[Adopted 2-1-1959 by Ord. No. 556[1] (Ch. 1, Part 8A, of the 1986 Code of Ordinances)]
[1]
Editor's Note: Original Section 7 of Ord. 556, setting mandatory
retirement age, was repealed due to federal court rulings.
[Amended 9-26-1960 by Ord. No. 833; 4-24-1986 by Ord. No. 1356]
The following words and phrases, unless a different meaning
is plainly required by the context, shall have the following meanings:
Officers and Employees Retirement Board.
The City of Washington.
Retirement allowance or compensation.
A person in the service of the City, other than policemen
and firemen.
Officers and Employees Retirement Fund.
The masculine and feminine pronoun.
A City employee who shall have become a member of the retirement
system subsequent to the last date permitted by the City for statement
of preference concerning social security coverage or who, having become
a member on or before such date, shall have filed with the Retirement
Board a written statement that he or she elects social security coverage
under an agreement with the federal Secretary of Health and Human
Services entered into by the commonwealth.
Persons elected or appointed to City service.
An officer or employee of the City.
A City employee who shall have become a member of the retirement
system on or before the last date permitted by the City for statement
of preference concerning social security coverage, and who either
shall have filed with the Retirement Board a written statement that
he or she does not elect social security coverage under any agreement
with the federal Secretary of Health and Human Services entered into
by the commonwealth or shall not have filed with the Retirement Board
any written statement.
Includes any time not exceeding six years spent by an employee
on active duty with the Armed Forces of the United States, providing
that he received an honorable discharge or a certificate of satisfactory
service and he pays to the Board an amount equal to 3% of his last
monthly salary or wage prior to entering on active duty for each month
he is not employed by the City because of his active duty with the
armed forces.
[Amended 9-26-1960 by Ord. No. 833]
The City of Washington hereby creates and establishes pursuant
to the provisions of the Act of May 23, 1945, P.L. 903,[1] as amended, a "retirement system for its officers and
employees other than policemen and firemen" under the conditions and
subject to the qualifications specified in this article.
[1]
Editor's Note: See 53 P.S. § 42001 et seq.
[Amended 9-26-1960 by Ord. No. 833; 4-9-1987 by Ord. No. 1371]
A.
Board of Trustees. There is hereby established, pursuant to the requirements
of the Municipal Pension Plan Funding Standard and Recovery Act (Act
No. 205 of 1984, P.L. 1005, 53 P.S. § 895.101 et seq.) (hereafter
"Act"), a board of trustees to be known as the "Board of Trustees
of the Comprehensive Municipal Pension Trust Fund" to establish a
trust fund to be known as the "Comprehensive Municipal Pension Trust
Fund" and to invest and otherwise manage the assets of said fund in
accordance with the requirements of the Act.
B.
Membership. The Board of Trustees of the Comprehensive Municipal
Pension Trust Fund shall consist of seven members, to be determined
according to the requirements of the Act. The Mayor, Director of Accounts
and Finance, City Controller, and City Treasurer shall be members
of the Board of Trustees of the Comprehensive Municipal Pension Trust
Fund. The remaining three members shall consist of one representative
of the active membership of each pension plan included in the Comprehensive
Municipal Pension Trust, which representative shall be elected by
the active membership of each respective pension plan.
[Amended 3-6-2008 by Ord. No. 1796]
C.
Terms and filling of vacancies. Each appointed member of the Board
shall serve for a term of four years, provided that the member continues
to hold a position on the managing board of one of the City's pension
plans. Any vacancies created by the resignation, death or removal
of an appointed member shall be filled by appointment of the Mayor,
subject to the approval of Council, for the unexpired portion of the
appointed member's term. Each elected member of the Board shall serve
for a term of four years. Any vacancies created by the resignation,
death or removal of an elected member shall be filled by a special
election of the active membership of the applicable pension plan for
the unexpired portion of the elected member's term.
D.
Compensation. Members of the Board of Trustees of the Comprehensive
Municipal Pension Trust Fund shall serve without compensation. This
provision, however, shall not be deemed to prevent reimbursement for
proper expenses incurred in the performance of a trustee's duties
and approved by the Board.
E.
Quorum and the transaction of business. A majority of the eight members
of the Board of Trustees of the Comprehensive Municipal Pension Trust
Fund shall constitute a quorum for the transaction of any business
or the decision of any matters within its jurisdiction, and the majority
of such quorum shall be sufficient to decide.
F.
Powers and duties. The Board of Trustees of the Comprehensive Municipal
Pension Fund, acting by a quorum of its members, shall have the following
powers and duties:
(1)
To establish a trust fund to be known as the "Comprehensive Municipal Pension Trust Fund" to receive and to act as a repository for the assets amassed by the City's various pension plans and from which the payment of pension benefits and pension administrative costs shall henceforth be paid in accordance with the procedures established in Subsection F(3) below;
(2)
To invest and manage the assets of the Comprehensive Municipal Pension
Trust Fund and to account for the individual interests of the various
pension plans in said trust fund;
(3)
To establish procedures, in accordance with applicable law, to provide
access by the various pension plans to their respective interests
in the trust fund for the payment of benefits and administrative expenses
associated with each plan and to facilitate the payment and/or deposit
of contributions to the Comprehensive Municipal Pension Trust Fund;
(4)
To contract for investment and consulting services;
(5)
To assess reasonable administrative expenses of the Board of Trustees
of the Comprehensive Municipal Pension Trust Fund against the assets
of the fund; and
(6)
To exercise and perform any and all other powers granted and duties
prescribed under the Act.
