San Jose Municipal Code Part 1 General Provisions and Definitions

A. There is hereby established a retirement plan for all persons, hereinafter in this chapter specified, who may become members thereof pursuant to the provisions of this Chapter 3.36. This plan shall be known as the "1961 police and fire department retirement plan," and includes all provisions of this chapter.

B. The 1961 police and fire department retirement plan is established as a qualified governmental defined benefit plan pursuant to Sections 401(a) and 414(d) of the Internal Revenue Code or such other provision of the Internal Revenue Code as applicable and applicable treasury regulations and other guidance of the Internal Revenue Service. The board shall be authorized to adopt rules and regulations which are appropriate or necessary to maintain the qualified status of the plan.

(Prior code § 2903.50; Ords. 28886, 29198, 29879.)

Unless the context otherwise requires, the definitions and general provisions set forth in this Part 1 govern the construction of this Chapter 3.36.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914.)

"Accumulated contributions" means the sum of all contributions made by a member and standing to the credit of a member's individual account.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914.)

"City" means the City of San José, a municipal corporation of the state of California.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914.)

A. "Compensation" means the monthly remuneration paid in cash out of funds controlled by the City to a member in payment for his or her services to the City, excluding the monetary value, if any, of living quarters, board, lodging, fuel, laundry or other advantages of any nature furnished a member in payment of his or her services. Also, when the compensation of a member is a factor in any computation to be made under this Chapter, there shall be excluded from such compensation any payments based on overtime put in by a member except as expressly provided in subsection C below; any travel or uniform or expense allowance; any insurance or medical or surgical or hospital benefits; any workers' compensation benefits except as expressly provided in subsection G. below; peace officer standards training pay except as expressly provided in subsection H. below; any retirement or death or survivorship benefits; any payments paid on a per diem, per hour or any other basis than a monthly basis; and any and all other fringe benefits or items of pay not expressly included in the definition of Compensation under this section 3.36.020.3.

B. "Compensation" shall include holiday pay or any compensation paid to a member in lieu of holiday pay in the case of:

Any member who retires under the provisions of this Chapter, either for service or disability, on or after July 5, 1992; and

Any former member who separates from City service on or after July 5, 1992, and elects to allow his or her accumulated contributions to remain in the retirement fund pursuant to Section 3.36.1640.

Effective June 28, 2009, compensation in lieu of holiday pay paid to members of this Plan who are employed in the Police Department is incorporated into base pay and thus considered Compensation under subsection A for employees of the Police Department on and after such effective date. Effective October 7, 2018, compensation in lieu of holiday pay paid to members of this Plan who are employed in the Fire Department is incorporated into base pay and thus considered Compensation under subsection A for employees of the Fire Department on or after such date.

C. "Compensation" shall include premium pay paid pursuant to the Fair Labor Standards Act (FLSA premium pay) for regularly scheduled hours for employees who perform fire suppression duties and are assigned to a work schedule in excess of 212 hours in a 28 day work period, subject to the following limitations:

1. "Compensation" shall only include FLSA premium pay which is earned and payable on or after December 28, 1997.

2. "Final compensation" including FLSA premium pay shall not exceed the one hundred eight percent (108%) limitation imposed by Section 3.36.020 5.B.2.

3. This subsection C. shall apply only in the case of:

a. A member who retires under the provisions of this Chapter, either for service or disability, on or after July 5, 1998; and

b. A former member who separates from City service on or after July 5, 1998, and elects to allow his or her accumulated contributions to remain in the retirement fund pursuant to Section 3.36.1640; and

c. A member who dies on or after July 5, 1998, while in City service for which the member receives service credit in this Plan.

D. "Compensation" shall include incentive pay for successful completion, on an annual basis, of training in Police Anti-Terrorist Tactics as certified by the Police Department to the City Finance Department. Effective March 22, 2009, incentive pay for training in Police Anti-Terrorist Tactics is incorporated into base pay and thus considered Compensation under subsection A on and after such date.

