San Jose Municipal Code Part 10A Reemployment of Disability Retiree

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

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

(Ord. 19839.)

A. Subject to the civil service rules, regulations and requirements of the City, a person who has been retired for disability pursuant to Part 17 or Part 18 of Chapter 3.24 or Part 10 of Chapter 3.28 of this Code may be reemployed from time to time in City service pursuant to voluntary agreement of both the City and such person, in any positions or offices other than the position or office held by that person at the time of such retirement whether in the same or another classification, if, based on medical and physical examination, the person is not incapacitated for performance of duty in any such new position or office, notwithstanding that he or she is still incapacitated for performance of duty in the position or office held at the time of such retirement and in any other office or position in the same classification of offices or positions as the one held at the time of such retirement. If such person is reemployed on or after September 30, 2012 and the reemployed person meets the definition of Tier 2 member under Section 3.28.030.28, such person shall become a Tier 2 member of this System as of the date of his or her reentry into the Federated City Service.

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

(Ords. 19839, 27838, 29120, 29904.)

A. Upon a person's reentry into City service pursuant to Section 3.28.1442, the disability allowance granted pursuant to Part 17 or Part 18 of Chapter 3.24 or Part 10 of Chapter 3.28 of this Code shall be suspended and the City shall compensate the person at the greater of:

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

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

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

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

(Ords. 19839, 27838, 29120, 29904.)

Upon reinstatement of membership in this System under Part 10A, the recipient of a disability retirement allowance shall become a member of this System and regain credit for those years of service to which he or she was entitled at the time he or she retired for disability; provided, however, that if such person's reinstatement occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, then the member shall be a Tier 2 member and any subsequent retirement allowance payable on or after September 30, 2012 shall be computed under the provisions applicable to Tier 2 members.

(Ords. 19839, 29120, 29904.)

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

B. Upon any such recipient's application for reinstatement from disability retirement to active duty, the Board shall refer the matter to the independent medical panel for evaluation. The recipient of the disability allowance may submit a medical report by his or her own physician or surgeon. Upon the basis of such examination and other relevant evidence, the independent medical panel shall determine whether the recipient is still incapacitated for the performance of duty in the position or office held by him or her at the time he or she retired for disability, or in another position or office in the same classification of positions or offices as the one in which he or she was included at the time he or she was so retired. If the independent medical panel finds that he or she is not so incapacitated, it shall make a written finding to that effect; whereupon, unless expressly provided elsewhere in this Part 10A, the disability retirement allowance shall thereupon immediately cease and be terminated.

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

(Ords. 19839, 29904.)

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

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

(Ords. 19839, 27838, 29120, 29904.)

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

(Ords. 19839, 29120, 29904.)

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

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

(Ords. 19839, 29904.)

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

(Ord. 19839.)

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

(Ord. 19839.)

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

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

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

If he or she is retired from his or her latest position pursuant to the above provisions of paragraph B, and if, thereafter, the disability because of which he or she was given his or her latest retirement should cease and all retirement allowances payable to him or her because of his or her latest disability retirement should cease, but his or her disability for the performance of duty in the position originally held by him or her or in any other position in the same classification of positions originally held by him or her has not ceased, then his or her original disability retirement and original disability retirement allowance shall be reinstated, to continue so long as his or her original disability exists. Such original disability allowance shall be in the amount last paid prior to its termination and shall not be modified solely by reason of the additional period of time succeeding its original determination during which the recipient has been reemployed under this Part 10A, nor shall it be increased or decreased by reason of any compensation earnable during the period of reemployment.

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

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

(Ords. 19839, 29120, 29904.)

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

(Ord. 19839.)

Notwithstanding anything to the contrary in Chapter 3.20 through Chapter 3.28 of this Code, upon written election by the City and a disability retiree reemployed under this Part 10A, such retiree may at any time prior to six (6) months before age seventy (70) and notwithstanding the limitations in Section 3.28.1448 be reinstated from disability retirement and the disability retirement allowance may be terminated in accordance with procedures and on the grounds set forth in Sections 3.28.1446 and 3.28.1449.2, notwithstanding that City does not offer the person the same position or office from which he or she was retired, or a position or office in the same classification of offices or positions which included him or her at such time provided that City offers and the person accepts the latest position or office of reemployment in which the person is employed; thereafter, for the purposes of this Part 10A and Section 3.28.030.06, compensation earnable for such position or office shall be the regular compensation therefor undiminished by such amounts as would otherwise have been paid as a disability retirement allowance to such person; provided, however, that if such person is reinstated to a position and meets the definition of Tier 2 member under Section 3.28.030.28, such person shall become a Tier 2 member and any subsequent retirement allowance payable on or after September 30, 2012 shall be computed under the provisions applicable to Tier 2 members.

(Ords. 19839, 29120, 29904.)

A. The provisions of Section 3.28.580 under which an election is an election granted to the persons specified therein to allow accumulated contributions to remain on deposit with the fund shall be deemed to grant a similar election to a Part 1, Chapter 3.24 disability retiree upon and after his reemployment by the city under this Part 10A. For the purpose of this Part 10A a former member of the Part 1, Chapter 3.24 retirement system reemployed hereunder while on disability retirement but receiving a disability retirement allowance shall be deemed a person reinstated from Part 1, Chapter 3.24 disability retirement within the meaning of Sections 3.28.420, 3.28.480.C. and 3.28.480.F. notwithstanding that the disability retirement and disability retirement allowance continue and neither cease nor are canceled, and there is no reinstatement from disability under Section 3.24.1290 or 3.24.1300.

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

(Ord. 19839.)

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

(Ords. 19839, 29120, 29904.)

A person reemployed under this Part 10A is not eligible for a service retirement under the Part 1 of Chapter 3.24 or Part 1 of Chapter 3.28 plan by reason of disability retirement or the receipt of a disability retirement allowance under either such plan; however such disability retirement and allowance therefore shall immediately cease and terminate upon service retirement under either such plan.

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

(Ord. 19839.)

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

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

(Ords. 19839, 26355.)

A person who has been retired for service pursuant to the provisions of this Part may apply to the Retirement Board, in writing, for reinstatement from such retirement for the purpose of reentering City service. The Board may reinstate him or her from retirement if it finds: (a) that his or her age at the date of his or her application is at least six (6) months less than seventy (70) years of age; (b) that, based on medical and physical examination, he or she is not incapacitated to perform the duties of the office or position in the City service to which it is proposed he or she be appointed. Upon such reinstatement, said person may be reemployed by the City, in the same manner as it employs persons who have not been retired hereunder, to render City service and if such reemployment occurs on or after September 30, 2012 and the person meets the definition of Tier 2 member under Section 3.28.030.28, the person shall become a Tier 2 member.

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

(Ords. 19839, 29120, 29904.)

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

(Ord. 19839.)

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

(Ord. 19839.)

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

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

(Ords. 19839, 29120.)