San Jose Municipal Code Part 2 Membership

Except as may be otherwise provided in this chapter, all of the persons hereinafter specified in this Part 2 and none other, shall be members of this retirement system and shall be subject to its provisions.

(Prior code § 2903.75.)

Anything in this chapter to the contrary notwithstanding, the following persons are excluded from membership in this system:

A. Independent contractors who are not employees of the city.

B. Persons in city service principally for training or educational purposes, whether or not they receive any compensation.

C. Auxiliary or voluntary police officers or fire fighters, whether or not they receive any compensation.

D. Persons serving or employed on a part-time basis. An employee is serving on a part-time basis when the employee engages in his or her duties for less time than is required of employees serving on full-time basis, even though the employee is subject to call at any time.

E. Persons serving or employed or paid on a per diem, per hour, or any other basis other than a monthly basis.

F. Except as provided in Part 16 of this chapter, persons who are members of any other retirement or pension system and who are receiving credit in such other system for services are, as to such service, excluded from this system. For purposes of this subsection, persons who merely are receiving pensions or retirement allowances or other payments, from any source whatever, on account of service rendered to an employer other than the City of San José and while they were not in city service, are not, because of such receipt, members of another retirement system.

(Prior code § 2903.85; Ord. 24681.)

A. Subject to and except as otherwise provided by other provisions of this chapter, each person appointed on or after the effective date of this chapter to any of the following positions or classes of positions in the police department shall be a member of the plan as described in this chapter, and shall be subject to the provisions of this chapter, as of the date of such appointment to such position, as follows: chief of police; assistant chief of police; deputy chief; chief of uniform division; chief of detectives; inspector of operations; chief of technical services; chief of prevention and control division; police captain; police lieutenant; police sergeant (detective); police sergeant; juvenile officer; police officer; police woman; assistant police woman; and automotive registration technician, but only if the person appointed to the latter position held the position of senior identification officer on February 1, 1962, and became a member of this retirement plan as of February 1, 1962, and was also a member of this plan immediately prior to his appointment to the position of automotive registration technician. If an individual is hired, rehired or appointed to one of the above specified positions on or after August 4, 2013, and meets the definition of a tier 2 member under Section 3.36.020.15, such individual will be a tier 2 member.

B. A person retired for disability prior to the effective date of this chapter pursuant to the provisions of Chapter 3.32 of this Code who is restored to active duty upon cessation of his or her disability after the effective date of this chapter, shall not be deemed to be a "person who is appointed on or after the effective date of this chapter," as such words are used in this section; provided, however, if such person is rehired or reappointed on or after August 4, 2013, such person shall become a tier 2 member except as otherwise provided in Section 3.36.020.15.

C. Anything hereinabove to the contrary notwithstanding, no person shall be deemed to have become a member of this retirement plan because of his or her appointment to any of the above-specified positions on or after the effective date of this chapter if as of the date of such appointment he or she is a member of the police and fire department retirement plan established by Chapter 3.32, unless he or she has been or is given and has exercised or exercises pursuant to other provisions of this chapter an option to become subject to the provisions of this chapter in lieu of remaining subject to the provisions of Chapter 3.32 of this Code.

(Prior code § 2903.76; Ords. 27768, 29266, 29879.)

Editor's note— Ord. No. 29879, § 22, adopted Feb. 28, 2017, repealed § 3.36.175, which pertained to tier 2 members on or after August 4, 2013, and derived from Ord. 29266.

A. Except as may otherwise be provided in this chapter, each person who on the effective date of this chapter holds any of the following positions or classes of positions in the police department by virtue of an appointment made prior to the effective date of this chapter, and who, in addition, is on such date a member of the police and fire department retirement plan established by Chapter 3.32, shall have the option of becoming subject to the provisions of this chapter. Said positions are: chief of police, chief of detectives, inspector of operations, police captain, Assistant chief of police, police lieutenant, police sergeant (detective), juvenile officer, police officer, police woman, traffic analyst, senior identification officer, and identification officer.

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 said board upon his or her request, declaring that he or she elects to be subject to the provisions of the retirement plan as described in this chapter. Said statement shall be filed as aforesaid on or before and no later than the ninetieth day immediately following the effective date of this chapter; excepting, however, that any such person who on the effective date of this chapter is on temporary leave because of active service in the Armed Forces of the United States may file said statement electing to be subject to the provisions of this chapter with the secretary on or before and no later than the ninetieth day immediately following the date of expiration of his or her leave or his or her return to duty, whichever is earlier. Upon filing said written statement with the secretary in the manner and within the time hereinabove specified, such person shall be deemed to be subject to the provisions of this chapter as of the effective date of this chapter. Each such person so electing to become subject to the provisions of this chapter shall cease being subject to the provisions of the retirement system as established by Chapter 3.32 of this Code as of the date he or she becomes subject to the provisions of this chapter and shall have no further rights under Chapter 3.32. Anything elsewhere to the contrary notwithstanding, no such person shall become entitled to the benefits provided under this chapter unless he or she exercises said option as aforesaid.