E. "Compensation" shall include incentive pay for completing and maintaining an Emergency Medical Technician (EMT) certificate, but only such EMT incentive pay which is earned and payable on or after July 7, 1991. Effective October 7, 2018, EMT incentive pay is incorporated into base pay and thus considered Compensation under subsection A on and after such date.

F. "Compensation" shall include anti-terrorism training pay received by members of the Plan who are employed in the Fire Department, but only such pay which is earned and payable on or after July 1, 2006. Effective October 7, 2018, anti-terrorism training pay received by members of this Plan who are employed in the Fire Department is incorporated into base pay and thus considered Compensation under subsection A on and after such date.

G. "Compensation" shall include disability leave payments paid by the City to a member pursuant to which a member continues to receive full monthly compensation, including but not limited to, disability leave payments made pursuant to Labor Code Section 4850.

H. "Compensation" shall include Peace Officer Standards Training (POST) payments paid by the City to a member except that only POST payments received by such Tier 2 member on or after March 31, 2017 shall be a factor for any computation made under this Chapter.

I. Notwithstanding any other provisions of Chapter 3.36, "Compensation" shall not include any non-pensionable compensation increase, which represents a wage increase, that is effective on or after January 3, 2016. Compensation also shall not include any subsequent increases to non-pensionable compensation due to future increases to base pay, such as merit increases, step increases, and general wage increases.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 26693, 28164, 28830, 29266, 29879, 30173, 30724.)

"Employee" means any person in the employ of the city, or who holds a city office, whose compensation is paid out of funds directly controlled by the city. "Funds directly controlled by the city" includes funds deposited in and disbursed from the city treasury in payment of compensation, regardless of their source. The word "employee" shall be deemed to include the word "officer."

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914.)

A. For a member of this plan who retires, either for service or disability, before January 1, 1970, "final compensation" means the highest average monthly compensation of the member during any period of thirty-six consecutive months of city service for which such member receives service credit in this plan.

B. For a member of this plan, other than a tier 2 member, who retires, either for service or disability, on or after January 1, 1970, "final compensation" means:

1. For the purpose of determining the amount of monthly retirement allowance or monthly survivorship allowance payable for any month or portion of a month prior to September 1, 1970, the highest average monthly compensation of the member during any period of thirty-six consecutive months of city service for which the member receives service credit in this plan.

2. For the purpose of determining the amount of monthly retirement allowance or monthly survivorship allowance payable for any month or portion of a month on or after September 1, 1970, the highest average monthly compensation of the member during any period of twelve consecutive months of city service for which the member receives service credit in this plan; provided and excepting, however, that in determining such final compensation no consideration or credit shall be given to or for that portion, if any, of the compensation paid or payable by the city to said member for service rendered during the last twelve months of said member's city service which exceeds one hundred eight percent of the compensation paid or payable to the member for city service rendered during the twelve months immediately preceding the last twelve months of the member's city service.

C. If an employee leaves city service and subsequently returns to city service, months of service before and after the absence from service may be cumulated to constitute the period of thirty-six consecutive months or twelve consecutive months, whichever is applicable, notwithstanding the absence from service.

D. If any benefit is dependent upon the amount of service of a member, and the member has less than thirty-six months of city service or less than twelve months of city service, whichever is applicable, then the amount of service the member actually has shall be used in the calculation of the member's final compensation.

E. For tier 2 members, "final compensation" means the average annual compensation as defined in Section 3.36.020.3H. of the tier 2 member during the highest three consecutive years of city service.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 28831, 29266.)

"Member" means any person included in the membership of this system, and includes those persons only who are specified as such in Part 2 of this chapter.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914.)

Except as otherwise expressly provided, "month" means a calendar month.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914.)

"Plan year" means July 1 to June 30.

(Ord. 28886.)

"Retirement" or "retired" means withdrawal from city service pursuant to an order of the retirement board with a retirement allowance granted under this chapter.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 28886.)

"Retirement allowance" means the service retirement allowance or the disability retirement allowance.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 28886.)

"Retirement board" or "board" means the board of administration referred to and specified in Section 3.36.300 of this chapter.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 28886.)

"Retirement fund" or "fund" means the retirement fund specified in Section 3.36.500.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 28886.)