[Amended 12-12-1951 by Ord. No. 611; 1-2-1952 by Ord. No. 612; 9-26-1960 by Ord. No. 833; 2-13-1973 by Ord. No. 1126; 4-24-1986 by Ord. No.
1356; 11-2-1995 by Ord. No. 1505; 1-15-1998 by Ord. No. 1575]
A.
Every person now or hereafter elected or appointed to an office of,
or employed by, the City, of the age of 60 years and upwards, who
shall have so served as an officer or employee for a period of 20
years or more, shall, upon application to the Board, be retired from
service and shall, during the remainder of his life, receive the compensation
fixed by this article, subject to such qualifications as are hereafter
contained.
(1)
If any person hired or elected or appointed to an office of, or employed
by, the City prior to January 1, 1993, and shall have served 20 years
and voluntarily retires, he shall, by continuing his contributions
until the age of 55 years, be entitled to the above compensation.
(2)
During the lifetime of any such person, he shall be entitled to receive
as compensation annually from the fund set aside for the purpose,
50% of the amount which would constitute the highest average annual
salary or wages which he earned during any five years of his service
for the City or which would be determined by the rate of the monthly
pay of such person at the date of retirement, whichever is the higher.
Said compensation to be paid in semimonthly payments.
(3)
As the City has entered into an agreement with the commonwealth to
place its employees under the Federal Social Security Act, the pension
to be paid according to the provisions of this section payable after
the age and upon that portion of annual compensation on which social
security benefits are payable shall be reduced by an amount equal
to 40% of the primary insurance amount of social security paid or
payable to the member, such reduction shall be subject to the following
provisions:
(a)
Upon attainment of the age at which social security benefits
are payable by a beneficiary receiving a retirement allowance for
superannuation, or upon retirement of a contributor after attaining
that age, his eligibility to the old age insurance benefit and the
primary insurance amount of social security upon which the reduction
in the retirement allowance shall be based shall be computed by the
Board in the manner specified in the Federal Social Security Act,
except that, in determining such amount, only wages or compensation
for services performed in the employ of the City shall be included.
(b)
Whenever the amount of the reduction from the retirement allowance
shall have been once determined, it shall remain fixed for the duration
of the allowance, except that any decrease in the primary insurance
amount under the Social Security Act shall result in a corresponding
decrease in the amount of the reduction from the allowance.
(c)
The total sum, including social security benefits, to be received
upon retirement by an employee who is a member of the system at the
time of the agreement shall not be less than the allowance that would
be paid by the retirement system in the absence of the agreement.
(4)
The long-standing practice of the City of Washington to authorize
pension deductions and to initiate pension plan participation immediately
after nonelected officers and employees of the City have successfully
completed their probationary period is hereby formalized, and pension
deductions shall continue to commence from the employees' pay, and
such employees shall become participants of the pension plan immediately
following the completion of the employees' probationary period.
B.
Where an officer or employee shall have served for 12 years or more
and shall have attained the age of 60 years and his tenure of office
or employment shall be terminated without his voluntary action before
the expiration of 20 years of service, he shall, in such event, during
the remainder of his life, be entitled to receive such portion of
the full compensation as the period of his service up to the date
of its termination bears to the full twenty-year period of service;
where an officer or employee shall have served for 20 years or more,
and his tenure of office or employment shall be terminated without
his voluntary action, then he shall be entitled to full compensation
for the remainder of his life after attaining age 55 and conditioned
upon his continuing his contribution into the fund at the same rate
as when he was dismissed until he attains age 55.
C.
Should an officer or employee, however, become so permanently disabled
as to render him unable to perform the duties of his position or office
after 15 years of service and before attaining the age of 55 years,
he shall be entitled to full compensation during such disability.
Proof of such disability shall consist of the sworn statement of three
practicing physicians designated by the Board that the employee is
in a condition of health which would permanently disable him from
performing the duties of his position or office. Such person shall
thereafter be subject to a physical examination at any reasonable
time or times upon order of the Board, and upon his refusal to submit
to such an examination, his compensation shall cease.
D.
On and after the effective date of this article, the widow or widower
of an employee who retires on pension or being eligible for pension,
but is still employed full time, dies or is killed in the service
of the City shall, during her or his lifetime, or so long as she or
he does not remarry, be entitled to receive a pension calculated at
the rate of 50% of the pension of the employee was receiving or would
have been receiving had he or she been retired at the time of her
or his death. Any employee who is unmarried on the effective date
of this article, or is unmarried at the time he is initially employed
by the City, may elect, within 30 days after the effective date of
this article, or within 30 days after he or she is employed by the
City, not to have a widow or widower receive such payments, and the
employee shall not be responsible for payments to secure such coverage.
Such election shall be in writing and shall be filed with the Retirement
Board within said specified time on forms to be furnished by the Retirement
Board.
E.
From and after the effective date of this amendment, each contributor to the retirement fund and all persons employed by the City on and after the effective date of this article, unless such person is unmarried and elects not to have a widow or widower receive benefits, as set forth in Subsection D of this article, shall pay into the retirement fund a monthly sum in addition to his or her retirement contribution which shall be equal to 1% of his or her monthly salary.
F.
City Council shall annually set aside, apportion and appropriate
out of all taxes and income of the City of Washington, Pennsylvania,
unto the Retirement Board a sum sufficient to maintain the compensation
due under this article and any additional amount deemed necessary
to provide sufficient funds to payments to widows or widowers of members
retired on pension or killed in the service of the City.
[Amended 9-26-1960 by Ord. No. 833; 11-2-1995 by Ord. No.
