qualified joint and survivor annuity;

  3. Any other benefit not required under Section 415(b)(2) of the Internal Revenue Code and treasury regulations thereunder to be taken into account for purposes of the limitation of Section 415(b)(1) of the Internal Revenue Code.

• G. Other adjustments in 415(b) limitation.

  1. In the event the member's retirement benefits become payable before age sixty-

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• two, the limit prescribed by this section shall be reduced in accordance with treasury regulations pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that such limit (as so reduced) equals an annual straight life benefit (when such retirement income benefit begins) which is equivalent to a one hundred sixty thousand dollar (as adjusted) annual benefit beginning at age sixty-two.

  2. In the event the member's benefit is based on at least fifteen years of service as a full-time employee of any police or fire department, on fifteen years of military service, or on any combination of these two types of service, the adjustments provided for in Subsection 1. above shall not apply.

  3. The reductions provided for in Subsection 1. above, shall not be applicable to pre-retirement disability benefits or preretirement death benefits.

• H. Less than ten years of service adjustment for 415(b) limitations. The maximum retirement benefits payable to any member who has completed less than ten years of participation shall be the amount determined under Subsection D. multiplied by a fraction, the numerator of which is the number of the member's years of service and the denominator of which is ten. The reduction provided by this subsection cannot reduce the maximum benefit below ten percent. The reduction provided for in this subsection shall not be applicable to preretirement disability benefits or pre-retirement death benefits.

• I. Ten thousand dollar limit. Notwithstanding the foregoing, the retirement benefit payable with respect to a member shall be deemed not to exceed the 415 limit if the benefits payable, with respect to such member under this plan and under all other qualified defined benefit pension plans to which the member's employer contributes, do not exceed ten thou-

sand dollars for the applicable limitation year and for any prior limitation year and the employer has not at any time maintained a qualified defined contribution plan in which the member participated.

• J. Effect of COLA without a lump sum component on 415(b) testing. Effective on and after January 1, 2008, for purposes of applying the limits under Section 415(b) of the Internal Revenue Code (the "limit") to a member with no lump sum benefit, the following shall apply:

  1. A member's applicable limit shall be applied to the member's annual benefit in the member's first limitation year without regard to any cost of living adjustments under Section 3.44.150;

  2. To the extent that the member's annual benefit equals or exceeds the limit, the member shall no longer be eligible for cost of living increases until such time as the benefit plus the accumulated increases are less than the limit; and

  3. Thereafter, in any subsequent limitation year, a member's annual benefit, including any cost of living increases under Section 3.44.150, shall be tested under the then applicable benefit limit, including any adjustment to the Section 415(b)(1)(A) of the Internal Revenue Code dollar limit under Section 415(d) of the Internal Revenue Code, and the regulations thereunder.

• K. Reduction of benefits priority. Reduction of benefits and/or contributions to all plans, where required, shall be accomplished by first reducing the member's benefit under any defined benefit plans in which the member participated, such reduction to be made first with respect to the plan in which the member most recently accrued benefits, and thereafter in such priority as shall be determined by the plan and the plan administrator of such other plans, and next, by reducing or allocating excess forfeitures for defined contribution plans

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• in which the member participated, such reduction to be made first with respect to the plan in which the member most recently accrued benefits and thereafter in such priority as shall be established by the plan and the plan administrator for such other plans provided, however, that necessary reductions may be made in a different manner and priority pursuant to the agreement of the plan and the plan administrator of all other plans covering such member.

• L. Notwithstanding Subsections A. and B. above, in the event Section 415 of the Internal Revenue Code is repealed, amended or qualified, by statute or otherwise, to permit all or any members of this plan or such members' beneficiaries to receive benefits that are not subject to the limitations set forth in Section 415, then immediately thereupon, such benefits shall be paid to such members or their beneficiaries.

• M. Section 415(c) limitations on contributions and other additions. After-tax member contributions or other annual additions with respect to a member may not exceed the lesser of forty thousand dollars (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) or one hundred percent of the member's compensation. Annual additions are defined to mean the sum (for any year) of employer contributions to a defined contribution plan, member contributions, and forfeitures credited to a member's individual account. Member contributions are determined without regard to picked-up employee contributions that are paid to the retirement system.

  • "Compensation" for purposes of this section, subject to annual limits under Section 401(a)(17) of the Internal Revenue Code, shall be as defined under Treasury Regulation Section 1.415(c).

• (Ords. 23284, 23316, 28773, 28886.)

• A. Notwithstanding any other law, except as provided in Subsection A.3 and B. below, for any

person who becomes a member of this plan on or after January 1, 1996, the annual compensation taken into account under this plan shall be subject to the limitation set forth in Section 401(a)(17) of the Internal Revenue Code of 1986, as amended.

1. Effective with respect to plan years beginning on and after January 1, 1996, and before January 1, 2002, the annual compensation of a plan member which exceeds one hundred fifty thousand dollars (as adjusted for cost-of-living increases under Section 401(a)(17)(B) of the Internal Revenue Code), shall be disregarded for purposes of computing employee contributions to or benefits due from the retirement plan. Effective only for the 1996 plan year, in determining the compensation of an employee eligible for consideration under this provision, the rules of Section 414(g)(6) of the Internal Revenue Code shall apply, except that in applying such rules, the term "family" shall include only the spouse of the member and any lineal descendants of the employee who have not attained age nineteen before the close of the year.

2. Effective with respect to plan years beginning on and after January 1, 2002, the annual compensation of a plan member which exceeds two hundred thousand dollars (as adjusted for cost-of-living increases in accordance with Section 401(a)(17)(B) of the Internal Revenue Code), may not be taken into account in determining benefits or employee contributions due for any plan year. "Annual compensation" means compensation during the plan year or such other consecutive twelve-month period over which compensation is otherwise determined under the plan (the determination period). The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that

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  - begins with or within such calendar year. If the determination period consists of fewer than twelve months, the annual compensation limit is an amount equal to the otherwise applicable annual compensation limit multiplied by a fraction, the numerator of which is the number of months in the short determination period, and the denominator of which is twelve. If the compensation for any prior determination period is taken into account in determining a plan member's contributions or benefits for the current plan year, the compensation for such prior determination period is subject to the applicable annual compensation limit in effect for that prior period. 

3. As used in this Paragraph 3., the term "eligible member" means a person who first became a member of the retirement plan prior to January 1, 1996. Pursuant to Section 13212(d)(3)(A) of OBRA '93, and the regulations issued under that section, eligible members are not subject to the limits of Section 401(a)(17) of the Internal Revenue Code.

• B. In the event Section 401(a)(17) of the Internal Revenue Code is repealed, amended or qualified, by statute or otherwise, to relieve all or any members of this plan described in Subsection A. from the limitation set forth in Section 401(a)(17), then, for those members no longer subject to the limitation, the annual compensation taken into account under the plan shall be calculated without such limitation.

• (Ords. 25000, 28886.)

• A. This section shall apply only in a case in which a court has ordered an amount or percentage of the service credit of a participant to be credited to an alternate payee's separate ac-

count pursuant to a plan-approved domestic relations order which meets the requirements of Section 3.36.3600 of this chapter.

• B. Solely for the purpose of meeting the minimum service requirements for a participant's or eligible survivor's qualification for retirement benefits, monthly allowances, survivors' benefits, medical benefits and dental benefits under this Plan, the service credit of the participant shall be aggregated with the service credit awarded the alternate payee.

• C. Solely for the purpose of determining whether the participant is eligible to retire in order that an alternate payee may begin distribution from the alternate payee's separate account under Section 3.36.3630, the service credit of the participant shall be aggregated with the service credit awarded the alternate payee.

• D. For the purposes of this section, the terms "participant" and "alternate payee" shall have the meanings set forth in Part 17 of this chapter.

• (Ords. 25989, 27712.)

• A. The purpose of the plan is to secure contributions for the city and from employees, and to distribute plan assets only to members, retired members, and their beneficiaries, pursuant to the plan's plan of benefits and to pay reasonable expenses of administration.

• B. Prior to the satisfaction of all liabilities with respect to members, former members and their beneficiaries, no part of the plan's assets or income may be used for, or diverted to, purposes other than for the exclusive benefit of members, former members, or their beneficiaries.

• C. In conformity with Section 410(a)(8) of the Internal Revenue Code, forfeitures arising from termination of employment, death, or for any other reason will not be applied to increase the benefits any member, former member, or ben-

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eficiary would otherwise have received from the plan at any time prior to the termination of the plan.

• D. Upon termination of the plan or upon the complete discontinuance of contributions to the plan, the rights of each member, former member and beneficiary to benefits accrued to the date of such termination or discontinuance are non-forfeitable.

• (Ords. 27768, 28886.)

Notwithstanding any other provision of this chapter, the distribution of a retirement allowance shall be subject to a good faith interpretation of the minimum distribution rules of Section 401(a)(9) of the Internal Revenue Code and the regulations promulgated thereunder, as applicable to a governmental plan within the meaning of Section 414(d) of the Internal Revenue Code. In addition, payment of a member's retirement allowance shall commence no later than the later of the following:

• A. The April 1 following the end of the calendar year in which the member attains age seventy and one-half; or

• B. The April 1 following the end of the calendar year in which the member retires. If a member fails to apply for retirement benefits by the later of either of those dates, the board shall begin distribution of the monthly benefit in the form provided under the applicable provision of Part 6 of Chapter 36.

• C. The member's entire interest must be distributed over the member's life or the lives of the member and a designated beneficiary, or over a period not extending beyond the life expectancy of the member, or of the member and a designated beneficiary.

• D. For purposes of this section, the retirement plan pursuant to a qualified domestic relations order, may establish separate benefits for a member and nonmember.

• E. If a member dies after the required distribution of benefits has begun, the remaining portion of the member's interest must be distributed at least as rapidly as under the method of distribution before the member's death.

• F. If a member dies before required distribution of the member's benefits has begun, the member's entire interest must be distributed within five years of his death, unless it is to be distributed in accordance with the following rules:

  1. If the member's surviving spouse is the sole designated beneficiary, the member's remaining interest in the plan is distributed or begins to be distributed by December 31 of the calendar year immediately following the calendar year in which the member died or by December 31 of the calendar year in which the participant would have attained age seventy and one-half, if later, and if the surviving spouse dies before the distribution to the surviving spouse begins, this section shall be applied as if the surviving spouse were the plan member; or

  2. If the member's surviving spouse is not the sole designated beneficiary, the member's remaining interest is to be distributed over the life of the designated beneficiary or over a period not extending beyond the life expectancy of the designated beneficiary; and such distribution begins no later than December 31 of the calendar year immediately following the calendar year of the member's death.

• G. The amount of an annuity paid to a member's beneficiary may not exceed the maximum determined under the incidental death benefit requirement of Section 401(a)(9)(G) of the Internal Revenue

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Code, and the minimum distribution incidental benefit rule under Treasury Regulation Section 1.401(a)(9)-6, Q&A-2.

• H. The death and disability benefits provided by the retirement system are limited by the incidental benefit requirement set forth in Section 401(a)(9)(G) of the Internal Revenue Code and Treasury Regulation Section 1.401-1(b)(1)(i) or any successor regulation thereto. These incidental death and disability benefits include any lump sum death benefits and any disability benefits. As a result, the total death or disability benefits payable may not exceed twenty-five percent of the cost for all of the members' benefits received from the retirement plan.

• I. Notwithstanding the other provisions of this rule or the provisions of the treasury regulations, benefit options may continue so long as the option satisfies Section 401(a)(9) of the Internal Revenue Code based on a reasonable and good faith interpretation of that section.

• (Ords. 27768, 28886.)

• A. A member shall be one hundred percent vested in his or her service retirement benefit upon attaining eligibility for a service retirement benefit under the applicable provisions of the retirement system.

• B. A plan member shall be one hundred percent vested in his or her accumulated contributions at all times.

• C. An affected plan member shall be one hundred percent vested in his or her accrued benefit, to the extent then funded, in the event the retirement system is terminated in whole or in part or contributions are completely discontinued.

• D. For the purpose of this Section 3.36.747 "vested" shall mean the nonforfeitable right to the benefit the member has accrued.

• E. Nothing contained in this Section 3.36.747 shall be construed or interpreted to limit modification of benefits, to the extent that such modification is otherwise allowed under federal and state law.

• F. Any changes to tier 2 retirement or postemployment benefits enacted after those adopted March 31, 2017 that result in benefit increases or decreases shall only be applied prospectively and except for the changes adopted on March 31, 2017 shall not have retroactive effect. All such changes shall be subject to applicable California pension and other laws. Without limitation of any type, the city shall have the right to make any modifications, alterations or amendments necessary or appropriate to maintain the tax qualification of the benefits provided under this retirement plan to tier 2 members.

(Ords. 28886, 29266, 29879.)

Part 6

RETIREMENT FOR SERVICE

Sections:

• 3.36.750 Voluntary retirement for service.

• 3.36.751 Retired member not to be reemployed in city service unless first reinstated or employed pursuant to Section 3.28.757.

• 3.36.755 Reinstatement from retirement for service.

• 3.36.756 Reemployment of retired police member to perform city services other than police and fire department retirement plan services.

• 3.36.757 Limited reemployment of retired person.

• 3.36.760 Service retirement for members by reason of contract with County of Santa Clara Central Fire Protection District.

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• 3.36.770 Involuntary retirement for service - Discretion of board.

• 3.36.780 Compulsory retirement for service at age seventy.

• 3.36.790 Service retirement allowance - Retirement prior to August 1, 1968.

• 3.36.800 Service retirement allowance - Retirement on or after August 1, 1968, or on or after January 1, 1970, at age fifty-five or more, but prior to February 4, 1996.

• 3.36.805 Service retirement allowance - Retirement on or after February 4, 1996, but prior to February 4, 2000.

• 3.36.807 Service retirement allowance - Retirement on or after February 4, 2000 but before July 1, 2008 for members employed with the fire department and before July 1, 2006 for members employed with the police department.

• 3.36.808 Service retirement allowance for members employed in fire department - Retirement on or after February 4, 2000.

• 3.36.809 Service retirement allowance for members employed in police department - Retirement on or after February 4, 2000.

• 3.36.810 Service retirement allowance - Retirement on or after August 1, 1968, at age fifty to fifty-seven.

• 3.36.820 Eligibility conditions.

• 3.36.830 Termination of service retirement benefits for treason or conviction of felony.

• A. Prior to August 1, 1968, a member shall be retired for service, upon his written application to the retirement board, if he has attained fifty-five years of age and is entitled to be credited with twenty or more years of service.

• B. On or after August 1, 1968, subject to the provisions of this chapter, a member, other than a tier 2 member, shall be retired for service, upon his written application to the retirement board, if he has attained fifty years of age and is entitled to be credited with twenty or more years of service, or if he is entitled to be credited with thirty or more years of service regardless of whether he has attained fifty years of age.

• C. On or after August 4, 2013, subject to the provisions of this chapter, a tier 2 member shall be retired for service, upon his written application to the retirement board, if:

  1. Such tier 2 member has attained fiftyseven years of age and is entitled to be credited with five or more years of service; or

  2. Such tier 2 member has attained fifty years of age and is entitled to be credited with five or more years of service. However, the tier 2 member's benefit shall be reduced by a factor of seven percent for each year the tier 2 member retires before age fifty-seven, prorated to the closest month. The reduced benefit shall be determined by the actuary for the police and fire retirement plan. The early retirement reduction factors used are shown below:

(Prior code § 2903.175; Ords. 21686, 29266, 29879.)

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A person retired for service pursuant to any of the provisions of this Part 6 shall not be retained by the City to render any City service unless the person is first reinstated from service retirement pursuant to the provisions of this Part, except:

• A. Where the person renders service as an independent contractor; or

• B. Where the person is reemployed pursuant to Section 3.36.757.

• (Ord. 29907.)

• A. A person who has been retired for service pursuant to the provisions of this Part 6 may apply to the retirement board, in writing, for reinstatement from such retirement for the purpose of reentering city service. The board may reinstate the person from retirement if it finds that his or her age at the date of his application is at least six months less than seventy years of age. 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.

• B. Upon reinstatement from service retirement as aforesaid, the service retirement allowance of the reinstated person shall be canceled forthwith, and the person shall again become a member of this plan as of the date of the reinstatement. If reinstatement occurs on or after August 4, 2013 and the individual meets the definition of tier 2 member under Section 3.36.020.15, the person will re-enter the plan as a tier 2 member with respect to benefits that will be accrued as of his/her reinstatement date. Upon reinstatement, if the person has attained age fifty and has at least ten years of service credit, the person shall regain credit for those years of service for which the person was entitled to credit as of the time he or she retired for service in the manner described in Subsection C. below.

• C. If a person with city service prior to August 4, 2013, who has been retired is reinstated to city service on or after August 4, 2013 and meets the definition of tier 2 member in Section 3.36.020.15, upon subsequent retirement the amount of that tier 2 member's retirement allowance shall be calculated by applying the accrual rate or rates for the number of years of city service earned prior to becoming a tier 2 member and applying the accrual rates described in Section 3.36.808 or 3.36.809, as applicable, corresponding with the number of years as a tier 2 member using the tier 2 member's final compensation as a tier 2 member and applying all other provisions applicable to tier 2 members in determining the benefit.

• (Ords. 29266, 29879.)

• A. If a person who has been retired for service pursuant to the provisions of this Part 6 is retained or reemployed by the City, other than as an independent contractor or pursuant to Section 3.36.757, to render any service which is not City service under this Part 6, said person's service retirement allowance shall be suspended as of the effective date of such reemployment and shall remain suspended while the person is retained or reemployed to perform such service. Upon cessation of such reemployment, the person's service retirement allowance shall be reinstated.

• B. The provisions of this Section shall not apply to the election or appointment of any retired person to the City Council or to any board or commission of the City.

• (Ord. 29907.)

• A. A person who has been retired under this system, for service or disability, may be employed

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by the City to perform City service on a temporary basis without reinstatement from retirement where the employment does not exceed one hundred twenty working days or nine hundred sixty hours, whichever is greater, in any payroll calendar year. For the purposes of this provision, "payroll calendar year" means the twelve-month period commencing on the first day of the first pay period for active City employees.