"Retirement system," "retirement plan," "this system," or "this plan" means the City of San José Police and Fire Department Retirement Plan described in Section 3.36.110.

(Prior code §§ 2903.51 - 2903.63; Ords. 24094, 24200, 25914, 27768, 28886.)

A. "Domestic partnership" means:

1. A registered domestic partnership that has been established by filing a Declaration of Domestic Partnership with the Secretary of State pursuant to Division 2.5 of the California Family Code; or

2. A legal union of two (2) persons of the same sex, other than a marriage, that was validly formed in a jurisdiction other than California if such union is recognized as a domestic partnership pursuant to California Family Code Section 299.2.

B. "Domestic partner" means a person who has entered into a domestic partnership.

(Ords. 27712, 28886.)

"Tier 2 member" means:

A. Any person who is hired, rehired, or reinstated by the City as an employee of the Police Department in a position covered by this Plan on or after August 4, 2013; or

B. Any person who is hired, rehired, or reinstated by the City as an employee of the Fire Department in a position covered by this Plan on or after January 2, 2015.

C. Notwithstanding the foregoing, the following persons shall not be considered Tier 2 members under this Plan and their benefits shall be determined under the same terms as those members hired prior to the dates specified in subsections A. and B. of this Section:

1. Any person who was a member of this Plan as an employee of the Police Department prior to August 4, 2013, and terminated employment with the City without a return of his or her contributions, and returned to employment with the City in a position covered by this Plan on or after August 4, 2013; or

2. Any person who was a member of this Plan as an employee of the Fire Department prior to January 2, 2015, and terminated employment with the City without a return of his or her contributions, and returned to employment with the City in a position covered by this Plan on or after January 2, 2015; or

3. Any person accepting employment in the Police Department or Fire Department of the City on or after January 1, 2013 who is otherwise eligible for this Plan and who was an active member in another California public retirement system with which this Plan has reciprocity under Part 16, and who has a break in service of less than six (6) months from that covered employment and employment with the City, other than those who meet the definition of new members as defined by Government Code Section 7522.04(f) as may be amended; or

4. Any person who, prior to September 30, 2012, was a member of the Federated City Employees Retirement System established under Chapter 3.24 or the 1975 Federated City Employees Retirement Plan established under Chapter 3.28 and terminated employment with the City without a return of his or her contributions, and later returned to employment with the City in a Police Department position covered by this Plan on or after September 30, 2012; or

5. Any person who, prior to September 30, 2012, was a member of the Federated City Employees Retirement System established under Chapter 3.24 or the 1975 Federated City Employees Retirement Plan established under Chapter 3.28 and terminated employment with the City without a return of his or her contributions, and later returned to employment with the City in a Fire Department position covered by this Plan on or after September 30, 2012.

(Ords. 29266, 29511, 29879, 30007, 30145.)

"Independent medical panel" means the independent medical review panel or disability review panel appointed by the retirement board as specified in Section 3.36.380 of this chapter.

(Ord. 29879.)

"New employee" means any employee initially hired to the police department on or after August 4, 2013, or initially hired to the fire department on or after January 2, 2015.

(Ord. 29879.)

Unless the context requires otherwise, as used in this chapter the masculine gender includes the feminine and the feminine includes the masculine.

(Prior code § 2903.69; Ord. 23807.)

The effective date of this chapter and of this retirement plan is and shall be the first day of February, 1962; and the words "effective date of this chapter," as used in this chapter, shall be deemed to mean and refer to said first day of February, 1962.

(Prior code § 2903.68.)

Any notice or order given by the retirement board to any person shall be effective upon the deposit of such notice or order in the United States mail, postage prepaid, addressed to such person at the address of such member as said address is shown on the records of the retirement board.

(Prior code § 2903.64.)

Notwithstanding anything in Chapters 3.16 through 3.44 to the contrary, whenever monthly references are used in connection with contributions or membership under the police and fire department retirement plan and/or the 1961 police and fire department retirement plan, such references shall be deemed to mean biweekly from and after the effective date of the ordinance codified herein. The purpose and intention of this amendment is to change the time at which contributions are to be made to the police and fire department retirement plan and/or the 1961 police and fire department retirement plan and to assure that no one is deprived of membership in either of said plans because of receiving salary on a biweekly basis.