1550]
A.
All officers and employees shall, subject to the provisions of § 49-32 herein, pay to the Board, monthly, an amount equal to 3 1/2% of their monthly salaries or wages, except as hereinafter provided concerning laborer, which shall be applied to the purposes of this article The provisions of § 49-32 of this article shall, in applicable cases, supersede the provisions relating to contributions as set forth in this § 49-31.
B.
If any compensation be granted to a person who has not been a contributor
to the fund as herein provided for an aggregate period of 20 years,
such person shall be required to pay to the Board for the benefit
of the fund, monthly, an amount equal to the above-specified percent
of his compensation until such time as his contribution shall have
been extended to a period of 20 years.
C.
If for any cause any person contributing to the fund who has served
less than 12 years shall cease to be in the service of the City, he
shall become entitled to the total amount of the contributions paid
into the fund by him, without interest. Any person who has served
for a period of less than 20 years and who has not reached the age
of 55 years and who voluntarily retires from such service shall be
entitled only to the return of his total contributions to the fund
without interest.
D.
If for any cause any person contributing to the fund shall cease
to be in service of the City before he shall have become entitled
to any compensation, the total amount of the contributions paid into
the fund by him shall be refunded, in full, without interest; provided,
however, if any such person shall have returned to him the amount
contributed, as aforesaid, and shall afterwards reenter the service
of the City, he shall not be entitled to the compensation designated
unless he shall return to the fund the fund amount withdrawn; in which
event, the required period of service under this Act shall be computed
from the time he first entered the service of the City, otherwise
the date of his period of service shall commence upon reentry. In
the event of the death of any person after he becomes entitled to
any compensation and has not elected to retire, the total amount of
contributions paid into the fund by him shall be paid over to his
estate, without interest.
[Added 9-26-1960 by Ord. No. 833]
The City having entered into an agreement with the commonwealth to place its employees under the Federal Social Security Act, the Board shall appoint an actuary and fix his compensation. The actuary shall determine the present value of the liability on account of pensions payable under the provisions of § 49-30 of this article to employees who are members of the system on the effective date of the agreement and shall offset the value of any assets in the fund to determine the unfunded liability. The City may make such payments as it desires toward the unfunded liability until the accumulated reserve equals the present value of the liability. The actuary shall also determine the amount which shall be contributed annually into the fund on account of the service of all new and original members subsequent to the effective date of the agreement, and this amount shall become the obligation of the City and shall be paid by it to the Board by annual appropriations.
[Amended 9-26-1960 by Ord. No. 833]
No person holding a position in the City as a laborer, at a
per diem wage, shall be compelled to pay or contribute toward the
fund herein provided for, but he shall have the option or choice of
so doing, and shall only, upon electing to contribute to the fund,
become entitled to the compensation provided by this article; provided,
however, that he shall be required to contribute 3% of his wages and
the same percentage upon any amount of compensation he receives after
his retirement.
The head of every department and office employing persons entitled
under the provisions of this article to receive compensation shall
certify to the Board all persons so employed, and the amount of salary
or wages which is paid to said employee, together with dismissals,
resignations or terminations of service, and from the records of their
office or department shall furnish such other relative information
as the Board shall require.
[Amended 9-26-1960 by Ord. No. 833]
It shall be the duty of the Board to receive and retain and,
when deemed advisable, to invest the funds payable in accordance with
the provisions of this article and to pay over, by warrant or check,
the amount due to said officers and employees.
[Amended 9-26-1960 by Ord. No. 833]
The benefits conferred by this article shall apply to all persons
other than policemen and firemen employed in any capacity by or holding
positions in the City.
The time of service herein specified shall be computed from
time of the first or original service to the City and need not be
continuous.
The compensation herein mentioned shall not be subject to attachment
or execution, and shall be payable only to the beneficiary designated
by this article, and shall not be subject to assignment or transfer.
[Added 6-4-1974 by Ord. No. 1141]
When a member of the Officers and Employees Retirement Fund
has qualified for pension payments from the fund, said pension payments
shall be calculated from the day after retirement, regardless of when
the initial pension payment to said retirement member is actually
made.
[Added 6-4-1974 by Ord. No. 1141]
Nothing in this article shall restrict or impair any right which
shall have heretofore accrued on any action taken or thing heretofore
done under the provisions of Ordinance No. 566, and all amendments
thereto, and every provision of said ordinance not consistent with
the provisions of this article shall have the same force and effect
as if this article had not been passed.
[Added 10-8-1987 by Ord. No. 1381; amended 11-2-1995 by Ord. No.
1505; 5-9-2002 by Ord. No. 1694; 7-13-2017 by Ord. No. 1897]
A.
ACCRUED BENEFIT
(1)
(2)
ACCUMULATED CONTRIBUTIONS
ACT
ACTUARIAL EQUIVALENT
ACTUARY
AGGREGATE SERVICE
BENEFICIARY
BOARD
CHIEF ADMINISTRATIVE OFFICER
CODE
COMMONWEALTH
COMPENSATION
COUNCIL
DISABILITY DATE
ELIGIBLE SPOUSE
EMPLOYEE
EMPLOYER or CITY
EMPLOYMENT
(1)
(2)
(3)
FINAL MONTHLY AVERAGE SALARY
MINIMUM MUNICIPAL OBLIGATION
NORMAL RETIREMENT AGE
NOTICE or ELECTION
PARTICIPANT
PENSION FUND
PLAN
PLAN ADMINISTRATOR
PLAN YEAR
RESTATEMENT DATE
TOTAL AND PERMANENT DISABILITY
Definitions. The following words and phrases as used in this plan
shall have the meaning set forth in this article, unless a different
meaning is otherwise clearly required by the context:
As of any given date, the benefit determined under § 49-41D(2), calculated on the basis of final monthly average salary as of the date of determination and multiplied by a fraction, the numerator of which shall be the participant's aggregate service determined as of such date and the denominator of which shall be the projected aggregate service of the participant as if the participant continues in employment until attainment of normal retirement age. Notwithstanding anything contained herein to the contrary, in no event shall the fraction exceed one.