• B. The procedures for the employment of a retired person under this Section shall be in accordance with the procedures set forth in the City administrative policy manual.

• C. The employment of a person pursuant to this Section shall not operate to reinstate the person as a member of this system. The person shall not earn service credit in this system for any period of such reemployment, nor shall either the person or the City make any contributions to this system on account of such employment.

• D. The employment of a person pursuant to this Section shall not operate to terminate or suspend the retirement allowance otherwise payable to such person.

• E. A person employed pursuant to this Section shall not be entitled to a disability retirement from the position in which the person is reemployed.

• F. If the Internal Revenue Service determines that a reemployment program such as that described in this Section cannot be implemented without placing a retirement system out of conformity with the qualified plan requirements of the Internal Revenue Code (Title 26 of the United States Code), this Section shall become inoperative and any employment of a person pursuant to this Section shall be terminated immediately.

(Ord. 29907, 30225.)

Editor’s note— Ord. No. 30225, adopted March 12, 2019, amended § 3.36.757, and in so doing changed the title of said section from "Limited

Reemployment of Retired Person From the Police Department" to "Limited Reemployment of Retired Person," as set out herein.

Notwithstanding any other provisions of this chapter and Chapters 3.20 through 3.32, 3.40 and 3.44, any person who does not qualify for service retirement under any other provisions of this chapter and Chapters 3.20 through 3.32, 3.40 and 3.44 and becomes a member of this system pursuant to an "Agreement Between the City of San José and the Santa Clara County Central Fire Protection District Providing for the Furnishing by City of Certain Fire Services Within a Portion of the Service Area of said District," dated August 16, 1977, shall be retired for service, upon his written application to the retirement board, if he has attained fifty-five years of age, and shall be paid from the retirement fund a monthly allowance equal to 2.5 percent of his final compensation for each full year of service; provided, however, that in no event shall his monthly allowance exceed a maximum of seventy-five percent of his final compensation. In computing the amount of allowance payable, pro rata credit shall be given for a portion of a full year. If the said person qualifies for service retirement or is eligible for retirement benefits under any other provision of this chapter and Chapters 3.20 through 3.32, 3.40 and 3.44, he or his beneficiaries may avail themselves of such other provisions at their option in place of the benefits herein provided by this section and Sections 3.36.1260, 3.36.1350, 3.36.1360 and 3.44.140; provided, that if said person is credited with less than twenty years of service at the time he wishes to retire for service or at the time his beneficiaries are eligible for benefits, said person must retire under this section and receive benefits pursuant to Sections 3.36.1260, 3.36.1350, 3.36.1360 and 3.44.140.

(Prior code § 2903.175(a); Ord. 19123.)

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§ 3.36.770

Subject to the provisions of this chapter, the retirement board, on its own motion, by a vote of not less than four-fifths of the total authorized membership of the board, may retire a member (other than a tier 2 member) for service, notwithstanding the fact that such member may not have requested or consented to or is opposed to such retirement, if such member has attained fifty-five years of age and is entitled to be credited with twenty or more years of service, or if such member is entitled to be credited with thirty or more years of service, regardless of whether he has attained fiftyfive years of age.

Subject to the provisions of this chapter, the retirement board, on its own motion, by a vote of not less than four-fifths of the total authorized membership of the board, may retire a tier 2 member for service, notwithstanding the fact that such member may not have requested or consented to or is opposed to such retirement, if such tier 2 member has satisfied the requirements of Section 3.36.750C.1. (Prior code § 2903.176; Ords. 21686, 29266.)

• A. Subject to the provisions of this Chapter 3.36, a member shall and must be retired for service upon attaining the age of seventy years regardless of the number of years of service for which such member is entitled to credit. Each such retirement shall be effective as of the date such member attains the age of seventy years.

• B. Nothing hereinabove contained in this section shall be deemed to deprive a member of such right, if any, as he may have to retire at age seventy for disability under and pursuant to the provisions of the following Part 7 of this chapter if he qualifies and is eligible for disability retirement under the provisions of said Part 7; provided, however, that if he retires pursuant to the provisions of Part 7, he shall be entitled only to such retirement benefits as are provided by the provisions of said Part 7,

and shall not be entitled to any benefits whatsoever under the provisions of this section of this Part 6.

(Prior code § 2903.177; Ord. 21732.)

Subject to the provisions of this Chapter 3.36, if a member retired for service prior to August 1, 1968, pursuant to the provisions of Sections 3.36.750, 3.36.770 or 3.36.780, he shall be paid from and after the date of his retirement and during the remainder of his lifetime, from the retirement fund, a monthly service retirement allowance equal to fifty percent of his final compensation. (Prior code § 2903.178.)

• 3.36.800 Service retirement allowance - Retirement on or after August 1, 1968, or on or after January 1, 1970, at age fifty-five or more, but prior to February 4, 1996.

• A. Subject to the provisions of this Chapter 3.36, if a member retired for service on or after August 1, 1968, but before January 1, 1970, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, and if in addition such member had attained the age of fifty-five years as of the date of commencement of retirement, then he or she shall be paid from the retirement fund, from and after the date of retirement and during the remainder of his or her lifetime, a monthly service retirement allowance equal to fifty percent of his or her final compensation plus one and two-thirds percent of his or her final compensation for each full year of service in excess of the first twenty years of service for which the member is entitled to credit; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of sixty-six and two-thirds percent of the member's final compensation. In computing the amount of allowance payable for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

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• B. Subject to the provisions of this Chapter 3.36, if a member retired or retires for service on or after January 1, 1970, but before February 4, 1996, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, and if, in addition, the member attained or shall have attained the age of fifty-five years as of the date of commencement of retirement, or if the member had been entitled to thirty years of service regardless of whether the member had attained the age of fifty-five years, then he or she shall be paid from the retirement fund the following monthly service retirement allowance:

  1. From and after the date of retirement to September 1, 1970, the monthly service retirement allowance shall be equal to fifty percent of his or her final compensation plus one and two-thirds percent of his or her final compensation for each full year of service in excess of the first twenty years of service for which the member is entitled to credit; provided, however, that in no event shall the monthly service retirement allowance during such period exceed a maximum of sixty-six and two-thirds percent of the member's final compensation; and

final compensation plus one and two-thirds percent of his or her final compensation for each full year of service in excess of the first twenty years of service for which the member is entitled to credit; provided, however, that in no event shall the monthly service retirement allowance during such period exceed a maximum of sixty-six and two-thirds percent of the member's final compensation; and

2. During the remainder of his or her lifetime from and after September 1, 1970, the monthly service retirement allowance shall equal fifty percent of his or her final compensation plus two and one-half percent of his or her final compensation for each full year of service in excess of the first twenty years of service for which the member is entitled to credit; provided, however, that in no event shall the monthly service retirement allowance during said period exceed a maximum of seventyfive percent of the member's final compensation.

• C. For the purposes of this Section 3.36.800, "service" means service performed for the city and for which the member is entitled to credit un-

der the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3030.

• D. In computing the amount of allowance payable for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

(Prior code § 2903.179; Ords. 21686, 25614.)

• A. Subject to the provisions of this Chapter 3.36, if a member retired or retires for service on or after February 4, 1996, but prior to February 4, 2000, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, then he or she shall be paid from the retirement fund a monthly service retirement allowance equal to two and one-half percent of his or her final compensation for each of the first twenty years of service plus three percent of his or her final compensation for each full year of service in excess of the first twenty years of service; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of eighty percent of the member's final compensation.

• B. For the purposes of this Section 3.36.805, "service" means service performed for the city and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

• C. In computing the amount of allowance payable for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

(Ords. 25614, 26229.)

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• 3.36.807 Service retirement allowance - Retirement on or after February 4, 2000 but before July 1, 2008 for members employed with the fire department and before July 1, 2006 for members employed with the police department.

• A. Subject to the provisions of this Chapter 3.36, if a member retired or retires for service on or after February 4, 2000 but before July 1, 2008 for members employed with the fire department and before July 1, 2006 for members employed with the police department, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, then he or she shall be paid from the retirement fund a monthly service retirement allowance equal to two and one-half percent of his or her final compensation for each of the first twenty years of service, plus three percent of his or her final compensation for each of the next five full years of service, plus four percent of his or her final compensation for each full year of service in excess of the first twenty-five years of service; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of eighty-five percent of the member's final compensation.

• B. For the purposes of this Section 3.36.807, "service" means service performed for the city and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

• C. In computing the amount of allowance payable for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

• (Ords. 26229, 29266, 29879.)

• 3.36.808 Service retirement allowance for members employed in fire department - Retirement on or after February 4, 2000.

• A. Subject to the provisions of this Chapter 3.36, if a member employed in the fire department retired or retires for service on or after February 4, 2000, but prior to July 1, 2008, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, then he or she shall be paid from the retirement fund a monthly service retirement allowance calculated in accordance with Section 3.36.807.

• B. Subject to the provisions of this Chapter 3.36, if a member employed in the fire department retired or retires for service on or after July 1, 2008, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, then:

  1. If the person was credited with less than twenty years of service credit at the time of retirement, he or she shall be paid from the retirement fund a monthly service retirement allowance equal to two and one-half percent of his or her final compensation for each year of service credit.

  2. If the person was credited with twenty or more years of service credit at the time of retirement, he or she shall be paid from the retirement fund a monthly service retirement allowance equal to three percent of his or her final compensation for each year of service credit; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

  3. A tier 2 member who retires for service on or after August 4, 2013, shall be paid from the retirement fund a monthly service retirement allowance determined based on an annual benefit equal to two and two-fifths percent of final compensation for each of the first twenty full years of city service, plus three percent of

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his or her final compensation for each full year of service between twenty-one and twenty-five years of city service, plus three and two-fifths percent of his or her final compensation for each full year of service in excess of twenty-five years of city service; provided, however that in no event shall the annual service retirement allowance exceed a maximum of eighty percent of such tier 2 member's final compensation. If the tier 2 member has attained age fifty but not reached age fiftyseven, the tier 2 member's benefit shall be reduced by a factor of seven percent for each year the tier 2 member retires before age fifty-seven, prorated to the closest month. The reduced benefit shall be determined by the actuary for the police and fire plan. The early retirement reduction factors used are shown below:

• C. For the purposes of this Section 3.36.808, "service" means service performed for the city and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

• D. In computing the amount of the allowance payable for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

• E. Tier 2 members shall be credited with one year of service for two thousand eighty or more hours of service rendered by the tier 2 member in any calendar year. The maximum service

credit for a tier 2 member in a calendar year shall not exceed one year. If a tier 2 member renders less than two thousand eighty hours in a calendar year, the tier 2 member shall be given credit for that portion of one year which the hours of service rendered by the member in such year bear to two thousand eighty hours of regular time worked (including paid leave and military leave, but not overtime). (Ords. 28300, 29511, 29879.)

• A. Subject to the provisions of this Chapter 3.36, if a member employed in the police department retired or retires for service on or after February 4, 2000, but prior to July 1, 2006, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, then he or she shall be paid from the retirement fund a monthly service retirement allowance calculated in accordance with Section 3.36.807.

• B. Subject to the provisions of this Chapter 3.36, if a member employed in the police department, other than a tier 2 member, retired or retires for service on or after July 1, 2006, pursuant to the provisions of Section 3.36.750, 3.36.770 or 3.36.780, then he or she shall be paid from the retirement fund a monthly service retirement allowance equal to two and one-half percent of his or her final compensation for each of the first twenty years of service plus four percent of his or her final compensation for each full year of service in excess of the first twenty years of service; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation. A tier 2 member who retires for service on or after August 4, 2013, shall be paid from the retirement fund a monthly service retirement allowance determined based on an annual benefit equal to two and two-

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fifths percent of final compensation for each of the first twenty full years of city service, plus three percent of his or her final compensation for each full year of service between twenty-one and twenty-five years of city service, plus three and two-fifths percent of his or her final compensation for each full year of service in excess of twenty-five years of city service; provided, however that in no event shall the annual service retirement allowance exceed a maximum of eighty percent of such tier 2 member's final compensation. If the tier 2 member has attained age fifty but not reached age fifty-seven, the tier 2 member's benefit shall be reduced by a factor of seven percent for each year the tier 2 member retires before age fifty-seven, prorated to the closest month. The reduced benefit shall be determined by the actuary for the police and fire plan. The early retirement reduction factors used are shown below:

• C. For the purposes of this Section 3.36.809, "service" means service performed for the city and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

• D. In computing the amount of allowance payable for service in excess of the first twenty years for other than tier 2 members, pro rata credit shall be given for a fraction of a full year.

• E. Tier 2 members shall be credited with one year of service for two thousand eighty or more

hours of service rendered by the tier 2 member in any calendar year. The maximum service credit for a tier 2 member in a calendar year shall not exceed one year. If a tier 2 member renders less than two thousand eighty hours in a calendar year, the tier 2 member shall be given credit for that portion of one year which the hours of service rendered by the member in such year bear to two thousand eighty hours of regular time worked (including paid leave and military leave, but not overtime). (Ords. 27721, 29266, 29879.)

• A. If a member, other than a tier 2 member, retires or is retired for service on or after August 1, 1968, and such member has attained fifty years of age but has not attained fifty-five years of age as of the date of commencement of his or her retirement, then he or she shall be paid as a monthly service retirement allowance from the retirement fund, from and after the date of his or her retirement and during the remainder of his or her lifetime, a reduced monthly allowance, as calculated pursuant to Subsection B. of this section, whenever such member meets either of the following conditions:

  1. The member retired on or after August 1, 1968, but prior to July 5, 1992, and as of the date of commencement of his or her retirement such member is entitled to be credited with twenty or more years of service but less than thirty years of service; or

  2. The member retired on or after July 5, 1992, and as of the date of commencement of his or her retirement, such member is entitled to be credited with twenty or more years of service but less than twenty-five years of service.

• B. The reduced monthly service retirement allowance for a member described in Subsection A.

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of this section shall be calculated using the interest rate and life expectancy tables used to value benefits in determining the actuarial equivalents of the optional settlements provided under Part 9.5 of this chapter and determined as follows:

1. First, there shall be determined the monthly retirement allowance to which the member would be entitled if he or she were to continue his or her employment and defer retirement until he or she attained the age of fifty-five years, assuming for such purpose that such member's final compensation upon retirement at age fifty-five were the same as his or her compensation at the time of his or her actual early retirement. The result is hereinafter referred to as the member's "unreduced allowance."

2. Second, there shall be determined, as of the date of the member's early retirement, the amount of such member's unreduced allowance, assuming that notwithstanding his or her early retirement such member does not become entitled to commence drawing his or her allowance until he or she attains the age of fifty-five years. Such amount shall be deemed to be equal to that proportion of the member's unreduced allowance which the amount of service for which he or she is entitled to credit at the time of his or her early retirement bears to the amount of service for which he or she would be entitled to credit if he or she were to continue his or her employment and defer retirement until he or she attained the age of fifty-five years. The result is hereinafter referred to as the member's "partially reduced allowance."

3. Finally, said member's partially reduced allowance shall be further reduced by that amount which the value of such partially reduced allowance as deferred to age fifty-five will purchase at the actual

age of retirement. The result is the reduced monthly service retirement allowance which the member is entitled to receive from and after the date of his or her early retirement.

• C. Also, if a member retires or is retired for service before attaining the age of fifty-five years, any and all death, survivorship and other allowances, benefits or payments to which a person, persons or estate may become entitled, after such member's death, under the provisions of Part 8 of this chapter, shall be reduced as provided in Section 3.36.1340 of Part 8.

• D. Notwithstanding the foregoing provisions regarding reduced monthly service allowances, any member who is not a tier 2 member, and retires or is retired for service on or after August 1, 1968, and who is entitled to be credited with thirty years or more of service, shall not be subject to the provisions regarding reduced monthly service allowances regardless of age.

• E. Notwithstanding the foregoing provisions regarding reduced monthly service allowances, any member who is not a tier 2 member and retires or is retired for service on or after July 5, 1992, and at the time of retirement has attained fifty years of age but has not attained fifty-five years and is entitled to be credited for twenty-five or more years of service but less than thirty years of service, shall not be subject to the provisions regarding reduced monthly service allowances.

• F. If a tier 2 member retires or is retired for service on or after August 4, 2013, and such tier 2 member has attained fifty years of age but has not attained fifty-seven years of age as of the commencement of his or her retirement, then he or she shall be paid a monthly service retirement allowance that is reduced by a factor of seven percent for each year between age fifty-seven and the tier 2 member's age at retirement, prorated to the closest month. The reduced benefit shall be determined by

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the actuary for the police and fire retirement plan. The early retirement reduction factors used are shown below:

• G. If a tier 2 member retires or is retired for service before attaining age fifty-seven, any and all death survivorship and other allowances, benefits or payments to which a person, persons or estate may become entitled, after such tier 2 member's death, under this chapter shall be reduced as provided in Section 3.36.1340.

(Prior code § 2903.180; Ords. 21686, 24092, 29266, 29879.)

No person shall be retired for service unless he is eligible therefor under and pursuant to the above sections of this Part 6. (Prior code § 2903.181.)

Any and all service retirement allowances otherwise payable to a person may be cancelled and terminated by the retirement board, in its sole discretion, if the recipient thereof should commit treason or be convicted of a felony. Such cancellation and termination shall not affect survivors' benefits and death benefits set forth in Part 8 of this chapter if such benefits would otherwise be payable. At any time after cancellation and termination of retirement allowances pursuant to this section, the board may in its sole discretion pay to the spouse and/or minor children under the age of eighteen of the convicted person all or any portion of the retire-

ment allowance which would have been payable to the convicted person, for such periods and subject to such conditions as the board in its sole discretion imposes and subject to the further right and power of the board to cancel such payments to the spouse and/or minor children at any time, in its sole discretion, with or without notice. Such payment to the spouse or minor children shall not be made until and unless application therefor shall have been made and the board shall have determined that the allowance or a portion thereof is required to provide the spouse or minor children with necessaries of life. (Prior code § 2903.182; Ord. 23807.)

Part 7

RETIREMENT FOR DISABILITY

Sections:

• 3.36.900 Definitions.

• 3.36.920 Situations where member is not entitled to disability retirement or disability retirement allowance.