(Prior code § 2903.78; Ord. 27768.)

Editor's note— Ord. 27768, § 6, adopted June 20, 2006, repealed § 3.36.185, which pertained to withdrawal from plan by chief of police.

Editor's note— Ord. 27768, § 7, adopted June 20, 2006, repealed § 3.36.190, which pertained to withdrawal of contributions by chief of police.

A. Subject to and except as otherwise provided by other provisions of this chapter, each person appointed on or after the effective date of this chapter to any of the following positions or classes of positions in the fire department shall be a member of the plan as described in this chapter, and shall be subject to the provisions of this chapter, as of the date of such appointment to such position, as follows: fire chief; deputy fire chief; assistant fire chief; fire prevention chief; fire marshal; battalion chief; district chief; fire district chief; fire training officer; assistant fire marshal; fire captain; assistant fire training officer; senior fire prevention inspector; fire engineer; firefighter; fire master mechanic; and assistant fire master mechanic. If an individual is hired, rehired or appointed to one of the above specified positions on or after January 2, 2015, and meets the definition of a tier 2 member under Section 3.36.020.15, such individual will be a tier 2 member.

B. A person retired for disability prior to the effective date of this chapter pursuant to the provisions of Chapter 3.32 of this Code who is retired [restored] to active duty upon cessation of his or her disability after the effective date of this chapter shall not be deemed to be a "person who is appointed on or after the effective date of this chapter" as such words are used in this section; however if such person is rehired or reappointed on or after January 2, 2015, such person shall become a tier 2 member except as otherwise provided in Section 3.36.020.15.

C. Anything hereinabove to the contrary notwithstanding, no person shall be deemed to have become a member of this retirement system because of his or her appointment to any of the above-specified positions on or after the effective date of this chapter if as of the date of such appointment he or she is a member of the police and fire department retirement plan established by Chapter 3.32 unless he or she has been or is given and has exercised or exercises pursuant to other provisions of this chapter an option to become subject to the provisions of this chapter in lieu of remaining subject to the provisions of Chapter 3.32 of this Code.

(Prior code § 2903.77; Ords. 27768, 29879.)

Notwithstanding the provisions of Section 3.36.200, any person who is appointed to the position of fire chief or police chief, with an effective employment start date on or after August 1, 2010, shall not become or be a member of this retirement system if on the effective date of such person's appointment:

A. The person is not entitled to credit for service in this retirement system; and

B. The person is not entitled to redeposit withdrawn accumulated contributions pursuant to Section 3.36.710.

(Ord. 28749.)

Editor's note— Ord. 27768, § 9, adopted June 20, 2006, repealed former § 3.36.05, which pertained to exclusion of fire chief with no prior service credit.

A. Except as may otherwise be provided in this chapter, each person who on the effective date of this chapter holds any of the following positions or classes of positions in the fire department by virtue of an appointment made prior to the effective date of this chapter and who, in addition, is on such date a member of the police and fire department retirement plan established by Chapter 3.32 of this Code, shall have the option of becoming subject to the provisions of this chapter. Said positions are: fire chief, assistant fire chief, fire prevention chief, battalion chief, fire captain, firefighter, and fire master mechanic.

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 be subject to the provisions of the retirement plan as described in this chapter. Said statement shall be filed as aforesaid on or before and no later than the ninetieth day immediately following the effective date of this chapter, excepting, however, that any such person who on the effective date of this chapter is on temporary leave because of active service in the Armed Forces of the United States may file said statement electing to be subject to the provisions of this chapter with the secretary on or before and no later than the ninetieth day immediately following the date of expiration of his or her leave or his or her return to duty, whichever is earlier. Upon filing said written statement with the secretary in the manner and within the time hereinabove specified, such person shall be deemed to be subject to the provisions of this chapter as of the effective date of this chapter. Each such person so electing to become subject to this chapter shall cease being subject to the provisions of the retirement plan as established by Chapter 3.32 as of the date he or she becomes subject to the provisions of this chapter and shall have no further rights under Chapter 3.32. Anything elsewhere to the contrary notwithstanding, no such person shall become entitled to the benefits provided under this chapter unless he or she exercises said option as aforesaid.

