Part 4 — MEMBERSHIP

30th and July 1, 1975.

Each person who on June 30, 1975, was an officer or employee of the city holding an office or position entitling him or her to membership in this retirement plan pursuant to the provisions of Chapter 3.24 and who, in addition, was a member of the retirement plan on that date, shall become and be subject to the provisions of this Chapter 3.28 upon its becoming effective if he or she continues to hold that office or position to and through July 1, 1975, and, in addition, continues to be a member of the Chapter 3.24 retirement system until the effective date of this chapter. Upon becoming subject to the provisions of this chapter, each such person ceases to be a subject to the provisions of Chapter 3.24 and he or she, and all other persons or estates that might have any rights under Chapter 3.24 because of the person's coverage under Chapter 3.24, cease to have any rights under Chapter 3.24 but shall thereafter be governed by and have only such rights as are provided by this Chapter 3.28 system.

(Prior code § 2904.1150; Ord. 27838.)

A.

A person who has been retired from service under the provisions of Chapter 3.24, at an age less than the age for compulsory retirement applicable to him or her, may be reinstated from retirement to Federated City Service by the Retirement Board in accordance with the provisions of this Chapter, and, upon such reinstatement or thereafter, such person may be reemployed by the City in a position in the Federated City Service in accordance with the laws governing such employment in the same manner as a person who had not been so retired.

B.

The Retirement Board shall not reinstate any such person from service retirement unless:

The person proposed to be reinstated has filed with the Board a written application requesting such reinstatement;

At least one (1) year has or will have expired between the effective date of said person's last retirement and the date of reinstatement; and

The Board has found and determined that said person's age on the effective date of his or her reinstatement is at least six (6) months less than age seventy (70).

C.

When a person is reinstated from service retirement and reenters Federated City Service pursuant to this Section, his or her service retirement allowance shall be canceled as of the effective date of the reinstatement, and, subject to the exceptions and exclusions hereinafter set forth in Sections 3.28.460 through 3.28.550 inclusive of this Part, he or she shall become and be a member of this retirement plan as of the effective date of his or her new employment in the Federated City Service. Upon becoming a member of this Plan, any such person who formerly was retired for service under the provisions of Chapter 3.24 ceases to be governed by the provisions of Chapter 3.24, and he or she and all other persons or estates that might have any rights under Chapter 3.24 because of the person's coverage under Chapter 3.24 cease to have any rights under Chapter 3.24 but shall thereafter be governed by and have only such rights as are provided for in this Chapter.

D.

Any such person who is reinstated and reenters Federated City Service and meets the definition of Tier 2 member under Section 3.28.030.28 at the time of reentry or reinstatement, shall become a Tier 2 member.

(Prior code § 2904.1151; Ords. 27838, 29120, 29904.)

If a person retired for disability under the provisions of Chapter 3.24 and the disability retirement allowance is canceled for either of the following reasons, then, subject to the exclusions and exceptions hereinafter set forth in Sections 3.28.460 through 3.28.550 inclusive of this Part, the person shall become and be a member of this Plan upon being reinstated to a position in Federated City Service or upon reentry into Federated City Service. If the person meets the definition of a Tier 2 member under Section 3.28.030.28 at the time he or she is reinstated or re-enters Federated City Service, the person shall become a Tier 2 member. Upon becoming a member of this Plan, any such person who formerly was retired for disability under the provisions of Chapter 3.24 ceases to have any rights thereunder but will thereafter be governed by and have only such rights as are provided for in this Chapter. This provision applies to:

A.

Any person retired for disability under the provisions of Chapter 3.24 whose disability retirement is canceled pursuant to the provisions of Section 3.24.1290 of the San José Municipal Code and who is reinstated, in accordance with the provisions of said Section 3.24.1290 to the City position held by him or her when retired for disability or to a position in the same classification of positions with duties within his or her capacity; or

B.

Any person retired for disability under the provisions of Chapter 3.24 whose disability retirement is canceled pursuant to the provisions of Section 3.24.1300 of the San José Municipal Code because of his or her reentry into Federated City Service in a position other than the position held when he or she retired for disability and other than any position in the same classification of positions as the position held when he or she retired for disability.