• 3.36.930 Member not to receive both service retirement and disability retirement benefits.

• 3.36.940 Disability retirement - On board's motion.

• 3.36.950 Disability retirement - By request or application.

• 3.36.960 Medical examinations.

• 3.36.970 Disability retirement - Eligibility. 3.36.980 Determination as to whether disability is service-connected.

• 3.36.990 Retirement for nonservice-connected disability.

• 3.36.995 Nonservice-connected disability benefits.

• 3.36.1000 Retirement for service-connected disability.

• 3.36.1020 Service-connected disability benefits.

• 3.36.1030 Deduction of workers' compensation benefit amounts.

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3.36.1035 Reports of earnings from outside occupation.

• 3.36.1050 - 3.36.1070 Reserved.

• 3.36.1080 Medical examination of recipients - Allowance cancellation conditions.

3.36.1120 Failure or refusal to submit to medical examination.

• 3.36.1130 Payment of disability allowances to constitute return and withdrawal of contributions.

• 3.36.1140 Failure to reinstate recipient of a disability allowance to duty on cessation of disability.

3.36.1150 Termination of disability retirement benefits for treason or conviction of felony.

As used in this chapter:

• A. "Disability," "incapacity for the performance of duty," and "incapacitated for the performance of duty," as a basis for retirement, means disability of a member, short of death, of permanent or extended and uncertain duration, occurring while such member is a member of this system, as a result of injury or disease, which renders a person physically or mentally incapable of assuming the responsibilities and performing the duties of the position then held by him and of any other position in the same classification of positions to which the city may offer to transfer him, as determined by the independent medical panel or, upon appeal, by the administrative law judge, on the basis of competent medical opin-

ion. It does not mean or include mere inability to assume said responsibilities or perform said duties.

1. "Disability," "incapacity for the performing of duty," and "incapacitated for the performance of duty," as a basis for retirement, also means disability of a member, short of death, of permanent or extended and uncertain duration, occurring while such member is a member of this system, not as a result of injury or disease, which renders a person mentally incapable of assuming the responsibilities and performing the duties of the position then held by him and of any other person in the same classification of positions to which the city may offer to transfer him, as determined by the independent medical panel or, upon appeal, by the administrative law judge on the basis of competent medical opinion. It does not mean or include mere inability to assume said responsibilities or perform said duties; provided, however, that notwithstanding any other provisions of this Chapter 3.36, including Sections 3.36.990, 3.36.1000 and 3.36.1010, no member shall be deemed disabled or incapacitated within the meaning of this section unless at the time such disability occurs he shall be entitled to credit for at least ten years of service in this system.

2. The provisions of this section shall be deemed to cover any member of this system whose disability or incapacity for the performance of duty occurred on or after the first day of April, 1968; provided that no benefits shall be payable hereunder for any period prior to the filing of an application for disability retirement

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or prior to the date upon which the retirement board makes a motion pursuant to Section 3.36.940. If any person whose disability or incapacity for the performance of duty, as said terms are defined in this section, occurred on or after the first day of April, 1968, files or has filed an application for disability retirement prior to the effective date of this section, the retirement board may, subject to other provisions of this chapter, grant a disability retirement allowance commencing on the date of the filing of such application with the retirement board.

• B. "Nonservice-connected disability" means disability of a member other than a "service-connected disability."

• C. "Service-connected disability" means disability of a member as a result of injury or disease arising out of and in the course of such member's employment with the city.

(Prior code §§ 2903.200, 2903.200a, 2903.201, 2903.202; Ord. 29879.)

• A. Anything elsewhere in this chapter to the contrary notwithstanding, no person shall be entitled to any disability retirement or to any disability retirement allowance under the provisions of this chapter in any of the following situations as determined by the independent medical panel or, upon appeal, by the administrative law judge:

  1. Where the person's disability occurred before he or she became a member of this retirement system; or

  2. Where the person's disability occurs after he or she ceases to be a member of this retirement system or after he or she ceases to be an employee of the city; or

  3. Where the person's disability occurs while he or she is on leave of absence from city employment for any purpose, except as provided in Subsections B. and C. of this Section 3.36.920; or

  4. Where the person separated from city service on or after February 4, 2000, the person files an application for disability retirement on or after September 1, 2002, and the person has been separated from city service for more than one year as of the date the person's application for disability retirement is filed with the secretary to the board, except in the case where the person demonstrates by a preponderance of the evidence that the disability is due to diseases and/or conditions caused by exposure to workplace factors and/or conditions that at the time of separation from city service had no previous medical basis to be considered harmful; or

  5. Where the person separates from city service on or after March 31, 2017, and the person does not file an application for disability retirement within one month of separation from city service, except in the case where the person demonstrates by a preponderance of the evidence that the disability is due to diseases and/or conditions caused by exposure to workplace factors and/or conditions that at the time of separation from city service had no previous medical basis to be considered harmful.

• B. In the case of a member who otherwise satisfies the requirements of this chapter for a nonservice-connected disability retirement, Subsection A. of this Section 3.36.920 shall not apply and the independent medical panel or, upon appeal, the administrative law judge may grant a nonservice-connected disability retirement if the member's disability occurs while such person is on leave of absence for the purpose of engaging in military or naval duty for the United States of America in time of

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war or national emergency as proclaimed by the president or congress. The monthly retirement allowance for such nonservice-connected disability shall be reduced by the amounts received by the member pursuant to the United States Social Security Act or pursuant to any other federal disability benefits program where such amounts are paid to the member because of disability incurred while on leave of absence to engage in military or naval duty.

president or congress. The monthly retirement allowance for such nonservice-connected disability shall be reduced by the amounts received by the member pursuant to the United States Social Security Act or pursuant to any other federal disability benefits program where such amounts are paid to the member because of disability incurred while on leave of absence to engage in military or naval duty.

• C. The provisions of this section shall not apply where the person's disability occurs while such person is on leave of absence with full city compensation and pay.

(Prior code § 2903.225; Ords. 24081, 26633, 29879.)

Notwithstanding anything contained in this chapter to the contrary, no member who is retired for service pursuant to the provisions of Part 6 of this chapter 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 7 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 being retired for service. (Prior code § 2903.217.)

A member who is eligible to retire for disability may be retired for disability, pursuant to and subject to the provisions of this chapter, on the retirement board's own motion, without a request or application therefor being made by the member or any other person.

(Prior code § 2903.203.)

A member who is eligible to retire for disability shall be retired for disability, pursuant to and

subject to the provisions of this chapter, by the retirement board upon application being made therefor by any of the following persons:

• A. The city manager;

• B. The head of the office or department in which the member is or was last employed;

• C. The member, or any authorized person on his behalf.

(Prior code § 2903.204.)

• A. The retirement board on its own motion at any time may, and upon receipt of an application for disability retirement shall transfer the application to the independent medical panel to determine whether the member is disabled or incapacitated for the performance of duty, and to determine whether such disability or incapacity for performance of duty is a serviceconnected or nonservice-connected disability in those situations where the member's eligibility for disability retirement, or the amount of disability retirement allowance to which he or she may be entitled, is dependent upon such determination.

• B. In addition, the member may submit a medical report from his or her own physician or surgeon. Where application for disability retirement is made by the member or on his or her behalf, a medical report by the member's private physician or surgeon shall be submitted with the application unless otherwise authorized by the independent medical panel. The independent medical panel may require additional medical examinations, or procure or require additional or other evidence before determining a member's disability.

• C. Unless the independent medical panel extends the filing deadline:

  1. Within one year of separation from service, members must submit medical documentation indicating the initial nature of their disability, including but not limited to, the current level of disability, any

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• treatment underway at the time of application, and affected body parts where applicable; and

2. Applications for disability may not be deferred beyond four years from the date the disability application was submitted. The independent medical panel may only extend deadlines in the case of a deferred application when in the independent medical panel's opinion extenuating circumstances exist.

D. Where application for disability retirement is made by a member and one or more panel proceedings are held for the purpose of determining questions involving any right, benefit or obligation of a person under this Part 7, both the applicant and the city may have legal counsel present at any hearings. In addition, any decision made by the independent medical panel to approve or deny an application for disability retirement may be appealed to an administrative law judge pursuant to the provisions governing hearings by the State of California Office of Administrative Hearings, General Jurisdictional Division by the city or member. The request for appeal must be made in writing within forty-five days of the independent medical panel's decision. The hearing before the administrative law judge must be scheduled within ninety days of the notice of appeal unless a later date is agreed upon by the city and the member and approved by the administrative law judge. The administrative law judge's decision, or the independent medical panel's decision in the absence of an administrative law judge's decision, will be a binding determination within the meaning of California Code of Civil Procedure Section 1094.5 and shall be based on the information and documentation presented to the independent medical panel.

(Prior code § 2903.205; Ords. 19282, 26901, 29879.)

If the medical reports and other available evidence and information presented show to the satis-

faction of the independent medical panel or, upon appeal, the administrative law judge that the member is incapacitated for the performance of his duty, and if such member is otherwise eligible to retire for disability pursuant to the provisions of this chapter, the board shall retire him for disability as soon as practicable after any appeal period has expired or been waived by the relevant party. (Prior code § 2903.206; Ord. 29879.)

If the medical examination and other available evidence and information presented show to the satisfaction of the independent medical panel or, upon appeal, the administrative law judge that the disability is service-connected, it shall so find and declare such determination to the retirement board. If the medical examination and other available information presented shows to the satisfaction of the independent medical panel or, upon appeal, the administrative law judge that the disability is nonservice-connected, it shall so find and declare such determination to the retirement board. Based on such finding and declaration, the independent medical panel or, upon appeal, the administrative law judge shall instruct the board whether to retire the member for service-connected or nonservice-connected disability. (Prior code § 2903.207; Ord. 29879.)

• A. Subject to other provisions of this chapter, any member who is entitled to credit for two or more years of service (five or more years of service for tier 2 members) and who, during his or her membership in this system, is disabled and incapacitated for the performance of duty as a result of a nonservice-connected disability, may be retired by the retirement board pursuant to the provisions of this section for nonservice- connected disability, and shall be so retired at such member's request, regardless of such member's age.

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§ 3.36.995

• B. No member disabled or incapacitated for the performance of duty as a result of a nonserviceconnected disability shall be entitled to any disability allowance or other benefits under the provisions of this retirement system, if at the time such disability occurred, the member was entitled to credit for less than two (less than five for tier 2 members) full years of service.

(Prior code § 2903.211; Ords. 26901, 29266.)

• A. Subject to the provisions of this chapter, a person who is retired for nonservice-connected disability, pursuant to Section 3.36.990, shall be paid from the retirement fund while the member is incapacitated for the performance of duty as a result of the nonservice-connected disability, a monthly allowance calculated in accordance with this section.

• B. A member, other than a tier 2 member, who is entitled to credit for at least two but less than twenty years of service at the time the nonservice-connected disability occurs shall receive a monthly allowance equal to thirtytwo percent of the member's final compensation, plus one percent of said final compensation for each full year of service for which the member is entitled to credit in excess of the first two years of service; provided, however, that in no event shall the total monthly allowance exceed fifty percent of the member's final compensation.

• C. A member, other than a tier 2 member, who is entitled to credit for twenty or more years of service at the time the nonservice-connected disability occurs shall receive a monthly allowance as follows:

  1. If such member's nonservice-connected disability retirement occurred prior to January 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation.

2. If such member's nonservice-connected disability retirement occurred on or after January 1, 1970, but prior to February 4, 1996, the monthly allowance shall be:

   • a. From and after the date of such member's retirement to September 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation plus one and two-thirds percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance during said period of time exceed a maximum of sixty-six and two-thirds percent of such member's final compensation; and

   • b. From and after September 1, 1970, while so retired for disability, the monthly allowance shall be equal to fifty percent of such member's final compensation plus two and onehalf percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance exceed a maximum of seventyfive percent of such member's final compensation.

3. If such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 1996, but prior to February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation, plus three percent of said final compensation for each full year of service in excess of the

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first twenty years of service for which such member is entitled to credit; provided, however:

• a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty percent of such member's final compensation.

  • b. This paragraph C.3. shall not apply in the case where the member was retired for service prior to February 4, 1996, was not reemployed by the city for any period on or after February 4, 1996, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1. or C.2., above, as applicable.

4. Except as provided in paragraph C.5. or paragraph C.6. below, if such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation for up to the first twenty years of service, plus three percent of said final compensation for each of the next five full years of service in excess of twenty years, plus four percent of his or her final compensation for each full year of service in excess of the first twenty-five years of service; provided, however:

   • a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty-five percent of such member's final compensation.

   • b. This paragraph C.4. shall not apply in the case where the member was retired for service prior to February 4, 2000, was not reemployed by the

city for any period on or after February 4, 2000, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1., C.2. or C.3. above, as applicable.

• c. This paragraph C.4. shall not apply to a tier 2 member.

5. With respect to those members of the plan who are employed in the police department:

   • a. If such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2006, and the member is not a tier 2 member the monthly allowance shall be calculated in accordance with paragraph C.4. above.

b. If such member is not a tier 2 member and such member's nonserviceconnected disability retirement occurred or occurs on or after July 1, 2006, the monthly allowance shall be equal to two and one-half percent of his or her final compensation for each of the first twenty years of service, plus four percent of his or her final compensation for each full year of service in excess of the first twenty years of service; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

c. This paragraph C.5. shall not apply in the case where the member was retired for service prior to July 1, 2006, was not reemployed by the city for any period on or after July 1, 2006, and the disability retire-

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ment is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1., C.2., C.3. or C.4. above, as applicable.

6. With respect to those members of the plan who are employed in the fire department:

   • a. If such member's nonservice-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2008, the monthly allowance shall be calculated in accordance with paragraph C.4. above.

   • b. If such member's nonservice-connected disability retirement occurred or occurs on or after July 1, 2008:

     • i. If the member was credited with less than twenty years of service credit on the date of retirement, the monthly allowance shall be calculated in accordance with paragraph C.4. above.

     • ii. If the member was credited with twenty or more years of service credit on the date of retirement, the monthly allowance shall be equal to three percent of his or her final compensation for each year of service credit; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

   • c. This paragraph C.6. shall not apply in the case where the member was retired for service prior to July 1, 2008, was not reemployed by the city for any period on or after July

1, 2008, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph C.1., C.2., C.3. or C.4. above, as applicable.

• D. For the purposes of this Section 3.36.995, "service" means service performed for the city, and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

• E. Notwithstanding any other provision of this section, in computing the amount of allowance payable under this section for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

• F. A tier 2 member who is approved by the independent medical panel or, upon appeal, by the administrative law judge for a nonserviceconnected disability and is entitled to credit for five or more years of service credit at the time the nonservice-connected disability occurs shall receive a monthly allowance calculated as follows:

  1. If the tier 2 member has not attained age fifty, the monthly allowance is determined based on an annual benefit equal to one and four-fifths percent of final compensation times years of city service.

  2. If the tier 2 member has attained at least age fifty, the monthly allowance is determined in accordance with Section 3.36.808 for those who are fire members and 3.36.809 for those who are police members.

3. If the tier 2 member is credited with less than five years of service credit on the date of retirement, the tier 2 member is not entitled to a nonservice-connected disability.

• (Ords. 26901, 27721, 28300, 29266, 29879.)

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Subject to other provisions of this chapter, any member who, during his or her membership, is disabled and incapacitated for the performance of duty as a result of a service-connected disability may be retired by the retirement board pursuant to the provisions of this section for service-connected disability, regardless of such member's age and regardless of such member's number of years of service credit.

(Prior code § 2903.209; Ord. 26901.)

• A. Any member retired for service-connected disability pursuant to the provisions of Section 3.36.1000 shall thereafter be paid from the retirement fund, while incapacitated for the performance of duty as a result of such disability, subject to all other provisions of this chapter, a monthly disability retirement allowance in the following amount:

  1. If such member's service-connected disability retirement occurred prior to January 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation.

  2. If such member's service-connected disability retirement occurred on or after January 1, 1970, but prior to February 4, 1996, the monthly disability retirement allowance shall be as follows:

     • a. From and after the date of such member's retirement prior to September 1, 1970, the monthly allowance shall be equal to fifty percent of such member's final compensation plus one and two-thirds percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance during

said period of time exceed a maximum of sixty-six and two-thirds percent of such member's final compensation; and

• b. From and after September 1, 1970, while so retired for disability, the monthly allowance shall be equal to fifty percent of such member's final compensation plus two and onehalf percent of said final compensation for each full year of service in excess of the first twenty years of service for which such member is entitled to credit; provided, however, that in no event shall the total monthly disability retirement allowance exceed a maximum of seventyfive percent of such member's final compensation.

3. If such member's service-connected disability retirement occurred or occurs on or after February 4, 1996, but prior to February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation plus three percent of said final compensation for each full year of service in excess of twenty years of service for which such member is entitled to credit; provided, however:

   • a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty percent of such member's final compensation.

   • b. This paragraph A.3. shall not apply in the case where the member was retired for service prior to February 4, 1996, was not reemployed by the city for any period on or after February 4, 1996, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance

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  - shall be calculated in accordance with paragraph A.1. or A.2., above, as applicable.

4. Except as provided in paragraph A.5. or paragraph A.6. below, if such member is not a tier 2 member and such member's service-connected disability retirement occurred or occurs on or after February 4, 2000, the monthly allowance shall be equal to fifty percent of such member's final compensation, plus three percent of said final compensation for each year of the first five full years of service in excess of twenty years, plus four percent of his or her final compensation for each full year of service in excess of twenty-five years of service; provided, however:

   • a. In no event shall the total monthly disability retirement allowance exceed a maximum of eighty-five percent of such member's final compensation.

   • b. This paragraph A.4. shall not apply in the case where the member was retired for service prior to February 4, 2000, was not reemployed by the city for any period on or after February 4, 2000, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1., A.2. or A.3. above, as applicable.

5. With respect to those members of the plan who are employed in the police department:

   • a. If such member's service-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2006, the monthly allowance shall be calculated in accordance with paragraph A.4. above.