(Prior code § 2903.79; Ord. 27768.)

A. Any person who was given by Section 3.36.180 or Section 3.36.210 of this chapter an option to become subject to the provisions of this chapter but failed for any reason to exercise such option, is hereby given a new option to become subject to the provisions of this chapter if he or she has continuously, from February 1, 1962 (the effective date of this chapter) to and including the date of exercise of such new option, held a position which would have entitled him or her to be subject to this chapter during all such time had he or she exercised such original option.

B. Each of said persons, in order to exercise said option, shall on or before November 15, 1968:

1. File with the secretary of the retirement board a written statement, on a form to be furnished to him or her on his request by the board, declaring that he or she elects to be subject to the provisions of the retirement system as described in by this chapter; and

2. At the time of filing said written statement pay into the retirement fund:

a. A sum equal to the difference between what he or she would have paid had he been subject to the provisions of this chapter from the effective date of this chapter to the date upon which he or she exercises such option and what he or she actually paid during said period pursuant to Chapter 3.32; plus

b. Such interest thereon as the retirement board may deem reasonable. Only that sum designated in subdivision a. above shall be credited to such person's account and be considered accumulated contributions.

C. Upon filing said written statement within the time and in the manner hereinabove specified, said person shall be deemed to be subject to the provisions of this chapter, as of the effective date of this chapter. Such person, upon electing to become subject to the provisions of this chapter, shall cease being subject to the provisions of the retirement plan as established by Chapter 3.32 as of the date he or she becomes subject to the provisions of this chapter and shall have no further rights under Chapter 3.32. Anything elsewhere to the contrary notwithstanding, such person shall not become entitled to the benefits provided under this chapter unless he or she exercises said option as aforesaid.

(Prior code § 2903.86; Ord. 27768.)

That certain person who on February 1, 1962 held the position of drill master in the fire department and upon abolition of such position was appointed to the position of fire training officer, is hereby given an option to become subject to the provisions of this chapter if he or she has continuously from February 1, 1962, to and including the date of exercise of the option granted by this section, held such positions of drill master and fire training officer. Said person, in order to exercise said option, shall on or before November 15, 1968, file with the secretary of the retirement board a written statement on a form to be furnished to him, upon request, by said board declaring that he or she elects to become subject to the provisions of this chapter and elects to pay into the retirement fund a sum equal to the difference between what he would have contributed under this chapter had he or she been subject to the provisions of this chapter from February 1, 1962, to the date upon which he or she exercises this option and what he or she has actually paid during said period of time pursuant to the provisions of Chapter 3.32 of this Code. Upon being paid said sum shall be credited to such person's account and be considered accumulated contributions. Payment of said sum shall be made in such installments, at such times, and in the manner prescribed by the retirement board. If such person or his or her survivors become entitled to any benefit under this chapter prior to the time that all of said sum has been paid, such benefits shall be reduced by the amount of said sum still remaining unpaid.

(Prior code § 2903.87; Ord. 27768.)

Except as may otherwise be provided in this chapter, each person who was appointed to and held, prior to the effective date of this chapter, any of the positions or classes of positions designated in Sections 3.36.170 and 3.36.200 and who, prior to the effective date of this chapter, received a disability retirement from such position or class of position pursuant to the provisions of Chapter 3.32, shall have the option of becoming subject to the provisions of this chapter, subject to all provisions of this chapter, if such person's disability should cease, and if in addition such person should be restored to active service pursuant to the provisions of Chapter 3.32 in the position which he or she held at the time of his or her disability retirement, provided and upon condition, however, that such person at the time he or she is restored to active duty is not fifty-five years or more of age. No such person shall become subject to the provisions of this chapter if, at the time of such restoration to duty in said position, he or she is fifty-five or more years of age. Each of said persons, in order to exercise this option, shall file with the secretary of the retirement board a written statement, on a form to be furnished to him or her, upon request, by said board, 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 ninetieth day immediately following the date of such person's restoration to active duty. Upon filing said statement in the manner and time specified in this section, such person shall be deemed to be a member of the retirement plan and shall be subject to the provisions of this chapter as of the date of his or her restoration to duty. Each such person so electing to become subject to the provisions of this chapter shall cease being subject to the provisions of Chapter 3.32 as of the effective date of the election made pursuant to this section. Anything elsewhere to the contrary notwithstanding, no such person shall become subject to the provisions of this chapter unless he or she exercises this option in the time and manner specified by this section.