(Prior code § 2904.1152; Ords. 27838, 29120, 29904.)

retirement system pursuant to Section 3.24.510 or other provisions of Chapter 3.24 system.

Subject to the exclusions and exceptions hereinafter set forth in Sections 3.28.460 through 3.28.550, inclusive, of this Part, each person, other than persons covered by the provisions of Sections 3.28.400, 3.28.410 and 3.28.420, who was a member of the Plan as described in Chapter 3.24 and retained such membership upon leaving City service by exercising the option given him or her by Section 3.24.510 or other provisions of Chapter 3.24, shall become and be subject to the provisions of this Chapter pursuant to the provisions of this Section if, on or after July 1, 1975, while he or she is still a member of the Plan as described in Chapter 3.24, but before retirement thereunder for service or disability, he or she again becomes an officer or employee of the City in the Federated City Service. Upon the effective date the person again becomes an officer or employee in the Federated City Service, such person shall cease to be subject to the provisions of Chapter 3.24, and he or she and all other persons or estates that might have any rights under Chapter 3.24 because of such person's coverage under Chapter 3.24, shall cease to have any rights under Chapter 3.24, but shall thereafter be governed by and have only such rights as are provided in this Chapter. If such person meets the definition of Tier 2 member in Section 3.28.030.28 at the time he or she again becomes an officer or employee in the Federated City Service, the person shall become a Tier 2 member.

(Prior code § 2904.1153; Ords. 27838, 29120, 29904.)

Chapter 3.24 retirement system.

A.

Subject to the exclusions and exceptions hereinafter set forth in Sections 3.28.460 through 3.28.550 inclusive of this part, each person who on June 30, 1975, was in the employ of the city as a part-time employee, excepting such of them, if any, as may become members of this retirement system under and pursuant to the provisions of Section 3.28.400, shall have and is hereby given an option of becoming subject to the provisions of this Chapter 3.28 if he or she continued to be so employed as a part-time employee of the city to and through July 1, 1975.

B.

Each of said persons, in order to exercise said option, shall file with the secretary of the retirement board a written statement, on a form to be furnished by the Board upon his or her request, declaring that he or she elects to become subject to the provisions of this chapter. Said statement shall be filed on or before, and no later than, the thirty-first day of August, 1975. Upon filing said written statement with the secretary in the

manner and within the time specified in this section, such person shall become subject to the provisions of this chapter as of the effective date of this chapter. Contributions which would have been required of the person because of service rendered by him or her from July 1, 1975, to the date the person exercises said option shall be charged to him or her and deducted from his or her paycheck. No such person shall become subject to the provisions of this chapter unless he or she exercises said option in the manner and within the time specified in this section.

(Prior code § 2904.1154; Ord. 27838.)

September 30, 2012.

Subject to the exclusions and exceptions hereinafter set forth in this part, each person, other than those persons specified or mentioned in Sections 3.28.400 through 3.28.440, inclusive, who becomes an officer or employee of the city on or after July 1, 1975 by virtue of an appointment made on or after said date shall become and be a member of this plan as of the effective date of his or her appointment; provided, however, that the foregoing provisions of this section do not apply to persons employed to render part-time service.

(Prior code § 2904.1155; Ords. 27838, 29120.)

Subject to the exclusions and exceptions hereinafter set forth in this Part, each person other than those persons specified or mentioned in Sections 3.28.400 through 3.28.440, inclusive, who becomes an officer or employee of the City and meets the definition of Tier 2 member under Section 3.28.030.28, shall become and be a Tier 2 member of this Plan as of the effective date of his or her appointment, hire or rehire; provided however, that the foregoing provisions of this Section do not apply to persons employed to render part-time service.

(Ords. 29120, 29904.)

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because of his or her election or appointment to, or his or her holding the office of, mayor or member of the city council or because of any service rendered by him or her while he or she is mayor or a member of the council.

(Prior code § 2904.1156; Ord. 27838.)

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because of his or election or appointment to, or his or her membership in, any board or commission of the city, or because of his or her election or appointment to or his or her holding of any office in said board or commission, or because of any service rendered as a member or officer of any such board or commission.

(Prior code § 2904.1157; Ord. 27838.)

City Charter.