• b. If such member is not a tier 2 member and such member's service-connected disability retirement occurred or occurs on or after July 1, 2006, the monthly allowance shall be equal to fifty percent of his or her final compensation, plus four percent of his or her final compensation for each full year of service in excess of twenty years; provided, however, that in no event shall the monthly allowance exceed a maximum of ninety percent of the member's final compensation.

• c. This paragraph A.5. shall not apply in the case where the member was retired for service prior to July 1, 2006, was not reemployed by the city for any period on or after July 1, 2006, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1., A.2., A.3. or A.4. above, as applicable.

• d. A tier 2 member whose serviceconnected disability retirement occurs on or after August 4, 2013 and is approved by the independent medical panel or, upon appeal, by the administrative law judge, is entitled to a monthly allowance equal to the greater of:

  • i. Fifty percent of his or her final compensation; or

  • ii. An allowance calculated under the formula provided under Section 3.36.809 if the tier 2 member qualifies for a service retirement; or

  • iii. If the member does not qualify for a service retirement under Section 3.36.809, a benefit

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that is actuarially reduced by the plan's actuary for each quarter year that the member's service age is less than age fifty multiplied by the number of years of safety service subject to the applicable retirement formula.

6. With respect to those members of the plan who are employed in the fire department:

   • a. If such member's service-connected disability retirement occurred or occurs on or after February 4, 2000, but prior to July 1, 2008, the monthly allowance shall be calculated in accordance with paragraph A.4. above.

   • b. If such member's service-connected disability retirement occurred or occurs on or after July 1, 2008, the monthly allowance shall be equal to fifty percent of his or her final compensation; and, if the member had twenty or more years of service, an additional ten percent of said final compensation, plus three percent of his or her final compensation for each full year of service in excess of twenty years; provided, however, that in no event shall the monthly service retirement allowance exceed a maximum of ninety percent of the member's final compensation.

   • c. This paragraph A.6. shall not apply in the case where the member was retired for service prior to July 1, 2008, was not reemployed by the city for any period on or after July 1, 2008, and the disability retirement is a result of a change in retirement status from service to disability. Under such circumstances, the disability retirement allowance shall be calculated in accordance with paragraph A.1., A.2., A.3. or A.4. above, as applicable.

   • d. A tier 2 member whose serviceconnected disability retirement occurs on or after January 2, 2015 and is approved by the independent medical panel, or, upon appeal, by the administrative law judge, is entitled to a monthly allowance equal to the greater of:

     • i. Fifty percent of his or her final compensation; or

     • ii. An allowance calculated under the formula provided under Section 3.36.808 if the tier 2 member qualifies for a service retirement; or

     • iii. If the member does not qualify for a service retirement under Section 3.36.808, a benefit that is actuarially reduced by the plan's actuary for each quarter year that the member's service age is less than age fifty multiplied by the number of years of safety service subject to the applicable retirement formula.

• B. For the purposes of this Section 3.36.1020, "service" means service performed for the city, and for which the member is entitled to credit under the provisions of this chapter. "Service" shall not include service as an officer or employee of a reciprocal agency which is used to qualify for benefits pursuant to Section 3.36.3020.

• C. Notwithstanding any other provision of this section, in computing the amount of allowance payable under this section for service in excess of the first twenty years, pro rata credit shall be given for a fraction of a full year.

• (Prior code § 2903.208; Ords. 23070, 25614, 26229, 26901, 27721, 28300, 28330, 29266, 29511, 29879.)

• A. Notwithstanding anything else in this chapter, except as provided in Sections 3.36.1030.B and

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3.36.1330 with respect to tier 2 members, from and after January 1, 1964, the amount of any monthly disability retirement allowance payable to any person under and by virtue of other provisions of this chapter shall be computed and determined as provided by other applicable sections of this chapter without any deduction being made because of any provisions of this section. Nothing herein contained, however, shall be deemed to authorize or require the recomputation or increase of the amount of any disability retirement allowance computed and paid prior to January 1, 1964, pursuant to the provisions of this section as it read prior to said date, it being the intent that the present provisions of this section shall operate prospectively as herein provided and not retroactively. No allowance or benefits payable under this system shall be modified because of any workers' compensation benefits which may become payable under the laws of the State of California to any member or to any recipient of any allowance or benefit payable under this system except as provided in Sections 3.36.1030.B and 3.36.1330.

• B. In the event a tier 2 member is retired for a service-connected disability pursuant to Part 7 of this chapter and receives both a serviceconnected disability retirement allowance and a workers' compensation benefit for temporary disability, permanent disability or vocational rehabilitation temporary disability pursuant to Division 1 or Division 4 of the California Labor Code, then the service-connected disability retirement allowance shall be offset by such workers' compensation benefits in the same ratio as the city's contributions bear to the total contributions made to the plan on behalf of the member but shall up to a maximum aggregate amount of ten thousand dollars as follows:

  1. The applicable amount of the workers' compensation benefits shall be converted to a monthly equivalent. The ratio equal to the amount the city's contributions

bear to the total contributions made to the plan on behalf of the member will be determined and applied to the monthly equivalent. The monthly service-connected disability retirement allowance shall be reduced by the portion of the workers' compensation benefit monthly equivalent determined in the prior sentence.

2. The offset shall be in effect only during such times as concurrent retirement allowances and workers' compensation benefits are paid. In the case of the payment of a lump sum workers' compensation benefit (excluding payments for medical treatment), the offset shall apply only for such period of time as concurrent payments would have been made had the workers' compensation benefit been paid in installments.

shall be in effect only during such times as concurrent retirement allowances and workers' compensation benefits are paid. In the case of the payment of a lump sum workers' compensation benefit (excluding payments for medical treatment), the offset shall apply only for such period of time as concurrent payments would have been made had the workers' compensation benefit been paid in installments.

3. In no case shall the offset reduce the service-connected disability retirement allowance to an amount less than the sum of the maximum retired member contributions for medical, dental, life, and accidental death insurance premiums, as determined by the city, plus one dollar. This limitation shall apply regardless of whether the retired member actually contributes towards the payment of such premiums. The maximum aggregate total of the workers' compensation offset will not be more than ten thousand dollars per employee.

4. No offset shall be made for permanent disability benefits paid to any retired tier 2 member of this system who has received a workers' compensation permanent disability rating of one hundred percent.

5. The offset shall not apply with respect to workers' compensation benefits paid for any injury or illness which did not cause or contribute to the disability, as determined by the independent medical panel

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or, upon appeal, by the administrative law judge, for which the service-connected disability retirement was granted.

6. There shall be no delay in the payment of retirement benefits pending resolutions of a workers' compensation claim. All awards shall be offset in accordance to 3.36.1030.B at the time of disability retirement payment. Should a pending or new workers' compensation claim be resolved after commencement of a disability retirement benefit, the calculation of the new offset will be made by the plan as soon as practically possible after notification of the award(s) and any disability retirement benefit overpayment resulting from the workers' compensation award(s) shall be paid back to the plan.

(Prior code § 2903.212; Ord. 29879.)

• A. Except as provided in subsection E., as a condition of payment of a disability retirement allowance from the retirement fund, a person who has been retired for disability shall file written statements with the board which conform to the requirements of subsection B. below.

• B. A recipient described in subsection A. shall file statements as described either in subsection A.1. or in subsection A.2.:

  1. Monthly and annual statements.

     • a. Within ten days after the end of each calendar month, the recipient shall file a monthly statement of the total income and earnings received by the recipient during the reporting month from any gainful occupation, other than service as an officer or employee of the city, and the sources of such income and earnings; and

     • b. On or before May 1 of each year, the recipient shall file a notarized

declaration under penalty of perjury, in a form approved by the board, of the total income and earnings received by the recipient during the preceding calendar year, or any portion thereof, from any gainful occupation outside city service and the sources of such income and earnings.

2. Income tax returns.

   • a. Instead of the statements described in subsection A.1., the recipient may file copies of the recipient's federal and state income tax returns and the recipient's W-2 and/or 1099 forms showing the total income and earnings received by the recipient from any gainful occupation, other than service as an officer or employee of the city, and the sources of such income and earnings. Such tax returns and forms shall be filed on or before the first day of May following the tax reporting period.

   • b. If a recipient elects to file tax returns, the recipient shall provide written notice of such election to the board not later than the date the next monthly statement would otherwise be due.

   • c. If a recipient elects to file tax returns, the recipient shall file with the board a written statement of the recipient's projected reportable income and earnings for each calendar year, and the sources of such income and earnings. Such statement shall be filed on or before the tenth day of January in the applicable calendar year. The recipient may file an amended statement in any case where there is a change in the projected income and earnings.

• C. For the purposes of this section, income and earnings shall not include interest, dividends or rent.

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• D. If a recipient described in Subsection A. fails to furnish the information required by this section, the disability retirement allowance shall be discontinued until such time as the required information is furnished. When the required information is furnished, the disability retirement allowance shall be reinstated and allowances withheld pending receipt of the required information shall be paid, less any applicable deductions.

• E. This section shall not apply to any recipient of a disability retirement allowance when either of the following conditions is satisfied:

1. The recipient retired for disability with at least twenty years of service credit in this plan; or

   2. The recipient's service credit in this retirement plan plus the time the recipient has been retired for disability equals at least twenty years.

(Ords. 24915, 26901.)

• A. In any case where the recipient of a disability retirement allowance meets the following conditions, the recipient's disability retirement allowance shall be reduced as provided in subsection B. below:

  1. The recipient retired for disability with less than twenty years of service credit in this retirement plan and the sum of the recipient's service credit plus the time the recipient has been retired for disability is less than twenty years; and

  2. The recipient is still incapacitated for the performance of duty; and

  3. The recipient is engaged in a gainful occupation other than service as an officer or employee of the city.

• B. During the period the recipient is engaged in gainful employment, the recipient's disability retirement allowance shall be reduced to the amount which, when added to the recipient's income or earnings from such gainful occupa-

tion and when also added to all other applicable deductions, if any, required by other provisions of this Chapter 3.36, shall not exceed the amount of the maximum compensation earnable in such period by a person holding the position which the recipient held at the time of retirement, or, if that position has been abolished, the maximum compensation earnable by a person holding it immediately prior to its abolition. In no event, however, shall the disability retirement allowance payable for any period exceed the amount of disability retirement allowance to which the recipient would have been entitled for such period in the absence of this section.

• C. For the purposes of this section, income and earnings shall not include interest, dividends or rent.

• D. Any overpayment of disability retirement allowance made to a recipient may be deducted from future allowances payable to the recipient or any beneficiary of the recipient or shall otherwise be collected from the recipient.

• E. The following conditions shall apply in any case where, pursuant to Section 3.36.1035, the recipient has elected to file tax returns in lieu of monthly statements of income and earnings:

  1. Reductions in disability retirement allowances shall be made based upon the statement of projected reportable income and earnings filed by the recipient.

  2. Any overpayment of disability retirement allowance made during the applicable tax reporting period may be deducted from future allowances in substantially equal monthly deductions over a period not to exceed twelve months. If the deductions are made as provided in this subsection E., the deductions shall include interest on the outstanding overpayment at the actuarial rate adopted by the board.

  3. Any underpayment of disability retirement allowance made during the applica-

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ble tax reporting period shall be paid to the disability retirement allowance recipient in one lump sum within thirty days of the verification of the underpayment by the secretary to the board.

• F. When the sum of the recipient's service credit in this retirement plan plus the time the recipient has been retired for disability reaches twenty years, the deductions described in this section shall cease except to the extent necessary to recover any overpayment.

• (Prior code § 2903.213; Ord. 24915.)

Editor’s note— Ord. 27768, §§ 22 - 24, adopted June 20, 2006, repealed §§ 3.36.1050 - 3.36.1070, which pertained to reemployment of recipient in city service in new class of position - Deduction of earnings; refusal of reemployment with city; and disability while reemployed in new class of city positions.

The independent medical panel may at any time, or upon a request from the retirement board shall, require any recipient of a disability retirement allowance to undergo medical examination for that purpose at a reasonable time and place to be determined by the independent medical panel. Upon any such recipient's application for reinstatement to active duty, the independent medical panel shall order and cause a medical examination to be made of such recipient by the physicians or surgeons appointed or engaged by the independent medical panel. Any such order may be served upon said recipient either by personal service or by depositing the same in the United States mail, postage prepaid, addressed to the member at his latest address on file in the office of the secretary of the board, at least ten days prior to the date upon which he is to report to the physician or surgeon for examination. The recipient of the disability allowance may submit a medical report by his own physician or surgeon. Upon the basis of such examination, the indepen-

dent medical panel shall determine whether the recipient is still incapacitated for the performance of duty, and if it finds that he is not, it shall so declare, whereupon, unless otherwise expressly provided elsewhere in this chapter, the disability retirement and disability allowance shall thereupon immediately cease and be deemed terminated. (Prior code § 2903.218; Ord. 29879.)

• A. If the independent medical panel determines that a recipient of a disability allowance granted pursuant to the provisions of this chapter is no longer incapacitated for performance of duty, and if as of the date of such determination such person is not yet fifty-five years of age (fifty-seven years of age for a tier 2 member), such person shall, subject to the civil service provisions of the city, and subject to the provisions of this chapter, be reinstated either:

  1. In the position held by him or her at the time retired for disability; or

  2. 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; provided however, that if such reinstatement occurs on or after August 4, 2013, and the employee meets the definition of tier 2 member under Section 3.36.020.15, such reinstated employee shall become a tier 2 member and any subsequent retirement or disability retirement allowance payable after the reinstatement shall be computed under the provisions applicable to tier 2 members.

• B. If a recipient of a disability allowance granted pursuant to the provisions of this chapter should, upon attaining the age of fifty-five years (fifty-seven years for a tier 2 member), still be incapacitated to perform the duties of the position held by him or her at the time of retirement, and of any other position in the same classification of positions as the one held by him or her at the time of retirement

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pursuant to the provisions of this chapter, the recipient shall no longer be subject to recall to duty.

• C. Notwithstanding Subsection B., the recipient of a disability allowance granted pursuant to this chapter may, subject to the civil service provisions of the city, be voluntarily reinstated to a position in the same classification of positions as the one held by him or her at the time of retirement. Upon reinstatement from disability retirement, the disability retirement allowance shall be canceled and the person shall again become a member of this retirement plan with credit for those years of service for which the person was entitled at the time of retirement; provided, however, that if the reinstatement occurs on or after August 4, 2013 and the person meets the definition of tier 2 member under, Section 3.36.020.15, such person shall become a tier 2 member, and any subsequent retirement allowance payable on or after August 4, 2013, shall be computed under the provisions applicable to tier 2 members.

(Prior code § 2903.219; Ords. 26901, 29266, 29879.)

If the independent medical panel finds that the recipient of a disability allowance is no longer incapacitated for duty, and if such person is entitled to reinstatement to duty as provided in Section 3.36.1090, but such person fails to report for duty upon reinstatement or rejects an offer of reinstatement, all rights granted him by this chapter shall thereupon be cancelled and neither he nor his survivors shall be entitled to any benefits provided by this chapter.

(Prior code § 2903.220; Ord. 29879.)

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 restoration to duty under or by virtue of any provisions of this chapter, nor shall he or any of his survivors nor his 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 year from and after the date of termination of said retirement, and if he should prove to the satisfaction of the independent medical panel that his 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; and provided further, that if said person should die before having said disability retirement and disability retirement allowance reinstated as aforesaid and within one 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 estate may, within said one 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 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 year from and after the board terminated such retirement; and in no event shall

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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 year from and after the date the board terminated said disability retirement. (Prior code § 2903.223; Ord. 29879.)

Anything elsewhere in this chapter 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. Nothing herein contained, however, shall be deemed to restrict the amount of disability allowances payable to any such person to the amount of contribution 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 chapter even after all contributions standing to his credit shall have been so withdrawn and exhausted. (Prior code § 2903.226.)

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 posi-

tion from which he was retired for disability and of any other position in the same class or positions, then in that event such person shall nonetheless continue to be deemed retired for this 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 chapter 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 or 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 until he 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 sooner; provided, however, that nothing contained in this section 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 retirement or retirement allowance for any reason or reasons other than the fact said disability has ceased. (Prior code § 2903.227.)

Any and all disability retirement allowances otherwise payable to a person may be cancelled and terminated by the retirement board, in its sole discretion, if the recipient thereof should commit treason or be convicted of a felony. Such cancellation and termination shall not affect survivors' benefits and death benefits set forth in Part 8 of this chapter if such benefits would otherwise be payable. At any time after cancellation and termination of retirement allowances pursuant to this section, the board may in its sole discretion pay to the spouse and/or minor children under the age of eighteen of the convicted person all or any portion of the retirement allowance which would have been payable to

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the convicted person, for such period and subject to such conditions as the board in its sole discretion determines or imposes, and subject to the further right and power of the board to cancel such payments to the spouse and/or minor children at any time, in its sole discretion, with or without notice. Such payment to the spouse or minor children shall not be made until and unless application therefor shall have been made and the board shall have determined that the allowance or a portion thereof is required to provide the spouse or minor children with necessaries of life.

(Prior code § 2903.224; Ord. 23807.)

Part 8

SURVIVORSHIP AND DEATH BENEFITS

Sections:

• 3.36.1200 Death before receipt of retirement allowance - When contributions, full allowances and minimum payments are payable.

• 3.36.1205 Tier 2 members: death before receipt of retirement allowance - When contributions, full allowances and minimum payments are payable.

• 3.36.1210 Death before receipt of retirement pay - When contributions, smaller allowance and minimum benefits are payable.

• 3.36.1220 Death of a person while on disability retirement and while reemployed by city - When not deemed before receipt of pay.

• 3.36.1230 Death after receipt of retirement pay - When full allowance and minimum benefits are payable.

• 3.36.1235 Tier 2 members - Death after receipt of retirement pay - When full allowance and minimum benefits are payable.

• 3.36.1240 Death after receipt of retirement pay - When smaller allowance and minimum benefits are payable.

• 3.36.1250 Minimum death benefits - When payable.

• 3.36.1260 Return of contributions to certain survivors of person who dies before reaching fifty-five.

• 3.36.1270 Amount of survivorship allowance to surviving spouse or surviving domestic partner when such is determinable by Section 3.36.1270.