The accrued benefit shall not exceed the maximum limitation, determined as of the date of computation, provided under § 49-41D(6). All accrued benefits are subject to all applicable limitations, reductions, offsets, and actuarial adjustments provided pursuant to the terms of the plan prior to the actual payment thereof.
The total amount contributed by any participant to this fund
or its predecessor by way of payroll deduction or otherwise, without
interest or other accretion.
The Municipal Pension Plan Funding Standard and Recovery
Act, which was enacted as Act 205 of 1984, as amended, 53 P.S. § 895.101
et seq.
Two forms of payment of equal actuarial present value on
a specified date. The actuarial present value shall be determined
by use of the UP-1984 Mortality Table and 7% unless otherwise specifically
provided herein.
The person, partnership, association or corporation, which
at any given time is serving as actuary; provided that such actuary
must be an "approved actuary" as defined in the Act.
The total period or periods of the participant's employment
with the employer whether or not interrupted. Notwithstanding the
preceding sentence, should any such participant receive a distribution
of accumulated contributions with respect to a period of employment
for which employee contributions are required, such period of employment
shall not be included in aggregate service thereafter unless, at the
commencement of the next period of employment, the participant repays
to the fund the amount the participant received at the time the participant
terminated service with the employer. Aggregate service shall be calculated
in completed whole years.
The person or entity designated by the participant to receive
a distribution of the participant's accumulated contributions should
the participant die prior to becoming entitled to a retirement benefit.
In the event that a participant does not designate a beneficiary or
the beneficiary does not survive the participant, the beneficiary
shall be the surviving spouse, or if there is no surviving spouse,
the issue, per stirpes, or if there is no surviving issue, the estate;
but if no personal representative has been appointed, to those persons
who would be entitled to the estate under the intestacy laws of the
Commonwealth of Pennsylvania if the participant had died intestate
and a resident of Pennsylvania.
The Board of Trustees of the Officers and Employees Retirement System as determined pursuant to § 49-41H(2).
The person designated by the City who has the primary responsibility
for the execution of the administrative affairs for the plan.
The Internal Revenue Code of 1986, as amended.
The Commonwealth of Pennsylvania.
The total amount of a participant's earnings, received or
receivable during the participant's employment with the City as an
employee.
The Council of the City of Washington.
The date when a participant is determined by the Plan Administrator
to be incapacitated due to total and permanent disability, or the
date when the participant's employment terminates due to such total
and permanent disability, if later.
The spouse to whom a participant is legally married as of
the participant's date of death.
Any elected official or individual employed on a regular
basis by the employer other than a police officer or paid firefighter.
The City of Washington, Washington County, Pennsylvania.
For the purpose of determining aggregate service:
The period of time for which an employee is directly or indirectly
compensated or entitled to compensation by the employer for the performance
of duties as an elected official or nonuniformed employee;
Any period of time for which an employee is paid, either directly
by the employer or through a program to which the employer has made
contributions on behalf of the employee, a fixed, periodic amount
in the nature of salary continuation payments for reasons other than
the performance of duties (such as vacation, holidays, sickness, entitlement
to benefits under workers' compensation or similar laws); and
Any period of qualified military service as determined under
the requirements of Chapter 43 of Title 38, United States Code, provided
that the participant returns to employment following such period of
qualified military service, and the participant makes payment to the
plan in an amount equal to the participant contributions that would
otherwise have been paid to the plan during such period of qualified
military service. The amount of participant contributions shall be
based upon an estimate of the compensation that would have been paid
to the participant during such period of qualified military service
as determined by the average compensation paid to the participant
during the 12 months immediately preceding the period of qualified
military service. The amount of participant contributions calculated
must be paid into the plan before the end of the period that begins
on the date of reemployment and ends on the earlier of the date that
ends the period that has a duration of three times the period of qualified
military service or the date that is five years after the date of
reemployment.
The greater of the rate of monthly compensation of the participant
as of the date of retirement or the highest average annual compensation
which the participant received during any five years of aggregate
service preceding his termination of active employment. Compensation
used to determine final monthly average salary shall be limited on
an annual basis to the amount specified for government plans in accordance
with code Section 401(a)(17), as adjusted under code Section 415(d).
The minimum obligation of the municipality as determined
by the actuary pursuant to the provisions of the Act.
For any participant hired before January 1, 1993, the date
on which the participant has attained age 55 and completed 20 years
of aggregate service with the employer. For participants hired on
or after January 1, 1993, "normal retirement age" shall mean the date
on which the participant has attained age 60 and completed 20 years
of aggregate service with the employer.
A written document prepared in the form specified by the
Plan Administrator. If such notice or election is to be provided by
the employer or the Plan Administrator, it shall be mailed in a properly
addressed envelope, postage prepaid, to the last known address of
the person entitled thereto, on or before the last day of the specified
notice or election period. If such notice or election is to be provided
to the employer or the Plan Administrator, it must be received by
the intended recipient on or before the last day of the specified
notice or election period.
An employee who has met the eligibility requirements to participate in the plan as provided in § 49-41B(1) and who has not for any reason ceased to be a participant hereunder.