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because he or she is temporarily employed pursuant to the provisions of Subparagraph (4) of Subsection (a) of Section 1101 of the Charter of the city to make or conduct any special inquiry, investigation, examination or installation, or to render professional, scientific or technical services of an occasional or exceptional nature, nor because of any service rendered pursuant to such employment.

(Prior code § 2904.1159; Ord. 27838.)

1101(a)(5) of City Charter.

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because he or she is employed pursuant to Subparagraph (5) of Subsection (a) of Section 1101 of the Charter of the city in the event of an emergency to perform services required because of and during such emergency, nor because of any service rendered pursuant to such employment.

(Prior code § 2904.1160; Ord. 27838.)

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because he or she is employed or his or her services are contracted for pursuant to the provisions of Section 1109 of the City Charter or pursuant to any transfer, consolidation or contract mentioned in said Section 1109, nor because of any services rendered pursuant to any such employment or contract.

(Prior code § 2904.1161; Ord. 27838.)

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because of his or her appointment as or his or her being a volunteer member of any police, fire or civil defense department, force, agency or organization, nor because of any service rendered as such volunteer member.

(Prior code § 2904.1162; Ord. 27838.)

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because of any appointment or employment made or entered into pursuant to the provisions of Section 1110 of the Charter of the city, nor because of any service rendered pursuant to any such appointment or employment.

(Prior code § 2904.1163; Ord. 27838.)

Anything elsewhere to the contrary notwithstanding, unless otherwise provided by the city council upon recommendation of the retirement board, no person shall become or be a member of this plan because of his or her employment pursuant to any relief or antipoverty program where such employment is provided primarily to give relief or aid to such persons.

(Prior code § 2904.1164; Ord. 27838.)

Anything elsewhere to the contrary notwithstanding, no person shall become or be a member of this plan because of any appointment or employment as a police recruit or firefighter recruit or because of any appointment or employment for which the principal purpose is training such person to become a police officer or firefighter.

(Ords. 22677, 22735, 27838.)

A.

Anything elsewhere to the contrary notwithstanding, persons who are members of any police, fire or other retirement or pension system (other than this plan as described in this chapter or in Chapter 3.24, the federal social security system, or any retirement or pension system of the federal government) supported in whole or in part by funds of the United States government, or of any state government, or of this city or any other city or municipal government or corporation, or of any political subdivision, department, district, authority or agency of any such government or corporation, who are receiving or are entitled to any credit in such other system for any service rendered to the city are hereby excluded and excepted from membership in this plan; provided and excepting, however, that nothing contained in this section shall be deemed to prohibit any such person from becoming or being a member of this plan after the person has ceased being a member of the abovementioned police, fire or other system if the person should thereafter qualify for membership in this plan.

B.

For the purpose of this section, the following persons shall not be deemed to be members of any other retirement or pension system:

Persons who merely are receiving pensions or retirement allowances or other payments, from any source whatever, because of or on account of service rendered to an employer other than the City of San José while they were not in the employ or service of the city.

Persons whose membership in another retirement or pension system is in a reciprocal system, as defined in Part 21 of this chapter, and whose service in such other system is included as service in this plan solely for the purpose of meeting the minimum service requirements for qualification for benefits and retirement allowances pursuant to Subsection D. of Section 3.28.2420 of Part 21.

(Prior code § 2904.1165; Ords. 24682, 27838.)

Anything elsewhere to the contrary notwithstanding, no person appointed or employed as a part-time employee shall become or be a member of this plan because of such appointment or employment, or because of any service rendered pursuant to any such appointment or employment, unless he or she became or becomes a member of this plan under and pursuant to the provisions of Section 3.28.400 through 3.28.440, inclusive, or unless, having become a member of this plan under any of the foregoing sections of this part, and while rendering such full-time city service for the city as qualifies him or her to continue as a member of this plan, he or she discontinues such full-time service and, without a break in service, continues to render or does render city part-time service of a kind and nature not excluded or excepted by the provisions of Sections 3.28.460 through 3.28.550, inclusive, of this part.

(Prior code § 2904.1166; Ord. 27838.)

Except as otherwise provided in Sections 3.28.580 and 3.28.590, a person ceases to be a member of this plan upon the occurrence of any of the following events:

A.

Upon his or her death before retirement for service or disability;

B.

Upon his or her retirement for service or disability;

C.