• 3.36.1280 Amount of survivorship allowance to surviving spouse or surviving domestic partner when such is determinable by Section 3.36.1280.

• 3.36.1290 Marriage or domestic partnership of surviving spouse or surviving domestic partner - When return of contributions and monthly survivorship allowance are payable.

• 3.36.1295 Reinstatement of terminated allowances.

• 3.36.1300 Amount of survivorship allowance payable to surviving child or children.

• 3.36.1305 Amount of survivorship allowance payable to surviving child or children when member had less than twenty years service credit earned while employed by city.

3.36.1310 Limitation of total amount payable to surviving spouse and children.

• 3.36.1320 Surviving children's allowances - How paid.

• 3.36.1325 Surviving children's allowances - Payment to custodian or trustee.

• 3.36.1330 Deduction of certain amounts of workers' compensation benefits.

• 3.36.1340 Reduction of benefits if member retires before attaining age fifty-five (before age fifty-seven for tier 2 members).

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• 3.36.1350 Survivorship benefits payable where person eligible for monthly allowance under Section 3.36.760 dies before receiving same.

• 3.36.1360 Survivorship benefits payable where person eligible for monthly allowance under Section 3.36.760 dies after receiving same.

• 3.36.1370 Termination of allowances or benefits for treason or conviction of a felony.

• A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

  1. Where a member who is entitled to immediate retirement for service under the provisions of this chapter dies on or after August 6, 1970, while a member of this plan and before being retired for service or disability;

  2. Where a person who is entitled to immediate retirement for service under the provisions of this chapter is granted a leave of absence without full compensation and pay and such person dies on or after August 6, 1970, while on such leave of absence and before being retired for service or disability;

  3. Where a person who has been retired for service under the provisions of this chapter dies on or after August 6, 1970, before receiving any service retirement allowance or pay;

  4. Where a person who has been retired for a service-connected disability under the provisions of this chapter dies on or after August 6, 1970, during the service-connected disability retirement and before receiving any disability retirement allowance or pay;

  5. Where a member dies on or after August 6, 1970, while a member of this plan, but before being retired hereunder for service or disability, if the death arises out of and in the course of his or her employment with the city.

• B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

  1. "Surviving spouse" means the person to whom the deceased person described in Subsection A. above was married at the time of the deceased person's death and who survives the deceased person's death, and none other.

  2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, at the time of the deceased person's death had established a domestic partnership and who survives the deceased person's death, and none other.

  3. "Surviving child" and "surviving children" mean the natural or adopted child or children of the deceased person described in Subsection A. above that meets all of the following requirements:

     • a. The child survives the deceased person's death; and

     • b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

     • c. The child is under the age of eighteen years at the time of the deceased person's death; and

     • d. The child is in existence or conceived at the time of the deceased person's death; and

     • e. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the deceased person's death.

• C. Contributions and interest payable to surviving spouse or surviving domestic partner. If

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• the deceased person described in Subsection A. above (other than a tier 2 member) leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

• D. Contributions and interest payable to surviving children where no surviving spouse and no surviving domestic partner.

  1. If the deceased person described in Subsection A. above is not a tier 2 member and leaves no surviving spouse and no surviving domestic partner, but leaves a surviving child or surviving children, the eligible surviving child or children shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum. The sum to be paid to each eligible child shall be determined by dividing the total amount of unwithdrawn contributions plus interest thereon, by the number of eligible surviving children.

  2. In the event that the estate of the deceased person establishes by appropriate court action a legal claim to all or any part of the contributions and interest paid to the surviving child or children

under this Subsection D. because of the provisions of San José Municipal Code Section 2903.250(d) as it existed on August 6, 1970 (as originally adopted by Ordinance No. 9506), monthly allowances or benefits which would otherwise be payable to any surviving child or surviving children under and by virtue of Subsection G. of this section shall be withheld and not paid to such surviving child or children until such time as the total amount of allowances so withheld equals the total amount which the court establishes is due to the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such monthly allowances or benefits.

such surviving child or children until such time as the total amount of allowances so withheld equals the total amount which the court establishes is due to the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such monthly allowances or benefits.

• E. Contributions and interest payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above leaves no surviving spouse, no surviving domestic partner and no eligible surviving child or children, the deceased person's estate shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

• F. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above who is not a tier 2 member leaves a surviving spouse or a surviving domestic partner, such surviving spouse or surviving domestic partner, whichever is applicable, shall be

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entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1270 of this chapter, subject to the provisions of Subsection H. of this section and to the following:

1. If the deceased person died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

• G. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above is not a tier 2 member and leaves a surviving child or children, the eligible surviving child, or each of the eligible surviving children if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund, subject to the provisions of and except as provided in Subsection H. of this section, until he or she marries, establishes a domestic

partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, a monthly survivorship allowance in the amount specified in Section 3.36.1300 of this chapter.

• H. Deduction from survivorship allowances.

  1. Anything elsewhere in this section or this part to the contrary notwithstanding, all of the monthly allowances or benefits which would otherwise be payable to any surviving spouse, surviving domestic partner, eligible surviving child or surviving children pursuant to the provisions of Subsections F. and G. of this section shall be withheld and not paid to the persons who would otherwise be entitled to the same until such time as the total amount of allowances so withheld equals the total amount paid or payable to a surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of Subsections C., D. or E. of this section, and the allowances so withheld shall never be paid to the persons who would otherwise have been entitled to the same, it being the intention that the monthly survivorship allowances described in Subsections F. and G. shall not be owing or payable and shall not commence until such time as there shall have elapsed from and after the death of the deceased person a number of months equal to that number obtained by dividing the total amount of money which is payable or paid to the surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of the above Subsections C., D. or E. by the sum of the monthly survivorship allowances which would otherwise be pay-

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able to a surviving spouse or surviving domestic partner and to a surviving child or children pursuant to the provisions of Subsections F. and G. of this section. By way of explanation, if the deceased person should die leaving a surviving spouse or surviving domestic partner and surviving children, and if the amount payable to the spouse or domestic partner pursuant to the provisions of Subsection C. were nine hundred dollars and the monthly amount payable to the spouse or domestic partner pursuant to Subsection F. were two hundred dollars and the amount payable to surviving children pursuant to Subsection G. were one hundred dollars, none of the allowances provided for in Subsections F. and G. would become due or payable until there shall have elapsed from and after the deceased person's death a number of months equal to nine hundred dollars divided by three hundred dollars, or three months. No such allowance shall be paid or be payable to a surviving spouse or surviving domestic partner if, at the time such allowance becomes payable, the surviving spouse or surviving domestic partner shall have died, remarried or established a domestic partnership; and no such allowance shall be paid or payable to any surviving child if at the time such allowance becomes payable to such child he or she shall have died, married, established a domestic partnership or attained the age of eighteen years.

2. Notwithstanding any of the foregoing to the contrary, contributions and interest payable under Subsections C., D. and E., at the option of the eligible recipient thereof, either shall be payable in a lump sum or shall be payable monthly in an amount equal to the amount of the monthly survivorship allowance payable pursuant to the provisions of Subsec-

tions F. and G. of this section, until the contributions and interest are exhausted, at which time payment of the monthly survivorship allowance shall commence. In the event that all the eligible recipients die before receiving the total amount of contributions and interest, the amount remaining to be paid shall be paid to the estate of the eligible recipient or, if more than one, the estate of the eligible recipient who dies last. In no event shall the eligible recipient who elects not to receive a lump sum payment of contributions and interest receive any less or more than the monthly survivorship allowance in any month even though the contributions and interest are exhausted within a month.

3. The particular recipient or parent or guardian, in the case of a minor, or representative of an estate, in the case of an estate, shall exercise the above option in writing no later than thirty days after death of the deceased person on a form to be furnished by this system. Failure to make such election in writing shall be deemed an election to receive the contributions and interest in a lump sum payment.

ular recipient or parent or guardian, in the case of a minor, or representative of an estate, in the case of an estate, shall exercise the above option in writing no later than thirty days after death of the deceased person on a form to be furnished by this system. Failure to make such election in writing shall be deemed an election to receive the contributions and interest in a lump sum payment.

• I. Minimum amount payable to estate where no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. is not a tier 2 member and should leave no surviving spouse, no surviving domestic partner and no eligible surviving child or children, and if, in addition, the amount payable to the deceased person's estate pursuant to the provisions of Subsection E. of this section should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the estate such additional amount as would, when added to the amount payable to the estate under the provisions of Subsection E., equal one thousand dollars.

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• J. Anything herein in this part to the contrary notwithstanding, no persons other than those above specified shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of any person described in Subsection A. above, and no moneys other than those above specified shall be paid or payable to the survivors or estate of the deceased person.

• K. Notwithstanding any other provision of this Part 8, survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.250; Ords. 19478, 23807, 25936, 26901, 27711, 27712, 27768, 29266, 29879.)

If the deceased person was a tier 2 member on or after March 31, 2017 and died prior to retirement, the tier 2 member shall receive the same death benefits as provided to other members of this plan under this Part 8; provided, however, that in no event shall any such benefit exceed a maximum of eighty percent of the tier 2 member's final compensation.

(Ords. 29266, 29879.)

• A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

  1. Where a member who is not entitled to immediate retirement for service dies on or after August 6, 1970, while a member of this plan and prior to being retired for service or disability, if such member, at the time of his or her death, is entitled to credit for not less than two years' service and if, in addition, the death does not arise out of and in the course of his or her employment with the city;

  2. Where a person who has been retired under this plan for a nonservice-connected disability dies on or after August 6, 1970, during his or her nonserviceconnected disability retirement before receiving any disability allowance or pay.

• B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

  1. "Surviving spouse" means the person to whom the deceased person described in Subsection A. above was married at the time of said deceased person's death, and who survives said deceased person's death, and none other.

  2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, at the time of the deceased person's death, had established a registered domestic partnership and who survives the deceased person's death, and none other.

  3. "Surviving child" and "surviving children" mean the natural or adopted child or children of the deceased person described in Subsection A. above that meets all of the following requirements:

     • a. The child survives the deceased person's death; and

     • b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

     • c. The child is under the age of eighteen years at the time of the deceased person's death; and

     • d. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the deceased person's death.

• C. Contributions and interest payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or surviving domestic partner, the surviving spouse or

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surviving domestic partner shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

• D. Contributions and interest payable to surviving children where no surviving spouse and no surviving domestic partner.

1. If the deceased member leaves no surviving spouse and no surviving domestic partner but leaves a surviving child or surviving children, the eligible surviving child or children shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum. The sum to be paid to each child shall be determined by dividing the total amount of unwithdrawn contributions plus interest thereon, by the number of surviving children.

   2. In the event that the estate of the deceased person establishes by appropriate court action a legal claim to all or any part of the contributions and interest paid to the surviving child or children under this Subsection D. because of the provisions of San José Municipal Code Section 2903.251(d) as it existed on August 6, 1970 (as originally adopted by Ordinance No. 9506), monthly allow-

ances or benefits which would otherwise be payable to any surviving child or surviving children pursuant to Subsection G. of this section shall be withheld and not paid to such surviving child or children until such time as the total amount of allowances so withheld equals the total amount which the court establishes is due to the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such monthly allowances or benefits.

• E. Contributions and interest payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above leaves no surviving spouse, no surviving domestic partner and no eligible surviving child or children, the deceased person's estate shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

• F. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased member leaves a surviving spouse or surviving domestic partner, such surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1280 of this chapter, subject to the provisions of Subsection H. of this section and to the following:

  1. If the deceased person died prior to October 1, 1999, the monthly allowance pay-

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able to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

• G. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above leaves a surviving child or surviving children, the eligible surviving child, or each of the eligible surviving children, if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund, subject to the provisions of and except as provided in Subsection H. of this section, until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, as a monthly survivorship allowance, the amount of monthly survivorship allowance specified in Section 3.36.1300 of this chapter.

• H. Deduction from survivorship allowance.

  1. Anything elsewhere in this section of this part to the contrary notwithstanding, all

of the monthly allowances or benefits which would otherwise be payable to any surviving spouse, surviving domestic partner, eligible surviving child or surviving children, pursuant to the provisions of Subsections F. and G. of this section, shall be withheld and not paid to the persons who would otherwise be entitled to the same until such time as the total amount of allowances so withheld equals the total amount paid or payable to a surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of Subsections C., D. or E. of this section, and the allowances so withheld shall never be paid to the persons who would otherwise have been entitled to the same, it being the intention that the monthly survivorship allowances described in Subsections F. and G. shall not be owing or payable and shall not commence until such time as there shall have elapsed from and after, the death of the deceased person a number of months equal to that number obtained by dividing the total amount of money which is payable or paid to the surviving spouse or surviving domestic partner of the deceased person or to the surviving child or children of the deceased person or to the estate of the deceased person pursuant to the provisions of the above Subsections C., D. or E. by the sum of the monthly survivorship allowances which would otherwise be payable to a surviving spouse or surviving domestic partner or to a surviving child or children pursuant to the provisions of Subsections F. and G. of this section. By way of explanation, if the deceased person should die leaving a surviving spouse or surviving domestic partner and surviving children, and if the

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amount payable to the spouse or domestic partner pursuant to the provisions of Subsection C. were nine hundred dollars and the monthly amount payable to the spouse or domestic partner pursuant to Subsection F. were two hundred dollars and the amount payable to surviving children pursuant to Subsection G. were one hundred dollars, none of the allowances provided for in Subsections F. and G. would become due or payable until there shall have elapsed from and after the deceased person's death a number of months equal to nine hundred dollars divided by three hundred dollars, or three months. No such allowance shall be paid or be payable to a surviving spouse or surviving domestic partner if, at the time such allowance becomes payable, the surviving spouse or surviving domestic partner shall have died; and no such allowance shall be paid or payable to any surviving child if, at the time such allowance becomes payable to such child, he or she shall have died, married or attained the age of eighteen years.

all be paid or be payable to a surviving spouse or surviving domestic partner if, at the time such allowance becomes payable, the surviving spouse or surviving domestic partner shall have died; and no such allowance shall be paid or payable to any surviving child if, at the time such allowance becomes payable to such child, he or she shall have died, married or attained the age of eighteen years.

2. Notwithstanding any of the foregoing to the contrary, contributions and interest payable under Subsections C., D. and E., at the option of the eligible recipient thereof, either shall be payable in a lump sum or shall be payable monthly in an amount equal to the amount of the monthly survivorship allowance payable pursuant to the provisions of Subsections F. and G. of this section, until the contributions and interest are exhausted, at which time payment of the monthly survivorship allowance shall commence. In the event that all the eligible recipients die before receiving the total amount of contributions and interest, the amount remaining to be paid shall be paid to the estate of the eligible recipient or, if more than one, the estate of the eligible recip-

ient who dies last. In no event shall the eligible recipient who elects not to receive a lump sum payment of contributions and interest receive any less or more than the monthly survivorship allowance in any month even though the contributions and interest are exhausted within a month.

3. The particular recipient or parent or guardian, in the case of a minor, or representative of an estate, in the case of an estate, shall exercise the above option in writing no later than thirty days after the death of the deceased person on a form to be furnished by this system. Failure to make such election in writing shall be deemed an election to receive the said contributions and interest in a lump sum payment.

• I. Minimum amount payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above is not a tier 2 member and should leave no surviving spouse, no surviving domestic partner and no eligible surviving child or children, and if, in addition, the amount payable to the deceased person's estate pursuant to the provisions of Subsection E. of this section should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the estate such additional amount as would, when added to the amount payable to the estate under the provisions of Subsection E., equal one thousand dollars.

• J. Anything herein in this part to the contrary notwithstanding, no persons other than those above specified shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of any person described in Subsection A. above, and no moneys other than those above specified shall be paid or payable to the survivors or estate of the deceased person.

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• K. If the deceased person was a tier 2 member who died on or after March 31, 2017, survivor benefits shall be payable following the tier 2 member's death in accordance with Section 3.36.1205.

(Prior code § 2903.252; Ords. 23807, 25936, 27711, 27712, 27768, 29266, 29879.)

If a member of this system is retired hereunder for disability and has received any disability retirement allowance or pay, but such person, while on such disability retirement is reemployed by the city, without termination of the disability retirement, in a position or class from which he or she was retired for disability, and if such person should die while he or she is both on such disability retirement and while he or she is so reemployed by the city, his or her death shall be deemed to have occurred after such person has received retirement pay and neither his or her surviving spouse, surviving child or children nor estate shall be entitled to receive or be paid any benefits under and by virtue of the provisions of Sections 3.36.1200 or 3.36.1210 of this chapter.

(Prior code § 2903.252; Ord. 23807)

• A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

  1. Where a person who has been retired for service under the provisions of this chapter dies after receiving any service retirement allowance or pay;

  2. Where a person who has been retired for a service-connected disability under the provisions of this chapter dies during his or her service-connected disability retirement after receiving any disability retirement allowance or pay.

• B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

  1. "Surviving spouse" means the person who survives the deceased person and who was married to the deceased person both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, and no other person. A person married to the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving spouse" unless he or she was married to the deceased person at both times.

  2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, had established a domestic partnership and who survives the deceased person's death, and no other person. A person in a domestic partnership with the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving domestic partner" unless he or she was a domestic partner of the deceased person at both times.

  3. "Surviving child" or "surviving children" means the natural or adopted child or children of such deceased person that meets all of the following requirements:

     • a. The child survives the deceased person's death; and

     • b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

     • c. The child is under the age of eighteen years at the time of the deceased person's death; and

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  - d. The child is in existence or conceived at the time of the deceased person's death; and 

  - e. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the time of the deceased person's death. 

• C. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or a surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1270, subject to the following:

or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or a surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1270, subject to the following:

1. If the deceased person retired or died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person retired or died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domes-

tic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

4. If the deceased person was a tier 2 member who died on or after March 31, 2017, notwithstanding any other provisions of this Section 3.36.1230, benefits shall be payable following the tier 2 member's death, in accordance with Section 3.36.1235.

• D. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above leaves a surviving child or surviving children, the eligible surviving child, or each of the eligible surviving children if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, as a monthly survivorship allowance, the amount of monthly survivorship allowance specified in Section 3.36.1300. This Subsection D. shall not apply to tier 2 members.