The Officers and Employees Pension Fund, aggregated with
other pension funds maintained by the employer to create a single
pension trust fund, which shall thereafter serve as the single funding
mechanism for all pension plans connected with the aggregation. Each
pension plan subject to the aggregation shall have an undivided participation
in the assets of the combined pension trust fund. For accounting purposes,
the value of the participation by each plan shall be calculated annually,
in accordance with the requirements of Section 607 of the Act. The
pension fund shall be administered under the terms of this plan and
which shall include all money, property, investments, policies and
contracts standing in the name of the plan.
The plan set forth herein, as amended from time to time and
designated as the City of Washington Officers and Employees Retirement
System.
The committee or the individual appointed for the purpose
of supervising and administering the provisions of the plan. In the
event that no such appointment is made, the Plan Administrator shall
be the Board.
The twelve-month period beginning on January 1 and ending
on December 31 of each year.
January 1, 2016, the date upon which this amendment and restatement
of the plan becomes effective.
A condition of physical or mental impairment due to which
a participant is unable to perform the usual and customary duties
of employment and which is reasonably expected to continue to be permanent
for the remainder of the participant's lifetime.
B.
Participation in the plan.
(1)
Eligibility requirements. Each employee shall participate herein
as of the date on which such employee's employment first commences
or recommences provided all prerequisites to participation under this
plan shall have been fulfilled, including, but not limited to, completion
of any probationary period applicable to the position and completion
of all forms required by the Plan Administrator. Each employee who
was a participant in the plan on the day prior to the restatement
date shall continue to be a participant on and after the restatement
date subject to the terms and conditions of the plan as set forth
herein.
(2)
Participation requirements. The Board shall furnish the Plan Administrator with written notification of the appointment of any new full-time permanent employee who is eligible for participation hereunder. Each participant hereunder shall be required to make contributions to the plan as provided in § 49-41C(1) hereof, and shall execute and complete any enrollment or application forms as required by the Plan Administrator.
(3)
Designation of beneficiary. Any new, full-time employee who becomes
a participant hereunder shall provide a written notice in the manner
prescribed by the Plan Administrator which designates a beneficiary
at the time participation commences. The participant's election of
any such beneficiary may be rescinded or changed, without the consent
of the beneficiary, at any time provided the participant provides
the written notice of the changed designation to the Plan Administrator
in the manner prescribed by the Plan Administrator. Any designation
of a beneficiary made in any manner other than one acceptable to the
Plan Administrator shall be null and void and have no effect under
the terms of this plan.
(4)
Change in status. A participant who remains in the service of the
employer but ceases to be an employee eligible for participation hereunder,
or ceases or fails to make any contributions which are required as
a condition of participation hereunder, shall have no further benefit
accruals occur until the individual again qualifies as a participant
hereunder eligible to resume such accrual of benefits.
(5)
Recordkeeping. The employer shall furnish the Plan Administrator
with such information as will aid the Plan Administrator in the administration
of the plan. Such information shall include all pertinent data on
employees for purposes of determining their eligibility to participate
in this plan.
C.
Contributions.
(1)
Participant contributions.
(a)
Each participant who was hired before January 1, 1993, and makes an election under § 49-41D(4), and each other participant shall, after the effective date of such election or initial participation, be required to have contributions deducted from the participant's compensation and contributed to the pension fund in an amount equal to 5% of the participant's compensation.
(b)
Participants hired before January 1, 1993 who did not make an election under § 49-41D(4) shall be required to have contributions deducted from the participant's compensation and contributed to the plan at a rate of 3 1/2% of the participant's compensation subject to taxation under code Section 3101(a) and 5% of the remainder of the participant's compensation.
(c)
Unless a participant waives coverage by filing an election with the Plan Administrator, an additional 1% of the participant's compensation shall be deducted from the participant's compensation and contributed to the plan for survivor benefit coverage as provided for in § 49-41F(2).
(d)
Each participant shall complete the necessary forms, and elections
as applicable, to authorize the payment of participant contributions
by way of payroll deduction.
(2)
State aid. General Municipal Pension System State Aid, or any other
amount of state aid received by the employer in accordance with the
Act from the commonwealth may be deposited into the pension fund governed
by this plan in amounts determined by the Board, and shall be used
to reduce the amount of the minimum municipal obligation of the employer.
(3)
Gifts. The Board is authorized to take by gift, grant, devise or
otherwise any money or property, real or personal, for the benefit
of the plan and cause the same to be held as a part of the pension
fund. The care, management, investment and disposal of such amounts
shall be vested in the Board or its delegate, the Plan Administrator,
subject to the direction of the donor and not inconsistent with applicable
laws and the terms of the plan.
(4)
Employer reversion. At no time shall it be possible for the plan assets to be used for, or diverted to, any purpose other than for the exclusive benefit of the participants and their beneficiaries, including payment of any reasonable plan expenses. Notwithstanding the foregoing, any contributions made by the employer may be returned to the employer if the contribution was made due to a mistake and the contribution is returned within one year of the date on which the discovery of the mistaken payment of the contribution was made or reasonably should have been made or the plan is terminated, as provided in § 49-41J.
D.
Retirement benefits.
(1)
Normal retirement. Each participant shall be entitled to a normal
retirement benefit after retirement on or after the participant has
attained normal retirement age.
(2)
Normal retirement benefit.
(a)
Each participant who shall become entitled to a benefit pursuant to Subsection D(1) shall receive a benefit paid monthly for the life of the participant in an amount equal to 50% of the participant's final monthly average salary as determined herein.