(Prior code § 2903.71.)

A. In addition to any other grounds which the retirement board may have by virtue of other provisions of this chapter for terminating or canceling any allowance or benefit which would otherwise be payable to any person or persons pursuant to the provisions of this chapter the board may, in its discretion, permanently terminate or temporarily suspend any allowance or benefit, or portion of any allowance or benefit, which would otherwise be payable to any person or persons under and by virtue of the provisions of this chapter if the person or persons to whom such allowance or benefit should otherwise be payable should wilfully disobey any lawful order of the retirement board or wilfully violate any provisions of this chapter. The board, in suspending any allowance or benefit, or any portion thereof, may suspend the same for such period of time as it may deem just or reasonable, and may impose such conditions as it may deem just or reasonable for reinstatement of any such allowance or benefit.

B. In the event any service retirement allowance or disability retirement allowance otherwise payable to any person under and by virtue of the provisions of this chapter should be permanently terminated pursuant to the provisions of this section, and if the person who would have otherwise been entitled to such allowance should die thereafter, neither his surviving spouse nor his surviving child or children nor his estate shall be entitled to any allowances or benefits whatsoever under the provisions of this system.

(Prior code § 2903.67.)

A. The right of a person to a pension, an annuity or a retirement allowance, to the return of contributions, the pension, annuity or retirement allowance itself, any optional benefits, any other right or benefit accrued or accruing to any person under the provisions of this chapter, and the moneys in the fund created herein shall not be subject to execution, garnishment, attachment, or any other process whatsoever, and shall not be assignable except as herein specifically provided or as specified in Subsection B.

B. Voluntary deductions which are permitted by rules and regulations approved by the board of administration of the police and fire department retirement plan may be made from pension benefits payments where authorized in writing by the benefit payee.

(Prior code § 2903.65; Ord. 29035.)

Each and every claimant of any allowance or benefit under this chapter shall at all times bear the burden of proving all such facts, circumstances and conditions as must be established or otherwise proved to entitle such claimant to any allowance or benefit under this chapter.

(Prior code § 2903.70.)

If any section, subsection, paragraph or portion of this chapter is for any reason declared to be invalid or unconstitutional, such decision shall not affect the validity of the remainder or remaining portion of this chapter. The city council does hereby declare that it is its intention to enact and pass each section, subsection, paragraph and portion of this chapter independently of each and every other part.

(Prior code § 2903.66.)

Notwithstanding anything to the contrary in Chapters 3.32 and 3.36 of Title 3 of the San José Municipal Code, the elements of the plan set forth in Chapter 3.32 and the elements of the plan set forth in Chapter 3.36 are components of a single retirement system known as the City of San José Police and Fire Department Retirement Plan.

(Ord. 27768.)

A. Upon the termination of this plan or upon the complete discontinuance of contributions under the plan, the rights of each member, former member and beneficiary to benefits accrued to the date of such termination or discontinuance shall be nonforfeitable.

B. Upon the complete termination of this plan, the board shall perform all of the following:

1. Liquidate the assets of the retirement fund.

2. Pay all of the accrued administrative expenses of the plan, including the expenses of liquidation.

3. Determine the rights of each member, former member and beneficiary to benefits accrued to the date of termination, and ensure that all such benefits have been or are paid to the respective persons.

4. Allocate any assets in the supplemental retiree benefit reserve to the then existing retired members, survivors of members, and survivors of retired members using the distribution methodology most recently approved by the city council.

C. Upon the termination of this plan and the satisfaction of all liabilities described in Subsection B. above, the board shall allocate any remaining assets of the retirement fund to the members of the plan on the basis of years of service and final compensation credited to the member at the time of termination of the plan.

(Ord. 27768.)

"Plan year" means the consecutive twelve-month period beginning on July 1 and ending on June 30 of the following calendar year.

(Ord. 28773.)

"Limitation year" means the calendar year.

(Ord. 28773.)