• E. Minimum amount payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above should die leaving no surviving spouse, no surviving domestic partner and no surviving child or children, there shall be paid from the retirement fund to the deceased person's named beneficiary or estate as a death benefit the sum of one thousand dollars and no more. This Subsection E. shall not apply to tier 2 members.

o surviving children. If the deceased person described in Subsection A. above should die leaving no surviving spouse, no surviving domestic partner and no surviving child or children, there shall be paid from the retirement fund to the deceased person's named beneficiary or estate as a death benefit the sum of one thousand dollars and no more. This Subsection E. shall not apply to tier 2 members.

• F. Anything in this chapter to the contrary notwithstanding, no persons other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and

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no moneys other than those specified above shall be paid or payable to the survivors or estate of the deceased person.

(Prior code § 2903.253; Ords. 23807, 25936, 27711, 27712, 27768, 29266, 29879.)

• A. Effective March 31, 2017, the benefits specified in this section shall be payable in accordance with this section where a tier 2 member who has been retired for service under the provisions of this chapter dies after receiving any service retirement allowance or pay, or where a tier 2 member has retired for a serviceconnected disability under the provisions of the chapter dies during his or her serviceconnected disability retirement after receiving any disability retirement allowance or pay.

• B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

  1. "Surviving spouse" means the person who survives the deceased person and who was married to the deceased person both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, and no other person. A person married to the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving spouse" unless he or she was married to the deceased person at both times.

  2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, both at the time of the deceased person's death and at the time the deceased person was retired for service or disability, had established a domestic partnership and who survives the deceased person's death and no other person. A person in a domestic partnership with the deceased person at

the time of the deceased person's death or at the time the deceased person was retired is not a "surviving domestic partner" unless he or she was a domestic partner of the deceased person at both times.

• C. Survivorship allowance payable to surviving spouse or surviving domestic partner. Except where the deceased person had elected an applicable optional settlement option, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes domestic partnership or dies, whichever is the earlier date, and no longer; if the deceased person described in Subsection A. above leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance equal to fifty percent joint and survivor annuity as determined by the plan's actuaries.

• D. Anything in this chapter to the contrary notwithstanding, no person other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A of this section, and no money other than those specified above shall be paid or payable to the survivors or estate of the deceased person.

• (Ord. 29879.)

• A. The benefits specified in this section shall be payable in accordance with this section in the following situation:

  1. Where a person who has been retired for a nonservice-connected disability under the provisions of this chapter dies while on such nonservice-connected disability

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retirement after receiving any disability retirement allowance or pay without becoming a tier 2 member.

2. This Section 3.36.1240 shall not apply to tier 2 members.

• B. Definitions. For the purposes of this section, the following terms shall have the following meanings:

  1. "Surviving spouse" means the person who survives the deceased person described in Subsection A. above and who was married to the deceased person both at the time of the deceased person's death and at the time the deceased person was retired for disability, and no other person. A person married to the deceased person at the time of the deceased person's death or at the time such deceased person was retired for disability is not a "surviving spouse" unless he or she was married to the deceased person at both times.

  2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, both at the time of the deceased person's death and at the time the deceased person was retired for disability, had established a domestic partnership and who survives the deceased person's death, and no other person. A person in a domestic partnership with the deceased person at the time of the deceased person's death or at the time the deceased person was retired is not a "surviving domestic partner" unless he or she was a domestic partner of the deceased person at both times.

  3. "Surviving child" or "surviving children" means the natural or adopted child or children of the deceased person described in Subsection A. above that meets all the following requirements:

     • a. The child survives the deceased person's death; and

     • b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and

     • c. The child is under the age of eighteen years at the time of the deceased person's death; and

     • d. The child is in existence or conceived at the time of the deceased person's death; and

     • e. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to the time of the deceased person's death.

• C. Survivorship allowance payable to surviving spouse or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or a surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1280, subject to the following:

or surviving domestic partner. If the deceased person described in Subsection A. above leaves a surviving spouse or a surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a monthly survivorship allowance in the amount specified in Section 3.36.1280, subject to the following:

1. If the deceased person retired or died prior to October 1, 1999, the monthly allowance payable to the surviving spouse shall be paid for the remainder of the surviving spouse's life.

2. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settlement pursuant to Part 9.5 of this chapter, if the deceased person retired or died on or after October 1, 1999, but prior to January 1, 2005, the monthly allowance payable to the surviving spouse shall be paid until the surviving spouse marries or dies, whichever is the earlier date, and no longer.

3. Except as provided in Section 3.36.1290, and except in the case where the deceased person had elected an optional settle-

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• ment pursuant to Part 9.5 of this chapter, if the deceased person died on or after January 1, 2005, the monthly allowance payable to the surviving spouse or surviving domestic partner shall be paid until the surviving spouse or surviving domestic partner marries, establishes a domestic partnership or dies, whichever is the earlier date, and no longer.

• D. Survivorship allowance payable to surviving child or children. If the deceased person described in Subsection A. above leaves a surviving child or surviving children, the eligible surviving child, or each of the eligible surviving children if there is more than one surviving child, shall be entitled to receive and shall be paid from the retirement fund until he or she marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier date, and no longer, as a monthly survivorship allowance, the amount of monthly survivorship allowance specified in Section 3.36.1300.

• E. Minimum amount payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children. If the deceased person described in Subsection A. above leaves no surviving spouse, no surviving domestic partner and no surviving child or children, there shall be paid from the retirement fund to the deceased person's named beneficiary or estate as a death benefit the sum of one thousand dollars and no more.

• F. Anything in this chapter to the contrary notwithstanding, no persons other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and no moneys other than those specified above shall be paid or payable to the survivors or estate of the deceased person. For tier 2 members, survivor benefits are payable as specified in Section 3.36.1205 or 3.36.1235, as applicable.

hall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and no moneys other than those specified above shall be paid or payable to the survivors or estate of the deceased person. For tier 2 members, survivor benefits are payable as specified in Section 3.36.1205 or 3.36.1235, as applicable.

(Prior code § 2903.254; Ords. 23807, 25936, 27711, 27712, 27768, 29266, 29879.)

• A. The benefits specified in this section shall be payable in accordance with this section in each of the following situations:

  1. Where a member who is entitled to credit for less than two years of service dies on or after August 6, 1970, while a member of this plan and prior to being retired for service or disability and prior to receiving any service or disability retirement allowance or pay, if his or her death does not arise out of and in the course of his or her employment with the city;

  2. If a member of this plan is granted a leave of absence from city service without full city compensation and pay before being retired for service or disability, and if in addition such member is not entitled at the time he or she receives such leave of absence to immediate retirement for service, and if such person should die on or after August 6, 1970 while on such leave of absence prior to being retired for disability or service and prior to receiving any service or disability retirement allowance or pay.

• B. For the purposes of this section, the following terms shall have the following meanings:

  1. "Surviving spouse" means the person who survives the deceased person described in Subsection A. above and who was married to the deceased person at the time of the deceased person's death, and no other person.

  2. "Surviving domestic partner" means the person with whom the deceased person described in Subsection A. above, at the time of the deceased person's death, had established a registered domestic partnership and who survives the deceased person's death, and no other person.

  3. "Surviving child" and "surviving children" mean the natural or adopted child

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or children of the deceased person described in Subsection A. above that meets all of the following requirements:

  - a. The child survives the deceased person's death; and 

  - b. The child is neither married nor a member of a domestic partnership at the time of the deceased person's death; and 

  - c. The child is under the age of eighteen years at the time of the deceased person's death; and 

  - d. If the child is an adopted child of the deceased person, the adoption was completed pursuant to law prior to such deceased person's death. 

• C. Contributions and interest payable to surviving spouse or surviving domestic partner; minimum amount payable.

  1. If the deceased person described in Subsection A. above, including a tier 2 member who is not eligible for immediate retirement, leaves a surviving spouse or surviving domestic partner, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

m the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

2. If the person is not a tier 2 member and the total of the unwithdrawn contributions plus interest thereon should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the surviving spouse such additional amount as would, when added

to the unwithdrawn contributions and interest thereon, equal one thousand dollars.

• D. Contributions and interest payable to surviving child or children; minimum amount payable.

  1. If the deceased person described in Subsection A. above is not a tier 2 member and leaves no surviving spouse and no surviving domestic partner, but leaves a surviving child or surviving children, the eligible surviving child or children shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by the deceased person, plus interest on the unwithdrawn contributions as earned by the fund by the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum. The sum to be paid to each surviving child shall be determined by dividing the total amount of unwithdrawn contributions plus interest thereon, by the number of surviving children.

  2. If the total of the unwithdrawn contributions plus interest thereon should be less than one thousand dollars, then in that event there shall be paid from the retirement fund to the surviving child or children such additional amount as would, when added to the unwithdrawn contributions and interest thereon, equal one thousand dollars. The additional sum to be paid to each surviving child shall be determined by dividing the additional amount by the number of surviving children.

  3. This Subsection D. shall not apply to tier 2 members.

• E. In the event that the estate of the deceased person establishes by appropriate court action

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a legal claim to all or any part of the contributions and interest paid to the surviving child or children under this Subsection D. because of the provisions of San José Municipal Code Section 2903.255(b) as it existed on August 6, 1970 (as originally adopted by Ordinance No. 9506), the contributions and interest thereon which would otherwise be payable to any surviving child or surviving children pursuant to Subsection D.1., above, shall be withheld and not paid to such surviving child or children until such time as the total amount of contributions and interest thereon so withheld equals the total amount of contributions and interest which the court action establishes is due the estate. In the event such withholding is insufficient to pay such amount due the estate, the city may recover by suit that portion of the amount due the estate which cannot be recovered by withholding such contributions and interest thereon.

• F. Contributions and interest payable to estate where there is no surviving spouse, no surviving domestic partner and no surviving children; minimum amount payable.

  1. If the deceased person described in Subsection A. above is not a tier 2 member and leaves no surviving spouse, no surviving domestic partner and no surviving child or children, the deceased person's estate shall be entitled to receive and shall be paid from the retirement fund a sum of money equal to all contributions of the deceased person to the retirement fund which have not previously been withdrawn from the retirement fund by said deceased person, plus interest on the unwithdrawn contributions as earned by the fund during the deceased person's period of aggregate service, but in no case shall the interest be in excess of two percent per annum.

  2. If the total of the unwithdrawn contributions plus interest thereon should be less than one thousand dollars, and the per-

son is not a tier 2 member, then in that event there shall be paid from the retirement fund to the deceased person's estate such additional amount as would, when added to the unwithdrawn contributions and interest thereon, equal one thousand dollars.

• G. Anything in this chapter to the contrary notwithstanding, no persons other than those specified above shall be entitled to or receive any benefits or allowances whatsoever because of or as a result of the death of a person described in Subsection A. of this section, and no moneys other than those specified above shall be paid or payable to the surviving spouse, surviving domestic partner surviving child or children, or estate of the deceased person.

• H. Amount payable for tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

• (Prior code § 2903.255; Ords. 23807, 27712, 27768, 29266.)

• A. If a person who becomes a member of this plan because of the reason set forth in Section 3.36.760 and who has not become a tier 2 member should die before he or she reaches fifty-five years of age, such person's surviving spouse, surviving domestic partner, surviving child or children (as such terms are defined in Section 3.36.1200) or estate shall be entitled under the conditions described in Section 3.36.1250C., D., or E., whichever is applicable, to one of the following:

  1. Either to the return from the retirement fund of a sum of money equal to the deceased person's contributions to the retirement fund, plus interest thereon to the date of death, as earned by such fund, said interest not to exceed two percent per annum, or to the sum of one thousand dollars, whichever is greater; or

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2. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, as a result of injury or disease arising out of and in the course of the deceased person's employment with the city, while the person was an employee of the city and a member of this plan, and a survivorship allowance is not payable pursuant to any other provision of this chapter, either the return from the retirement fund of a sum of money equal to the deceased person's contributions to the retirement fund, plus interest thereon to the date of death, as earned by such fund, said interest not to exceed two percent per annum, or to the sum of one thousand dollars, whichever is greater.

• B. For the purposed of this section, if a surviving spouse or surviving domestic partner marries or establishes a domestic partnership, such marriage or domestic partnership shall not deprive the surviving spouse or surviving domestic partner of payment hereunder, provided he or she either is married to the deceased person at the time of the deceased person's death or is a domestic partner of the deceased person at the time of the deceased person's death.

(Prior code § 2903.255a; Ords. 19123, 23807, 26901, 27712, 29266.)

Whenever in any other section of this Part 8 it is stated that a surviving spouse or surviving domestic partner shall be entitled to receive and be paid from the retirement fund the monthly survivorship allowance specified in this section, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be

paid, subject to other provisions of this chapter including Sections 3.36.1200 and 3.36.1230, the following monthly survivorship allowance:

• A. Where Deceased Died or Retired Prior to August 1, 1968. If the person because of whose death the surviving spouse is entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, the amount of monthly survivorship allowance payable to the surviving spouse shall be:

  1. An amount equal to twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation as defined in Section 3.36.020.5, less the amount specified in Section 3.36.1340; or

  2. If the deceased was retired for service-connected disability, an amount equal to twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation, as defined in Section 3.36.020.5; or

  3. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in such event the amount of the monthly survivorship allowance shall be an amount equal to thirtyseven and one-half percent of the deceased person's final compensation as defined in Section 3.36.020.5.

• B. Where Deceased Did Not Die or Retire Prior to August 1, 1968. If the person

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because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, then, except as provided in subsection C., D. or E. of this section and subject to the optional settlement provisions of Part 9.5 of this chapter, the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be:

1. An amount equal to thirty-seven and five tenths percent of the deceased person's final compensation as defined in Section 3.36.020.5, less the amounts specified in Section 3.36.1340; or

2. If the deceased was retired for service-connected disability, an amount equal to thirty-seven and one-half percent of the deceased person's final compensation as defined in Section 3.36.020.5; or

3. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in such event the amount of the monthly survivorship allowance shall be an amount equal to thirtyseven and one-half percent of the deceased person's final compensation as defined in Section 3.36.020.5.

• C. Where Deceased Died or Retired On or After August 1, 1968, With Less Than Twenty Years Service Credit as a Mem-

ber of this Plan. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance died or retired from city service on or after August 1, 1968, the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to one and eight hundred seventy-five thousandths (1.875) percent of the deceased person's final compensation for each year of service or portion thereof, less the amounts specified in Section 3.36.1340, subject to a maximum of thirty-seven and one-half percent of such final compensation, in any case where:

1. At the time of the person's death the person had earned less than twenty years of service credit in this plan while employed by the city; and

2. The benefit is payable under this Section 3.36.1270 for any reason other than:

   • a. The death of a person before retirement where the death arises out of and in the course of the person's employment with the city; or

   • b. The death of a person who has been retired for service-connected disability but who dies before receipt of retirement pay; or

   • c. The death of a person who has been retired for service-connected disability, who is not reemployed by the city at the time of death and who dies during the disability retirement after receiving any disability retirement allowance.

• D. Where Deceased Retired On or After February 4, 2000; or Deceased Died On or

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After February 4, 2000, But Prior to Receipt of Retirement Allowance. Notwithstanding subsection B. above, if the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance retired from city service on or after February 4, 2000, or died on or after February 4, 2000, but before receiving any retirement allowance, then the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall, subject to a maximum of forty-two and one-half percent of the deceased person's final compensation, be an amount equal to one of the following, as applicable:

y 4, 2000, or died on or after February 4, 2000, but before receiving any retirement allowance, then the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall, subject to a maximum of forty-two and one-half percent of the deceased person's final compensation, be an amount equal to one of the following, as applicable:

1. Thirty-seven and one-half percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation.

2. Thirty-seven and one-half percent of the deceased person's final compensation, if at the time of the deceased person's death the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation and either:

   • a. The deceased person was retired for service-connected disability; or

   • b. The deceased person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

3. Fifty percent of the deceased person's retirement allowance, less the

amounts specified in Section 3.36.1340, if at the time of the deceased person's death the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation.

4. Fifty percent of the deceased person's retirement allowance, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation and either:

   • a. The deceased person was retired for service-connected disability; or

   • b. The person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

     • For the purposes of this subsection D., if the deceased person died prior to retirement, references to the "deceased person's retirement allowance" or to the deceased's entitlement to a retirement allowance shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

• E. Where Deceased Was Employed in the Fire Department and Either Retired On or After July 1, 2008; or Died On or After July 1, 2008, But Prior to Receipt of Retirement Allowance. Notwithstanding subsection B. above, if the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance was

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employed in the fire department and either (a) retired from city service on or after July 1, 2008, or (b) died on or after July 1, 2008, but before receiving any retirement allowance, then the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall, subject to a maximum of fortyfive percent of the deceased person's final compensation, be an amount equal to one of the following, as applicable:

1. Thirty-seven and one-half percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation.

2. Thirty-seven and one-half percent of the deceased person's final compensation, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of less than seventy-five percent of the deceased person's final compensation and either:

   • a. The deceased person was retired for service-connected disability; or

   • b. The deceased person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

3. Fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, if at the time of the deceased person's death, the deceased person was entitled to a retirement

allowance of at least seventy-five percent of the deceased person's final compensation.

4. Fifty percent of the deceased person's retirement allowance, if at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation and either:

   • a. The deceased person was retired for service-connected disability; or

   • b. The person died prior to retirement and the death arose out of and in the course of the person's employment with the city.

For the purposes of this subsection E., if the deceased person died prior to retirement, references to the "deceased person's retirement allowance" or to the deceased's entitlement to a retirement allowance shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

• F. Nothing in this section shall be deemed to entitle any person to any survivorship allowance that was not provided by this chapter as this chapter existed at the time of the deceased person's death, except that the surviving spouse surviving domestic partner benefits described in subsection D. shall be payable retroactive to the date of the deceased person's death.

• G. This Section 3.36.1270 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.256; Ords. 23807, 25616, 25936, 26565, 26901, 27712, 28331, 29266.)