(b)
Notwithstanding anything contained herein to the contrary, an
employee who became a participant before January 1, 1993, shall have
the normal retirement benefit determined hereunder reduced by an amount
equal to 40% of the primary insurance amount of social security paid
or payable to the participant. Such reduction shall commence as of
the attainment of the age at which the participant becomes eligible
for full normal social security benefits and determined as of that
date based only on the compensation for services rendered in employment
and shall only be redetermined if a decrease in the social security
primary insurance amount shall result in a corresponding decrease
in the amount of the reduction determined herein.
(3)
Payment of benefits. Retirement benefit payments shall be payable
as of the participant's retirement date and the first day of each
month thereafter during the participant's lifetime. A participant
must complete an application for benefit in the manner prescribed
by the Plan Administrator and deliver such application to the Plan
Administrator at least 30 days prior to the date on which benefit
payments shall commence. Notwithstanding anything contained herein
to the contrary, no retirement benefit payments nor any other payments
shall be due or payable on or before the date that is 30 days after
the date the Plan Administrator receives the application for benefits.
Payment of benefits hereunder shall cease as of the date of death
of the participant.
(4)
Elimination of social security reduction. A participant whose benefit is subject to a social security offset pursuant to Subsection D(2) shall be eligible to eliminate such offset subject to the provisions of this subsection. The participant must make an election on a form acceptable to the Plan Administrator prior to retirement and shall be required to make employee contributions at the rate of 5% of the participant's compensation commencing on the date such election is made. In addition, such a participant must pay in a lump sum payment at the time of election or in installment payments as agreed by Council, an amount equal to the difference between the participant's actual accumulated contributions at the time of election and the employee contributions which would have been paid if the participant had paid all employee contributions at the rate of 5% of the participant's compensation.
(5)
Reemployment. Each employee who had previously been employed by the employer and thereafter terminated employment shall, upon reemployment, have prior years of aggregate service recredited for all purposes under the plan upon repayment to the pension fund of any amount of accumulated contributions which had been distributed pursuant to § 49-41G(2).
(6)
Maximum benefit limitations. Notwithstanding any provision of this plan to the contrary, no benefit provided under this plan attributable to contributions of the employer shall exceed, as an annual amount, the amount specified in code Section 415(b)(1)(A) as adjusted pursuant to code Section 415(d), assuming the form of benefit shall be a straight life annuity (with no ancillary benefits). The limitations described in this § 49-41D(6) shall be governed by the following conditions and definitions:
(a)
Benefits paid or payable in a form other than a straight life
annuity (with no ancillary benefits) or where the employee contributes
to the plan or makes rollover contributions shall be adjusted on an
actuarially equivalent basis in accordance with applicable regulations
to determine the limitation contained herein;
(b)
In the case of a benefit which commences prior to the attainment
of age 62 by the participant, the limitation herein shall be adjusted
on an actuarially equivalent basis to the amount determined pursuant
to this section commencing at age 62; however, in the case of a qualified
participant (a participant with respect to whom a period of at least
15 years of service, including applicable military service, as a full-time
employee of a police or fire department is taken into account in determining
the amount of benefit), the limitation contained herein shall not
apply;
(c)
In the case of a benefit which commences after attainment of
age 65 by the participant, the limitation herein shall be adjusted
on an actuarially equivalent basis in accordance with applicable regulations
to the amount determined commencing at age 65;
(d)
Benefits paid to a participant which total less than $10,000 from all defined benefit plans maintained by the employer expressed as an annual benefit shall be deemed not to exceed the limitation of this section provided that the employer has not at any time maintained a defined contribution plan in which the participant has participated; however, in the case of a participant who is not receiving a disability retirement benefit pursuant to § 49-41E(1) or a survivor benefit pursuant to § 49-41F(2), with fewer than 10 years of participation the limitation expressed in this subsection shall be reduced by 1/10 for each year of participation less than 10 but in no event shall this limitation be less than $1,000;
(e)
The limitations expressed herein shall be based upon plan years
for calculation purposes, shall be applied to all defined benefit
plans maintained by the employer as one defined benefit plan and to
all defined contribution plans maintained by the employer as one defined
contribution plan, and shall be applied and interpreted consistent
with code Section 415 and regulations thereunder as applicable to
government plans in general and this plan in particular;
(g)
To the extent applicable, the plan will comply with the provisions
of code Section 415(n) regarding the purchase of permissive service
credits; and
(h)
Effective for distributions with annuity starting dates beginning
on or after December 31, 2008, notwithstanding any other plan provisions
to the contrary, the applicable mortality table used solely for purposes
of adjusting any benefit or limitation under 415(b)(2)(B), (C), or
(D) of the code as set forth in the applicable maximum benefit limitations
section of the plan is the applicable mortality table under code Section
417(e)(3)(B).
(7)
Required distributions.
(a)
Entitlement and/or distribution of benefits beginning prior
to death.
[1]
Notwithstanding any other provision of this plan, the entire
benefit of any participant who becomes entitled to benefits prior
to death shall be distributed either:
[a]
Not later than the required beginning date, or
[b]
Over a period beginning not later than the required
beginning date and extending over the life of such participant or
over the lives of such participant and a designated beneficiary (or
over a period not extending beyond the life expectancy of such participant,
or the joint life expectancies of such participant and a designated
beneficiary).
[2]
If a participant who is entitled to benefits under this plan
dies prior to the date when the entire interest has been distributed
after distribution of the benefits has begun in accordance with Subsection
D(7)(a)[1][b] above, the remaining portion of such benefit shall be
distributed at least as rapidly as under the method of distribution
being used under Subsection D(7)(a)[1][b] as of the date of the death.