(Prior code § 2903.80; Ords. 27768, 29266, 29879.)

A. Any person who has been appointed to and holds on the effective date of this chapter any position in the police department or fire department not included within the list of positions set forth in Sections 3.36.180 or 3.36.210, and who subsequent to said effective date is appointed to a position in the police department or fire department included within the list of positions set forth in Sections 3.36.170 or 3.36.200 without a break in service, and who immediately prior to his or her appointment to such new position is a member of the police and fire department retirement plan as described in Chapter 3.32, shall have the option of becoming subject to the provisions of this chapter.

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 to him or her, upon request by said board, declaring that he or she elects to be subject to the provisions of this Chapter 3.36. Said statement shall be filed on or before, and no later than, the ninetieth day immediately following such person's appointment to the position entitling him or her to be subject to the provisions of this chapter. Upon filing said written statement in the manner and time hereinabove specified, such person shall become subject to the provisions of this chapter as of the date of said new appointment. Each person so electing to become subject to the provisions of this chapter shall cease being subject to the provisions of Chapter 3.32 as of the effective date of the election made pursuant to this section. Anything elsewhere to the contrary notwithstanding, no such person shall become subject to the provisions of this chapter unless he or she exercises this option in the time and manner specified by this section.

(Prior code § 2903.81; Ords. 27768, 29266, 29879.)

Except as may otherwise be provided in this chapter, each person who, prior to the effective date of this chapter, was transferred from a permanent appointment in any position or class of positions in the police department or fire department to one (1) of the following positions or classes of positions in the department of communications: superintendent of communications, chief radio-telephone operator and radio-telephone technician, and who in addition is on the effective date of this chapter a member of the police and fire department retirement plan as described in Chapter 3.32 of this Code, shall have the option, if he or she holds any such position in the department of communications on the effective date of this chapter, and not otherwise, of becoming subject to the provisions of this Chapter 3.36. 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 to him or her, upon request, by said board, declaring that he or she elects to be subject to the provisions of this chapter. Said statement shall be filed on or before, and no later than, the ninetieth (90th) day immediately following the effective date of this section, excepting, however, that any such person who on the effective date of this section is on temporary leave because of active service in the Armed Forces of the United States may file said statement electing to be subject to the provisions of this chapter with the secretary on or before, and no later than, the ninetieth (90th) day immediately following the date of expiration of his or her leave or his or her return to duty, whichever is earlier. Upon filing said written statement with the secretary in the manner and within the time specified in this section, such person shall be deemed to be subject to the provisions of this chapter as of the effective date of this section. Each person so electing to become subject to this chapter shall cease being subject to the provisions of Chapter 3.32, as of the effective date of the election made pursuant to this section. No such person shall become subject to the provisions of this chapter unless he or she exercises this option in the time and manner specified in this section.

(Prior code § 2903.82; Ord. 27768.)

A member who is retired for disability after the effective date of this chapter pursuant to the provisions of this chapter and who, in addition, after receiving such disability retirement, is appointed to a full-time position in the city service, appointment to which would not otherwise entitle him or her to the benefits of this chapter, in which new position monthly compensation is paid, shall, if and while said disability continues during the period of such new service, be a member of the retirement plan, and shall be subject to the provisions of this chapter.

(Prior code § 2903.83; Ords. 27768, 29266, 29879.)

All persons who, on the effective date of this chapter, are members of the police and fire department retirement plan described in Chapter 3.32 and do not exercise in the manner and within the time hereinabove specified their option of becoming subject to the provisions of this chapter, or who are not hereinabove given any such option or who are otherwise excluded from membership in the retirement plan as described in this chapter, are not and shall not be deemed to be subject to the provisions of this chapter and shall not be entitled to any benefits paid pursuant to this chapter. All such persons, however, shall remain members of the police and fire department retirement plan as described in Chapter 3.32 of this Code, subject to the provisions of said chapter and applicable provisions of the charter of the city, and the benefits being paid on the effective date hereof to or on account of any persons pursuant to Chapter 3.32 shall be continued at their existing rates in accordance with the provisions of said Chapter 3.32, and shall be paid from the retirement fund maintained in accordance with this chapter. Notwithstanding anything in this Code or in any ordinance to the contrary, no persons appointed to any position or class of positions on or after the effective date of this chapter shall become subject to Chapter 3.32 or be entitled to any benefits payable pursuant to Chapter 3.32.

(Prior code § 2903.84; Ord. 27768.)