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§ 3.36.1280

Whenever in any other section of this Part 8 it is stated that a surviving spouse or surviving domestic partner shall be entitled to receive and be paid from the retirement fund the monthly survivorship allowance specified in this section, the surviving spouse or surviving domestic partner, whichever is applicable, shall be entitled to receive and shall be paid, subject to other provisions of this chapter including Sections 3.36.1210 and 3.36.1240, the following monthly survivorship allowance:

• A. Where Deceased Died or Retired Prior to August 1, 1968. If the person because of whose death the surviving spouse is entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, the amount of monthly survivorship allowance payable to the surviving spouse shall be equal to eighteen percent of the deceased person's final compensation as defined in Section 3.36.020.5; plus five thousand six hundred twenty-five ten- thousandths (0.5625) percent of such final compensation for each full year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1330, but in no event shall such monthly survivorship allowance exceed twenty-eight and one hundred twentyfive thousandths (28.125) percent of the final compensation of the deceased person less the amounts specified in Section 3.36.1340.

• B. Where Deceased Did Not Die or Retire Prior to August 1, 1968. If the person because of whose death the surviving spouse is entitled to a monthly survivorship allowance did not die or retire prior to August 1, 1968, then except as pro-

vided in subsection C. or D. of this section, the amount of monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to twenty-four percent of the deceased person's final compensation, as defined in Section 3.36.020.5, plus seventy-five hundredths (0.75) percent of such final compensation for each year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed thirty-seven and one- half percent of the final compensation of the deceased person less the amounts specified in Section 3.36.1340.

• C. Where Deceased Retired on or after February 4, 2000; or Deceased Died on or after February 4, 2000, but Prior to Receipt of Retirement Allowance. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance retired from city service on or after February 4, 2000, or died on or after February 4, 2000, but before receiving any retirement allowance, then:

after February 4, 2000; or Deceased Died on or after February 4, 2000, but Prior to Receipt of Retirement Allowance. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance retired from city service on or after February 4, 2000, or died on or after February 4, 2000, but before receiving any retirement allowance, then:

1. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of up to seventyfive percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to twenty- four percent of the deceased person's final compensation, as defined in Section 3.36.020.5, plus seventy-five hun-

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§ 3.36.1280

dredths (0.75) percent of such final compensation for each year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed thirtyseven and five-tenths percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

2. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed forty-two and five-tenths percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

For the purposes of this subsection C., if the deceased person died prior to retirement, the "deceased person's retirement allowance" shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death.

• D. Where Deceased Was Employed in the Fire Department and Retired on or after

July 1, 2008; or Deceased Died on or after July 1, 2008, but Prior to Receipt of Retirement Allowance. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance was employed in the fire department and either (a) retired from city service on or after July 1, 2008, or died on or after July 1, 2008, but before receiving any retirement allowance, then:

d on or after July 1, 2008, but Prior to Receipt of Retirement Allowance. If the person because of whose death the surviving spouse or surviving domestic partner is entitled to a monthly survivorship allowance was employed in the fire department and either (a) retired from city service on or after July 1, 2008, or died on or after July 1, 2008, but before receiving any retirement allowance, then:

1. In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of up to seventyfive percent of the deceased person's final compensation, the amount of the monthly survivorship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to twenty-four percent of the deceased person's final compensation, as defined in Section 3.36.020.5, plus seventy-five hundredths (0.75) percent of such final compensation for each year of service for which the deceased person was entitled to credit under the provisions of this plan in excess of the first two years of service, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed thirtyseven and five-tenths percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

In the case where, at the time of the deceased person's death, the deceased person was entitled to a retirement allowance of at least seventy-five percent of the deceased person's final compensation, the amount of the monthly survivor-

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§ 3.36.1290

ship allowance payable to the surviving spouse or surviving domestic partner, whichever is applicable, shall be an amount equal to fifty percent of the deceased person's retirement allowance, less the amounts specified in Section 3.36.1340, but in no event shall such monthly allowance exceed forty-five percent of the final compensation of the deceased person, less the amounts specified in Section 3.36.1340.

For the purposes of this subsection D., if the deceased person died prior to retirement, the "deceased person's retirement allowance" shall mean the retirement allowance that would have been paid had the deceased person retired on the day immediately preceding his or her death. E. This Section 3.36.1280 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.257; Ords. 23807, 25936, 26836, 27712, 28331, 29266.)

• A. Anything in this chapter to the contrary notwithstanding, from and after the effective date of this section, if the surviving spouse or surviving domestic partner of a deceased member who, at the time of death is not a tier 2 member and is fifty-five years of age and is entitled to credit for twenty years of service, or who is entitled to be credited with thirty years of service regardless of whether such member has attained the age of fifty-five, or who was killed in the line of duty, marries or establishes a domestic partnership, such marriage or domestic partnership shall not deprive the surviving spouse or the surviving domestic part-

• ner of the return of contributions, plus interest thereon, and monthly survivorship allowances for which he or she is eligible at the time of the member's death under Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280. Such surviving spouse or surviving domestic partner shall, despite such marriage or domestic partnership, be entitled subject to the provisions of this section to receive and shall be paid from the retirement fund, until such surviving spouse or surviving domestic partner dies, such contributions plus interest there on, and such monthly survivorship allowance to which he or she would be entitled pursuant to Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280, as if he or she had not married or established a domestic partnership. In the event that any surviving spouse or surviving domestic partner of any such member has, at any time before the effective date of this section, remarried or established a domestic partnership and for such reason has been deprived of any such contributions, plus interest thereon, and monthly survivorship allowances because of the provisions of Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280, the return of such contributions, and interest thereon (in the event the full return of such contributions, and interest thereon, has not been made at the time of such remarriage or establishment of a domestic partnership), and payment of the monthly survivorship allowance shall be recommenced as of the effective date of this Section and shall be thereafter paid in accordance with Sections 3.36.1200, 3.36.1210, 3.36.1230, 3.36.1240, 3.36.1270 and 3.36.1280, until such surviving spouse or surviving domestic partner dies, and no longer, but no return of contributions plus interest thereon shall be made, and no survivorship allowance shall be paid, for any period between the date such return of contributions plus interest thereon and monthly survivorship allowance was terminated by such remar-

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§ 3.36.1290

• B.

riage or establishment of a domestic partnership and the effective date of this section, it being the intention that this section shall operate prospectively and not retroactively.

• As used in this section:

1. For the purposes of Sections 3.36.1200 and 3.36.1210:

• a. "Surviving spouse" means the person to whom the deceased member was married at the time of the deceased member's death and who survives the deceased member's death.

  • b. "Surviving domestic partner" means the person with whom the deceased member, at the time of the deceased member's death, had established a domestic partnership and who survives the deceased member's death.

2. For the purposes of Section 3.36.1230 and 3.36.1240:

   • a. "Surviving spouse" means the person to whom the deceased member was married at the time of the deceased member's death and at the time the deceased member was retired for service or disability and who survives such deceased member's death.

   • b. "Surviving domestic partner" means the person with whom the deceased member, both at the time of the deceased person's death and at the time the deceased member was retired for service or disability, had established a registered domestic partnership and who survives the deceased member's death.

3. For the purposes of Sections 3.36.1270 and 3.36.1280:

   • a. "Surviving spouse" means whichever of the following is applicable for the purposes of Sections 3.36.1270 and 3.36.1280:

     • i. The person to whom the deceased member was married

at the time of the deceased member's death and who survives the deceased member's death; or

  - ii. The person to whom the deceased member was married at the time of the deceased member's death and at the time the deceased member was retired for service or disability and who survives the deceased member's death. 

• b. "Surviving domestic partner" means whichever of the following is applicable for the purposes of Sections 3.36.1270 and 3.36.1280:

  • i. The person with whom the deceased member, at the time of the deceased member's death, had established a domestic partnership and who survives the deceased person's death; or

  • ii. The person with whom the deceased member, both at the time of the deceased person's death and at the time the deceased member was retired for service or disability, had established a domestic partnership and who survives the deceased member's death.

4. "Effective date of this section" also means the effective date of any amendment to this section, as may be applicable.

5. "Killed in the line of duty" means that a member dies while a member of this plan and before being retired for service or disability as a direct result of an incident while in the performance of duty in the member's employment with the City. To be covered, the death must not result from a condition unrelated to the specific incident. A member who dies after first being on disability retirement with the

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§ 3.36.1300

City is not considered to have been killed in the line of duty for purposes of this Section.

(Prior code § 2903.257a; Ords. 21686, 23807, 27712, 29266, 30348, 30423.)

• A. If the monthly allowance of the surviving spouse of any person who retired or died prior to October 1, 1999, was terminated pursuant to the provisions of Chapter 3.36 of the San José Municipal Code as such Chapter read before the effective date of Ordinance No. 25936, because the surviving spouse remarried, the monthly allowance shall be reinstated effective the later of:

  1. October 1, 1999; or

  2. The first month after the surviving spouse provides documentation satisfactory to the Secretary to the Board showing the surviving spouse's eligibility for reinstatement, of the allowance.

• B. The reinstatement of the monthly allowance shall be prospective only and no payments shall be made for the months during which the allowance was terminated pursuant to the prior provisions of Chapter 3.36. Any cost-of-living adjustments pursuant to Chapter 3.44 of the San José Municipal Code shall also be prospective only and no cost-of-living adjustments shall be made for any time during which the monthly allowance was terminated.

• C. The reinstated monthly allowance shall be paid to the eligible surviving spouse for the remainder of the surviving spouse's life.

• (Ords. 25936, 27712.)

Subject to and except as otherwise provided by other provisions of this Chapter, if and whenever any survivorship allowance is payable to any surviving child or children pursuant to other provisions of this Part 8, the surviving child, or each of

the surviving children if there is more than one surviving child of the deceased member or person, shall be entitled to receive and shall be paid from the retirement fund, until the surviving child marries, establishes a domestic partnership, attains the age of eighteen years or dies, whichever is the earlier time, and no longer, the following monthly survivorship allowance:

• A. Death or Retirement Prior to August 1, 1968 - One Eligible Surviving Child. If the person because of whose death the surviving child is entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, and if in addition, there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, then in that event while there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, the monthly allowance payable to such child shall be:

  1. An amount equal to eighteen and seventy-five hundredths (18.75) percent of the deceased person's final compensation less the amounts specified in Section 3.36.1330; or

  2. If the death because of which the survivorship allowance is payable arose out of and in the course of the deceased person's employment with the city, or as a result of injury or disease arising out of and in the course of the deceased person's employment with the city while the deceased person was an employee of the city and a member of this plan and before he or she was retired for service or disability, then in that event the amount of the monthly survivorship allowance payable to one surviving child shall be twenty-five percent of the de-

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§ 3.36.1300

ceased person's final compensation, less the amounts specified in Section 3.36.1330.

3. If the deceased was retired for service-connected disability, an amount equal to eighteen and seventy-five hundredths (18.75) percent of the deceased person's final compensation.

• B. Death or retirement not prior to August 1, 1968; one eligible surviving child. If the person because of whose death the surviving child is entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, and if, in addition, there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, then in that event, while there is only one eligible surviving child of the deceased person entitled to receive a monthly survivorship allowance, the amount of such monthly survivorship allowance payable to such child shall be:

  1. An amount equal to twenty-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

2. If the death arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, an amount equal to twenty-five percent of the deceased person's final compensation.

   3. If the deceased was retired for service-connected disability, an amount

equal to twenty-five percent of the deceased person's final compensation.

• C. Death or retirement prior to August 1, 1968 - two eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, and if in addition there are only two eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, then in that event while there are only two such surviving children of the deceased person entitled to receive a monthly survivorship allowance, the allowance payable to each child shall be:

  1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly retirement allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a below, or one-half of the amount specified in paragraph b below, whichever is the lesser amount:

     • a. Twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

     • b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse of such deceased person, will

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§ 3.36.1300

not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation, less the amounts specified in Section 3.36.1330.

2. If the death arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this system and before he or she was retired for service or disability, the monthly survivorship allowance payable to each of the two surviving children shall be one-half of the amount specified in paragraph a below, or one- half of the amount specified in paragraph b below, whichever is the lesser amount:

   • a. Fifty percent of the deceased person's final compensation less the amounts specified in Section 3.36.1330; or

• b. That percentage of the deceased person's final compensation which, when added to the percentage of such compensation which is paid or payable to a surviving spouse of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330.

3. If the deceased was retired for service-connected disability, the monthly retirement allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a. below, or one-half of

the amount specified in paragraph b. below, whichever is the lesser amount:

  - a. Twenty-eight and one hundred twenty-five thousandths (28.125) percent of the deceased person's final compensation; or 

  - b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation. 

• D. Death or retirement not prior to August 1, 1968 - two eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, and if in addition there are only two eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, then in that event, while there are only two eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, the monthly survivorship allowance payable to each of the two surviving children shall be:

  1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly allowance payable to each of the surviving children shall be an amount equal to one-half of the amount

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§ 3.36.1300

specified in paragraph a below, or one-half of the amount specified in paragraph b below, whichever is the lesser amount:

• a. Thirty-seven and five tenths percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

• b. That percentage of the deceased person's final compensation which when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventyfive percent of such final compensation, less the amounts specified in Section 3.36.1330.

2. If the death because of which said survivorship allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in that event the amount of such monthly survivorship allowance payable to each of said two children from and after said death, while entitled to the same, shall be one-half of the amount specified in paragraph a below, or one-half of the amount specified in paragraph b below, whichever is the lesser amount:

   • a. Fifty percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; or

     • b. That percentage of the deceased person's final compensation which, when added to the percentage of such compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330.

   3. If the deceased person was retired for service-connected disability, the monthly allowance payable to each of the surviving children shall be an amount equal to one-half of the amount specified in paragraph a. below, or one-half of the amount specified in paragraph b. below, whichever is the lesser amount:

      • a. Thirty-seven and five- tenths percent of the deceased person's final compensation; or

      • b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventyfive percent of such final compensation.

• E. Death or retirement prior to August 1, 1968; three or more eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance died or retired from city service prior to August 1, 1968, and if, in addition, there are three or more eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, the

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§ 3.36.1300

monthly survivorship allowance payable to each child while he is entitled to the same shall be:

1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly allowance payable to each of the surviving children shall be the amount specified in paragraph a below, or the amount specified in paragraph b below, whichever is the lesser amount:

   • a. Thirty-seven and five- tenths percent of the deceased person's final compensation less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

• b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

2. If the death because of which said survivorship allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased

person's employment with the city, while the deceased person was an employee of the city and a member of this plan, and before he or she was retired for service or disability, then in that event the amount of such monthly survivorship allowance payable to each child while he or she is entitled to same shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b., whichever is the lesser amount:

• a. Seventy-five percent of the deceased person's final compensation, less the amounts specified by Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

• b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation paid or payable to a surviving spouse of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

3. If the deceased person was retired for service-connected disability, the monthly allowance payable to each of the surviving children shall be the amount specified in paragraph a. below, or the amount specified in paragraph b. below, whichever is the lesser amount:

   • a. Thirty-seven and five-tenths percent of the deceased person's final compensation, di-

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vided by the number of children entitled to receive an allowance; or

  - b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse of such deceased person, will not exceed a total of fifty-six and twenty-five hundredths (56.25) percent of such final compensation, divided by the number of children entitled to receive an allowance.

• F. Death or retirement not prior to August 1, 1968 - three or more eligible surviving children. If the person because of whose death the surviving children are entitled to a monthly survivorship allowance did not die or retire from city service prior to August 1, 1968, and if, in addition, there are three or more eligible surviving children of the deceased person entitled to receive a monthly survivorship allowance, then in that event, while there are three or more such surviving children of the deceased person entitled to receive a monthly survivorship allowance, the monthly survivorship allowance payable to each child shall be:

  1. If the death did not arise out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, the monthly allowance payable to each of the surviving children shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b, whichever is the lesser amount:

     • a. Fifty percent of the deceased person's final compensation,

less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance; or

• b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventyfive percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

2. If the death because of which said survivorship allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan and before he or she was retired for service or disability, then in that event the amount of such monthly survivorship allowance payable to each child from and after said death while he or she is entitled to the same shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b., whichever is the lesser amount:

   • a. Seventy-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330,

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divided by the number of children entitled to receive an allowance; or

• b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

entage of the deceased person's final compensation which, when added to the percentage of such final compensation paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, less the amounts specified in Section 3.36.1330, divided by the number of children entitled to receive an allowance.

3. If the deceased person was retired for service-connected disability, the monthly allowance payable to each of the surviving children shall be the amount specified in the following paragraph a., or the amount specified in the following paragraph b., whichever is the lesser amount:

   • a. Fifty percent of the deceased person's final compensation, divided by the number of children entitled to receive an allowance; or

   • b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or is payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventyfive percent of such final compensation, divided by the number of children entitled to receive an allowance.

• G. Nothing in this section shall be deemed to entitle any person to any survivorship allowance that was not provided by this chapter as this chapter existed at the time of the deceased person's death.

• H. This Section 3.36.1300 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

(Prior code § 2903.258; Ords. 23807, 26901, 27712, 29266.)

Except as provided in subsection E. below, if and whenever any survivorship allowance is payable to any eligible surviving child or children pursuant to the provisions of this Part 8 because of the death of a member who, at the time of the member's death, had earned less than twenty years of service credit in this plan while employed by the city, then instead of any other survivorship allowance provided to eligible surviving children under this Part 8, the surviving children's monthly survivorship allowances shall be as follows:

• A. To one eligible surviving child, one and twenty-five hundredths (1.25) percent of the deceased person's final compensation for each full year of service earned in this plan while employed by the city, subject to a maximum of twenty-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year of service.

• B. To each of two eligible surviving children, one-half of the amount specified in the following paragraph 1. or one-half of the amount specified in the following paragraph 2., whichever is the lesser amount:

  1. One and eight hundred seventy-five thousandths (1.875) percent of such

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deceased person's final compensation for each full year of service earned in this plan while employed by the city; provided, however, that in no event shall the combined monthly allowance payable to the children exceed a maximum of fifty percent of such final compensation. Pro rata credit shall be given for a portion of a full year of service.

2. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five percent of such final compensation.