(b)
If a participant who is entitled to benefits under this plan
dies before distribution of the benefit has begun, the entire interest
of such employee shall be distributed within five years of the death
of such employee, unless the following sentence is applicable. If
any portion of the employee's interest is payable to (or for the benefit
of) a designated beneficiary, such portion shall be distributed over
the life of such designated beneficiary (or over a period not extending
beyond the life expectancy of such beneficiary), and such distributions
begin not later than one year after the date of the employee's death
or such later date as provided by regulations issued by the Secretary
of the Treasury, then for purposes of the five-year rule set forth
in the preceding sentence, the benefit payable to the beneficiary
shall be treated as distributed on the date on which such distributions
begin; provided, however, that notwithstanding the preceding sentence,
if the designated beneficiary is the surviving spouse of the participant,
then the date on which distributions are required to begin shall not
be earlier than the date upon which the employee would have attained
age 70 1/2 and, further provided, if the surviving spouse dies
before the distributions to such spouse begin, this subsection shall
be applied as if the surviving spouse were the employee.
(c)
For purposes of this subsection, the following definitions and
procedures shall apply:
[1]
REQUIRED BEGINNING DATE
DESIGNATED BENEFICIARY
Definitions.
April 1 of the calendar year following the later of the calendar
year in which the employee attains age 70 1/2, or the calendar
year in which the employee retires.
Any individual designated by the employee under this plan
according to its rules.
[2]
Any amount paid to a child shall be treated as if it had been
paid to the surviving spouse if such amount will become payable to
the surviving spouse upon such child's reaching majority (or other
designated event permitted under regulations issued by the Secretary
of the Treasury).
[3]
For purposes of this subsection, the life expectancy of an employee
and/or the employee's spouse (other than in the case of a life annuity)
may be redetermined but not more frequently than annually.
(d)
General rules. The requirements of this Subsection D(7) will take precedence over any inconsistent provisions of the plan. All distributions required under this Subsection D(7) will be determined and made in accordance with Section 401(a)(9) of the code and the Treasury regulations thereunder, and the employer's good faith interpretation of such code and regulations.
(8)
Assignment. The pension benefit payments prescribed herein shall
not be subject to attachment, execution, levy, garnishment or other
legal process and shall be payable only to the participant or designated
beneficiary and shall not be subject to assignment or transfer unless
the subject of a domestic relations order, mandated by a court of
competent jurisdiction, that clearly provides for proper distribution
of a portion of the pension benefit payments to an alternate payee
(former spouse of the participant) and does not require any benefit
to be paid in excess of the available earned and accrued under the
plan.
(9)
Retired participants. Any participant who shall have retired prior
to the restatement date shall not have the benefit altered in any
way by the provisions of this amended and restated plan, except where
otherwise expressly provided herein. Such retired participants shall
continue to have their benefits governed by the terms of the plan
in effect on the day preceding the restatement date.
(10)
Limitation of liability. Nothing contained herein shall obligate
the employer, the Plan Administrator, any fiduciary or any agent or
representative of any of the foregoing, to provide any retirement
or other benefit to any participant or beneficiary which cannot be
provided from the assets available in the pension fund, whether such
benefits are in pay status or otherwise payable under the terms of
the plan. The Board retains the right to amend or terminate this plan
consistent with applicable law at any time, with or without cause
and whether or not such action directly or indirectly results in the
suspension, reduction or termination of any benefit payable under
the plan or in pay status, and without liability to any person for
any such action.
(11)
Personal right of participant. The right to receive any benefits
under this plan is a personal right of the participant and shall expire
upon the death of the participant. No heir, legatee, devisee, beneficiary,
assignee or other person claiming by or through a participant shall
have any interest in any benefits hereunder unless clearly and expressly
so provided by the terms of this plan or the provisions of applicable
law. A participant's election, failure to make an election or revocation
of an election hereunder shall be final and binding on all persons.
(12)
Nonduplication of benefit. To avoid any duplication of benefits,
a participant who is receiving a retirement benefit under the plan
and who shall resume employment shall have benefit payments suspended
until the first day of the month coincident with or next following
the date such employment shall cease. Upon resumption of benefit payments,
such participant shall receive the greater of the amount of the suspended
benefit or the amount of benefit based upon final monthly average
salary and aggregate service as of the date that such period of resumed
employment shall cease.
(13)
Direct rollovers.
(a)
This Subsection D(13)(a) applies to distributions made on or after December 31, 2001. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this section, a distributee may elect, at the time and in the manner prescribed by the Plan Administrator, to have any portion of an eligible rollover distribution that is equal to at least $500 paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
(b)
This Subsection D(13)(b) shall apply to distributions made on or after January 1, 2006. Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this section, if a distribution in excess of $1,000 is made and the distributee does not make an election under section Subsection D(13)(a) and does not elect to receive the distribution directly, the Plan Administrator shall make such transfer to an individual retirement plan of a designated trustee or issuer pursuant to Subsection H(3)(a)[9]. The Plan Administrator shall notify the distributee, in writing, within a reasonable period of time and as otherwise prescribed by law, that the distribution may be transferred to another individual retirement plan.
(c)
DISTRIBUTEE
ELIGIBLE RETIREMENT PLAN
DIRECT ROLLOVER
ELIGIBLE ROLLOVER DISTRIBUTION
[1]
[2]
For purposes of this section, the following definitions shall
apply:
Includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the employee's
or former employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in code
Section 414(p), are distributees with regard to the interest of the
spouse or former spouse.