Upon discontinuance of his or her federated city service because of resignation or discharge, or because of layoff or leave of absence found by the retirement board to have resulted in permanent discontinuance, and in the latter case as of the date of the determination by the board that the discontinuance is permanent.

(Prior code § 2904.1167; Ord. 27838.)

inclusive, to allow accumulated contributions to remain in fund.

A.

The provisions of this Section apply only to persons who became subject to the provisions of this Chapter pursuant to the provisions of Sections 3.28.400 through 3.28.430, inclusive of this Part.

B.

If the Federated City Service of a member described in subsection A. is discontinued by reason of resignation or discharge, or by reason of layoff or leave of absence deemed or found by the Retirement Board to have resulted in permanent discontinuance (and in such case, as of the date of determination by

the Board that the discontinuance is permanent), or if such member retires for disability under the provisions of this Chapter but such retirement is followed by a cessation of the disability because of which the member was retired, and his or her disability retirement allowance is canceled, but he or she does not thereupon reenter Federated City Service, then, in either of said events, if the amount of said member's accumulated normal contributions standing to his or her credit at that time is five hundred dollars ($500.00) or more, the member shall have the right to elect, not later than the ninetieth (90th) day from and after the date upon which notice of such right is mailed to him or her at the latest address on file with the Board:

To continue (or in the case of the abovementioned person whose disability retirement allowance was canceled, to renew) his or her membership by allowing all of his or her accumulated prior service contributions and all or part (but in no event less than five hundred dollars ($500.00) of his or her accumulated normal contributions to remain in the retirement fund; provided, however, that anyone who renews membership in the Plan on or after September 30, 2012 by virtue of employment begun on or after said date, shall become a Tier 2 member of this Plan as of the effective date of his or her renewed membership in the Plan; or

To terminate or not renew membership, as the case may be, by withdrawing all of his or her accumulated contributions.

C.

Failure to make such election within the above-specified time shall be deemed to be an irrevocable election to terminate or not renew membership, as the case may be, by withdrawing all of his or her accumulated contributions; provided and excepting, however, that if such member is entitled under this Plan to credit for twenty (20) or more years of Federated City Service, the failure to make such election within said time shall be deemed to be an election to continue or renew, as the case may be, his or her membership by allowing all of his or her accumulated contributions to remain in the retirement fund.

D.

An election to allow all or part of one's accumulated normal contributions to remain in the fund may be revoked at any time by said person as to all such normal contributions or as to any part of them in excess of five hundred dollars ($500.00).

E.

Upon electing to terminate or not renew membership by withdrawing all of his or her accumulated contributions, such person immediately:

Ceases to be a member of this Plan (or loses the right to renew his or her membership, as the case may be); and

Loses all rights to any credit for Federated City Service to which he or she was entitled hereunder; and

Except as may be otherwise provided elsewhere in this Plan, loses all other rights or privileges under this Plan excepting the right to the return of his or her said accumulated contributions, which said contributions shall be returned to the person forthwith.

F.

Upon electing to continue or renew membership by allowing all of his or her accumulated prior service contributions and all or part (but not less than five hundred dollars ($500.00)) of his or her accumulated normal contributions to remain in the retirement fund:

The said person continues to be or again becomes a member, and meets the definition of Tier 2 member under Section 3.28.030.28, said person shall become a Tier 2 member; and

The member and his or her survivors shall thereafter have such rights, if any, as are provided elsewhere in this Chapter 3.28 for the member and his or her survivors, except that, unless otherwise provided elsewhere in this Plan, he or she shall lose and shall no longer be entitled to credit for any Federated City Service on account of which such withdrawn contributions had been paid into the retirement fund. In determining the Federated City Service for which a person is no longer entitled to credit upon such partial withdrawal, the withdrawn contributions shall be deemed to have been paid into the retirement fund on account of the latest Federated City Service rendered by the person to the City, or on account of the person's earliest Federated City Service if so requested by said person at the time he or she withdraws a part of his or her accumulated normal contributions.

G.

A member may at any time, if he or she so elects, voluntarily relinquish such right as the member may have to be credited for Federated City Service for such periods of time as may be designated by him or her, without withdrawing any contributions paid by the member because of such service, provided he or she retains credit for not less than five years of continuous Federated City Service; and in such event, in determining the member's eligibility for or the amount of any benefits to which he or she may subsequently be entitled, the member shall be given no credit for any Federated City Service so relinquished, and any contributions left in the fund which were made because of the service for which the member has relinquished credit shall be treated as income of the retirement fund.