• C. To each of three or more eligible surviving children, the amount specified in the following paragraph 1. or the amount specified in the following paragraph 2., whichever is the lesser amount:

  1. Two and five-tenths percent of such deceased person's final compensation for each full year of service earned in this plan while employed by the city, divided by the number of children entitled to receive an allowance; provided, however, that in no event shall the combined monthly allowance paid to the children exceed a maximum of seventyfive percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

  2. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not ex-

ceed a total of seventy-five percent of such final compensation, divided by the number of children entitled to receive an allowance.

• D. The benefits payable pursuant to this Section 3.36.1305 shall be payable to each eligible surviving child until that surviving child marries, establishes a domestic partnership, attains the age of eighteen years, or dies, whichever first occurs. Thereafter, no benefits shall be payable to such child.

  • E. This Section 3.36.1305 shall not apply, and benefits payable to the deceased person's eligible surviving child or surviving children shall be calculated as provided in Section 3.36.1300, in any case where benefits are payable on account of:

    1. The death of a person before retirement where the death arises out of and in the course of the person's employment with the city; or

    2. The death of a person who has been retired for service-connected disability but who dies before receipt of retirement pay; or

    3. The death of a person who has been retired for service-connected disability, who is not reemployed by the city at the time of death and who dies during the disability retirement after receiving any disability retirement allowance.

  • F. This Section 3.36.1305 shall not apply to tier 2 members. Survivor benefits with respect to a tier 2 member are payable as provided in Section 3.36.1205.

• (Ords. 25616; 27712, 29266.)

• A. Anything in the preceding provisions of this Part 8 to the contrary notwithstanding, the total amount of survivorship or other allowances payable monthly to a surviving spouse

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§ 3.36.1320

or surviving domestic partner pursuant to the provisions of this part, together with and in addition to the total amount of allowances payable monthly to any and all eligible surviving children pursuant to the provisions of this part, shall not exceed the following maximum amounts:

1. Where deceased died or retired prior to August 1, 1968. If the person because of whose death the surviving spouse or children are entitled to a monthly allowance or allowances died or retired from city service prior to August 1, 1968, the maximum amount of all monthly allowances payable to a surviving spouse and children shall not exceed fifty-six and twentyfive hundredths percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330; provided and excepting, however, that if the death because of which said allowances are payable arose out of and in the course of the deceased person's employment with the city, or as a result of an injury or disease arising out of and in the course of the deceased person's employment with the city, while the deceased person was an employee of the city and a member of this plan and before he or she was retired for service or disability, then in that event the maximum amount of all of said allowances shall not exceed seventy-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330.

2. Where deceased did not die or retire prior to August 1, 1968. If the person because of whose death the surviving spouse, surviving domestic partner or children are entitled to a monthly allowance or allowances did not die or retire from city service prior to August 1, 1968, the maximum amount of all monthly allowances payable to a surviving spouse or surviving domestic partner and children from

and after the death shall not exceed seventy-five percent of the deceased person's final compensation, less the amounts specified in Section 3.36.1330.

3. Where deceased is a tier 2 member. Survivor benefits with respect to a tier 2 member who dies before the receipt of retirement benefits are payable as provided in Section 3.36.1205.

• B. In the event that the monthly amount payable to a surviving spouse or surviving domestic partner, together with or in addition to the monthly amounts payable to the eligible surviving children should exceed the applicable maximum, the amounts payable to the children shall be reduced to such amounts as will not, when added to the sum payable to the surviving spouse or surviving domestic partner, exceed the monthly maximum.

(Prior code § 2903.259; Ords. 23807, 27712, 29266, 29879.)

• 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 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 in 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

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§ 3.36.1320

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.

• C. 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 § 2903.260; Ords. 23807, 27712.)

Payment to custodian or trustee.

• A. A member (including a tier 2 member) of this plan or any person who has retired from this plan 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; and

  2. The board is provided with written acknowledgment of receipt of payment as custodian, as provided by California Probate Code Section 3908, on such form as the board may provide, together with ex-

ecution 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; and

  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.

  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 3.36.1325 are met, the

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payment of such survivorship allowance shall be made in accordance with Section 3.36.1320 of this chapter.

(Ords. 22342, 23807, 27712, 29266.)

Notwithstanding anything else in this chapter to the contrary, except to the extent provided in Section 3.36.1030 with respect to the benefits paid to the survivor or beneficiary of tier 2 members, from and after January 1, 1964 the amount of any monthly survivorship or death allowance or benefit payable to any person or to any estate under and by virtue of other provisions of this chapter shall be computed and determined as provided by other applicable sections of this chapter without any deduction being made because of any provision of this section. Nothing herein contained, however, shall be deemed to authorize or require the recomputation or increase of the amount of any survivorship or death allowance or benefit computed and paid prior to January 1, 1964, pursuant to the provisions of this section as it read prior to said date, it being the intent that the present provisions of this section shall operate prospectively as herein provided and not retroactively. No survivorship or death allowances or benefits payable under this system shall be modified because of any workers' compensation benefits which may become payable under the laws of the State of California to any member or to any recipient of any allowances or benefit payable under this system except as provided in Section 3.36.1030.B and this Section 3.36.1330. (Prior code § 2903.261; Ords. 23807, 27712, 29879.)

• A. If a member should retire for service pursuant to the provisions of Part 6 of this retirement plan prior to July 5, 1992, and before attaining the age of fifty-five years, and if said member is entitled to be credited with twenty or more years of service but less than thirty years of

service, then each allowance, benefit or other payment to which any person, persons or estate would otherwise be or become entitled to under or by virtue of the preceding sections of this Part 8 shall be reduced to an amount which bears the same relationship to the unreduced allowance, benefit or payment as the partially reduced allowance defined and referred to in Subsection B.2. of Section 3.36.810 bears to the unreduced allowance defined and referred to in Subsection B.1. of Section 3.36.810.

• B. If a member, other than a tier 2 member, should retire for service pursuant to the provisions of Part 6 of this retirement plan on or after July 5, 1992, and before attaining the age of fifty-five years, and if said member is entitled to be credited with twenty or more years of service but less than twenty-five years of service, then each allowance, benefit or other payment to which any person, persons or estate would otherwise be or become entitled to under or by virtue of the preceding provisions of this Part 8 shall be reduced to an amount which bears the same relationship to the unreduced allowance, benefit or payment as the partially reduced allowance defined and referred to in Subsection B.2. of Section 3.36.810 bears to the unreduced allowance defined and referred to in Subsection B.1. of Section 3.36.810.

• C. If a tier 2 member should retire for service pursuant to the provisions of Part 6 of this retirement plan before attaining the age of fifty-seven years, and if said tier 2 member is entitled to be credited with five or more years of service, then each allowance, benefit or other payment to which any person, persons or estate would otherwise be or become entitled to under or by virtue of the preceding provisions of this Part 8 shall be reduced to an amount which bears the same relationship to the unreduced allowance, benefit or payment as the reduced allowance described in Section 3.36.810.

(Prior code § 2903.263; Ords. 21686, 23807, 24092, 27712, 29266, 29879.)

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§ 3.36.1350

• A. If a person who becomes a member of this plan because of the reason set forth in Section 3.36.760 and has reached fifty-five years of age and does not become a tier 2 member should die before receiving any monthly allowance provided for in Section 3.36.760, such person's surviving spouse, surviving domestic partner, child or children (as these terms are defined in Section 3.36.1200), shall be entitled

  • to:

  1. Under the conditions described in subsections C. and D. of Section 3.36.1200, a sum of money equal to all contributions of the deceased person to the retirement fund plus interest thereon as earned by the fund to the deceased person's death, but in no case shall the interest exceed two percent per annum; and

  2. Under the conditions described in subsections F. and G. of Section 3.36.1200, and subject to the withholding provided for in subsection H. of Section 3.36.1200, if a lump sum return of contributions and interest is chosen, a monthly allowance, the amount of such allowance to be as specified in subsection C. of this section.

• B. If a person who becomes a member of this system because of the reason set forth in Section 3.36.760 and has reached fifty-five years of age should die before receiving the monthly allowance provided for in Section 3.36.760, then under the conditions described in subsection E. of Section 3.36.1200 such deceased person's estate shall be entitled to a return of his contributions together with interest thereon to the date of death, but in no case shall the interest exceed two percent per annum.

• C. The amount of a monthly allowance payable under this section shall be:

  1. To a surviving spouse or surviving domestic partner for the surviving spouse's or
  • surviving domestic partner's life, one and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of thirty-seven and five tenths percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

2. To one eligible surviving child, one and twenty-five one hundredths (1.25) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of twenty-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

3. To each of two eligible surviving children, one-half of the amount specified in the following paragraph a or one-half of the amount specified in the following paragraph b, whichever is the lesser amount:

• a. One and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the combined monthly allowance payable to such children exceed a maximum of fifty percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

  • b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation.

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§ 3.36.1360

4. To each of three or more eligible surviving children, the amount specified in the following paragraph a or the amount specified in the following paragraph b, whichever is the lesser amount:

   • a. Two and five tenths percent of such deceased person's final compensation for each full year of service, divided by the number of children entitled to receive an allowance; provided, however, that in no event shall the combined monthly allowance paid to the children exceed a maximum of seventy-five percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

   • b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person, will not exceed a total of seventy-five percent of such final compensation, divided by the number of children entitled to receive an allowance.

• D. Each child who, if he or she were under the age of eighteen years, would be a surviving child as defined in Section 3.36.1200 and entitled to payment of contributions and monthly allowance hereunder, shall, if he or she otherwise meets the eligibility requirements of Part 9 of this chapter, it being assumed for purposes of such part that such child would be entitled to a surviving child's monthly survivorship allowance under Part 8 if he or she were under eighteen years of age, be entitled to a child's school allowance for the time set forth in Section 3.36.1440 in the same amount, including return of contributions and monthly survivorship allowance as set forth above for surviving child and children.

(Prior code § 2903.263a; Ords. 19478, 23807, 27712, 29266.)

• 3.36.1360 Survivorship benefits payable where person eligible for monthly allowance under Section 3.36.760 dies after receiving same.

• A. If a person who becomes a member of this plan because of the reason set forth in Section 3.36.760 and has reached fifty-five (55) years of age should die after receiving any such allowance, such person's surviving spouse, surviving domestic partner, and surviving child or children (as these terms are defined in Section 3.36.1230) shall be entitled to a monthly allowance under the conditions described in subsections C. and D. of Section 3.36.1230, the amount of such monthly allowance to be as specified in subsection B. of this section, and the deceased person's estate shall be entitled to a payment of one thousand dollars ($1,000.00) under the conditions described in subsection E. of Section 3.36.1230.

• B. The amount of such monthly allowance payable under this section shall be:

  1. To a surviving spouse or surviving domestic partner for the surviving spouse's or surviving domestic partner's life, one and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of thirty-seven and five tenths (37.5) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

  2. To one (1) eligible surviving child, one and twenty-five hundredths (1.25) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the monthly allowance exceed a maximum of twenty-five (25) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

  3. To each of two (2) eligible surviving children, one-half ( 1/2) of the amount spec-

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§ 3.36.1360

ified in the following paragraph a, or one-half ( 1/2) of the amount specified in the following paragraph b, whichever is the lesser amount:

• a. One and eight hundred seventy-five thousandths (1.875) percent of such deceased person's final compensation for each full year of service; provided, however, that in no event shall the combined monthly allowance payable to said children exceed a maximum of fifty (50) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

• b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five (75) percent of such final compensation;

4. To each of three (3) or more eligible surviving children, the amount specified in the following paragraph a, or the amount specified in the following paragraph b, whichever is the lesser amount:

• a. Two and five tenths (2.5) percent of such deceased person's final compensation for each full year of service, divided by the number of children entitled to receive an allowance; provided, however, that in no event shall the combined monthly allowance paid to the children exceed a maximum of seventy-five (75) percent of such final compensation. Pro rata credit shall be given for a portion of a full year.

  • b. That percentage of the deceased person's final compensation which, when added to the percentage of such final compensation which is

paid or payable to a surviving spouse or surviving domestic partner of such deceased person will not exceed a total of seventy-five (75) percent of such final compensation, divided by the number of children entitled to receive an allowance.

• C. Each child who, if he or she were under the age of eighteen (18) years, would be a surviving child as defined in Section 3.36.1230 and entitled to payment of a monthly survivorship allowance hereunder shall, if he or she otherwise meets the eligibility requirements of Part 9 of this chapter, it being assumed for purpose of such Part that such child would be entitled to a surviving child's monthly survivorship allowance under Part 8 if he or she were under eighteen (18) years of age, be entitled to a child's school allowance for the time set forth in Section 3.36.1440 in the same amount, including return of contributions and monthly survivorship allowance as set forth above for surviving child and children.

• D. Such deceased person shall, for the purpose of the definition of spouse, domestic partner, child or children contained in this section, be deemed to have retired as of the date such deceased person first received a monthly allowance under this chapter.

(Prior code § 2903.263b; Ords. 19123, 23807, 27712.)

Any and all allowances or benefits payable to any person under and by virtue of any of the provisions of this Part 8 may be cancelled and terminated by the retirement board, in its sole discretion, if the recipient thereof should commit treason or be convicted of a felony.

(Prior code § 2903.262; Ords. 23807, 27712.)

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Part 9

SURVIVING CHILD'S SCHOOL ALLOWANCE

Sections:

• 3.36.1450 Child's school allowance - Amount.

• A. The retirement board referred to in Part 3 of this Chapter 3.36 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.

• B. In addition, the retirement board is hereby authorized and empowered to make inquiries and investigations, hold hearing, 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 the retirement board shall be deemed final and conclusive.

• (Prior code § 2903.270k.)

As used in this Part 9:

• A. "Educational Institution" Defined. "Educational institution" means a school (in-

cluding a technical, trade or vocational school), junior college, college or university:

1. Which 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. Which 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 (1) 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 state's compulsory educational laws, or if the school has tax exemption as a school, or if the school receives financial aid, loans or scholarship allowances; or

3. Whose credits are accepted, on transfer, by not less than three institutions which have been accredited by a state recognized or nationally recognized accrediting agency or body, for credit on the same basis is if transferred from an institution so accredited. Acceptance of credits on transfer includes, in addition to

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§ 3.36.1410

  - 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" Defined. "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 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.

  1. "Full-time attendance" at an educational institution means:

     • a. Enrollment in a junior college, college or university in a day or evening noncorrespondence course of at least thirteen school weeks' duration which is full-time under the school's standards and practices for day students; or

     • b. Enrollment in any other educational institution in a day or evening noncorrespondence course of at least thirteen school weeks' duration which is full-time under the school's standards and practices for day students with scheduled attendance at the rate of twenty hours per week or more.

2. The thirteen-school-week duration requirement is met if the course lasts for thirteen weeks including the beginning and ending weeks.

   3. The thirteen-school-week duration requirement refers to the entire course of study (e.g., a four-year high school or college course, a twoyear junior college course), and not a semester, trimester, summer school session, or other segment of the course. If a student attending a course of at least thirteen school weeks' duration drops out or is dropped before completing the thirteen school weeks, he or she may still qualify for the months of fulltime attendance.

   4. A student whose full-time attendance begins or ends in a month is in full- time attendance for that month.

• D. "Full-Time Student" Defined. "Full-time student" means a student who is in fulltime 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" Defined. "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 Part 8 of Chapter 3.36 and, as such, would be entitled, if he or she were under eighteen years of age, to a surviving child's survivorship allowance under and pursuant to the provisions of said Part 8.

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(Prior code § 2903.270a - e, h; Ords. 20202, 23807, 27712.)

• A. A student who has been in full-time attendance at an educational institution is deemed to be in full-time attendance during a period of nonattendance at an educational institution if the period of nonattendance is four consecutive calendar months or less, and the student:

  1. Establishes that he intends to be in fulltime attendance at an educational institution in the month immediately following such period of nonattendance; or

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

• B. A period of nonattendance is any period in which a student is not a full-time student (i.e., he is not attending school, he is attending school less than full-time, or he is attending a school that is not an educational institution).

• C. A period of nonattendance begins on the first day of the month following the last month in which the student was in full-time attendance, and ends on the last day of the month preceding the month in which the student resumes full-time attendance.

• D. A student or individual shall not be deemed a full-time student or in full-time attendance during any period of nonattendance if the nonattendance is due to expulsion or suspension from school, notwithstanding that such student or individual intends to resume or actually does resume full-time attendance within four calendar months after the beginning of such period of nonattendance or later.

• (Prior code § 2903.270f; Ord. 20202.)

An eligible surviving child is entitled to a surviving child's school allowance under the provisions

of this Part 9 for each calendar month, after January 1, 1968, 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 domestic partnership; or

• D. The child attains the age of twenty-two (22) years; or

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

(Prior code § 2903.270i; Ord. 27712.)

An eligible surviving child shall be entitled to receive, for each calendar month after January 1, 1968, in which all of the conditions of entitlement described in the preceding provisions of this Part 9 are met by him, and in no event for any period longer than the duration of his entitlement as specified in Section 3.36.1440, a child's allowance. The amount of such allowance for each calendar month for which said child is eligible for the same shall be the same as the amount which would be payable to him for each such month as a surviving child's survivorship allowance under and by virtue of the provisions of Part 8 of this chapter if he were under the age of eighteen years and otherwise entitled to a surviving child's survivorship allowance under the provisions of Part 8. Anything in said Part 8 or elsewhere in this chapter to the contrary notwithstanding, for the purpose of determining and computing the amount of the child's survivorship allowance which would be payable to such child under the provisions of Part 8 if he were under the age of eighteen years and otherwise entitled to such survivorship allowance, and also for the purpose of determining and computing the amount of child's survivorship allowance payable under the provisions of Part 8 to other surviving children of the

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§ 3.36.1450

parent because of whose death said child is entitled to a school allowance, the child claiming the school allowance shall be deemed and considered to be one of the surviving children entitled to a child's survivorship allowance under the provisions of Part 8. (Prior code § 2903.270j.)

Notwithstanding any other provisions of this retirement plan, Part 9 shall apply to tier 2 members; provided, however, the allowance paid to the child or children of a tier 2 member shall be limited to eighty percent of the allowance determined under Section 3.36.1450.

(Ords. 29266, 29879.)