H.

If, on or after March 28, 2005, the member is to receive a distribution of an eligible rollover distribution, with a present value greater than one thousand dollars ($1,000.00), and if a member does not elect to have such distribution paid directly to an eligible retirement plan specified by member in a direct rollover or to receive the distribution directly, then the System shall pay the distribution in a direct rollover to an individual

retirement plan designated by the Board in accordance with Section 401(a)(31)(B) of the Internal Revenue Code and IRS Notice 2005-5.

(Prior code § 2904.1168; Ords. 27838, 28885, 29120, 29904.)

contributions to remain in fund.

A.

The provisions of this Section apply only to members of this Plan who are entitled to credit for five (5) or more years of Federated City Service rendered after June 30, 1975, and who are not covered by the provisions of Section 3.28.580.

B.

If the Federated City Service of a member described in subsection A. above is discontinued by reason of resignation or discharge or by reason of layoff or leave of absence which is determined by the Retirement Board to have resulted in permanent discontinuance (the effective date of such discontinuance to be the date of said determination by the Board), then such member shall have the right to elect:

To continue membership in this System by allowing all of his or her accumulated contributions to remain in the retirement fund; or

To terminate membership in this System by withdrawing all of his or her accumulated contributions.

C.

If a member described in subsection A. above retires for disability but the disability retirement allowance is canceled because of a cessation of the disability for which the member retired and such member does not thereupon reenter Federated City Service, then such member shall have the right to elect:

To renew membership in this System by allowing all of his or her accumulated contributions to remain in the retirement fund; provided however, that; if said person renews membership and meets the definition of Tier 2 member under Section 3.28.030.28, said person shall become a Tier 2 member; or

Not to renew membership in this System by withdrawing all of his or her accumulated contributions.

D.

The election described in subsections B. and C. shall be made not later than the ninetieth (90th) day from and after the date notice of the right to make such election is mailed to the member at the latest address on

file with the Board.

In the case of a member entitled to credit for less than twenty (20) years of Federated City Service, failure to make such election within said ninety (90) days shall be deemed to be an irrevocable election to terminate or not renew, whichever is applicable, membership in this System by the withdrawal of all of the member's accumulated contributions.

In the case of a member entitled to credit for twenty (20) or more years of Federated City Service, failure to make such election within said ninety (90) days shall be deemed to be an election to continue or renew, whichever is applicable, membership in this System by allowing all of the member's accumulated contributions to remain in the retirement fund.

E.

Upon electing to terminate or not renew membership in this System pursuant to subsection B., C. or D. above, the person immediately:

Ceases to be a member of this System or loses the right to renew membership in this System, whichever is applicable; and

Unless otherwise provided elsewhere in this Chapter, loses all credit for any Federated City Service to which he or she was entitled under this System; and

Loses all other rights and privileges under this System except the right to the return of his or her accumulated contributions, and such contributions shall be returned to such person forthwith.

F.

Upon electing to continue or renew membership in this System, whichever is applicable, by allowing all of his or her accumulated contributions to remain in the fund, the person:

Continues to be, or again becomes, a member of this System; provided, however that said person again becomes a member of this System and meets the definition of Tier 2 member under Section 3.28.030.28, said person shall become a Tier 2 member;

Shall continue to be entitled to credit for such Federated City Service as he or she was entitled as of the time the person made such election; and

Shall thereafter have such rights, if any, as are provided in this Chapter for such person or such person's survivors.

G.

If, on or after March 28, 2005, the member is to receive a distribution of an eligible rollover distribution, with a present value greater than one thousand dollars ($1,000.00), and if a member does not elect to have such distribution paid directly to an eligible retirement plan specified by member in a direct rollover or to receive the distribution directly, then the System shall pay the distribution in a direct rollover to an individual retirement plan designated by the Board in accordance with Section 401(a)(31)(B) of the Internal Revenue Code and IRS Notice 2005-5.

(Prior code § 2904.1169; Ords. 21371, 23485, 27838, 28885, 29120, 29904.)