Is a qualified trust described in code Section 401(a), an
individual retirement account described in code Section 408(a), an
individual retirement annuity described in code Section 408(b), an
annuity plan described in code Section 403(a), an annuity contract
described in code Section 403(b), an eligible deferred compensation
plan described in code Section 457(b), which is maintained by a state,
political subdivision of a state, and any agency or instrumentality
of a state or political subdivision of a state and which agrees to
separately account for amounts transferred into such plan from this
plan.
Is a payment by the plan to the eligible retirement plan
specified by the distributee or the Plan Administrator, if the distributee
does not make an election. Effective January 1, 2008, direct rollovers
may be made to a Roth IRA described in Section 408A of the code to
the extent that the applicable requirements of code Section 408A are
satisfied with respect to any direct rollover to such Roth IRA.
Any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution
does not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life or (life expectancy) of the distributee or the joint lives
(or joint life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of 10 years or more;
any distribution to the extent such distribution is required under
code Section 401(a)(9); and the portion of any distribution that is
not includible in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
For purposes of the direct rollover provisions in this section
of the plan, a portion of the distribution shall not fail to be an
eligible rollover distribution merely because the portion consists
of after-tax employee contributions that are not includible in gross
income. However, such portion may only be paid to an individual retirement
account or annuity described in Section 408(a) or (b) of the code,
or to a qualified defined contribution plan described in Sections
401(a) or 403(a) of the code [effective for distributions on or after
January 1, 2007, any qualified trust or code Section 403(b) plan]
that agrees to separately account for amounts so transferred, including
separately accounting for the portion of such distribution which is
includible in gross income and the portion which is not includible.
(d)
This section applies to distributions made on or after January
1, 2010. Notwithstanding any provision of the plan to the contrary
that would otherwise limit a nonspouse beneficiary's election under
this section, a nonspouse beneficiary may elect to have any portion
of a plan distribution (that is payable to such nonspouse beneficiary
due to a participant's death) paid in a direct trustee-to-trustee
transfer to an individual retirement account described in code Section
408(a) or to an individual retirement annuity described in Section
408(b) (other than an endowment contract) that has been established
for the purposes of receiving the distribution on behalf of such nonspouse
beneficiary. For these purposes, a "nonspouse beneficiary" is an individual
who is a designated beneficiary [as defined by Section 401(a)(9)(E)
of the code] of a participant and who is not the surviving spouse
of such participant.
E.
Disability retirement.
(1)
Disability retirement. A participant who shall incur a total and
permanent disability before attaining normal retirement age, following
the completion of 15 years of aggregate service, shall be eligible
for a disability retirement benefit equal to 50% of the participant's
final monthly average salary, without regard to reduction for the
social security benefit, calculated as of the disability date.
(2)
Payment of disability benefits. Disability payments shall commence
upon the expiration of any insured disability benefits provided by
the City and shall be made monthly as of the participant's disability
date and continuing until the earliest of the death of the participant
or cessation of total and permanent disability.
(3)
Verification of disability. The Plan Administrator shall in its sole
discretion determine whether a participant shall have incurred a total
and permanent disability. The Plan Administrator shall rely on the
report of up to three physicians acceptable to the Plan Administrator.
If the Plan Administrator shall determine that a participant who is
totally and permanently disabled has recovered sufficiently to resume
active employment or if a participant refuses to undergo a medical
examination as directed by the Plan Administrator (such a medical
examination may not be required more frequently than once in any given
twelve-month period), the payment of disability retirement benefits
shall cease.
(4)
Cessation of disability.
(a)
A participant who is receiving payment of disability retirement
benefits under this plan must notify the Plan Administrator of any
change which may cause a cessation of entitlement to receipt of such
benefits hereunder. If a participant fails to provide immediate notice
to the Plan Administrator of any such change in status and continues
to receive payment of benefits hereunder to which the participant
is not entitled, then the plan may take whatever action is necessary
to recover any amount of improperly paid amounts, including legal
action or offsetting such amounts against any future payments of retirement
or other benefits under the plan, including the costs of such actions.
(b)
A participant who shall fail to return within three months to employment as an employee of the employer upon cessation of total and permanent disability prior to attainment of normal retirement age shall be deemed to have terminated employment as of the disability date, shall not be entitled to any distribution of accumulated contributions pursuant to § 49-41G(2) to the extent that the total amount of disability payments exceeds the value of the participant's accumulated contributions as of the disability date, and shall not be entitled to any other benefits under the plan on account of any aggregate service as of the disability date.
F.
Death benefits.
(1)
Death of participant. Upon the occurrence of the death of a participant, there shall be benefits payable in accord with the following subsections of this Subsection F.
(2)
Survivor benefit. If a participant who contributed the additional 1% of compensation during employment to be covered by the survivor benefit pursuant to Subsection C(1) shall die after commencement of retirement benefit payments under Subsections D, E or G hereunder, or after becoming eligible to receive retirement benefit payments under Subsection D(1) and before retirement benefits commence, a survivor benefit shall be paid to the eligible spouse of the participant, if any, pursuant to Subsection F(3) in an amount equal to 50% of the benefit the participant was receiving or was eligible to receive as of the date of death.
(3)
Payment of survivor benefit. The survivor benefit commences as of
the first day of the month immediately following the date of death
of the participant. The survivor benefit shall be paid monthly to
the eligible spouse of the participant, if any, until the death or
remarriage of the eligible spouse. Upon the death or remarriage of
the eligible spouse, the survivor benefit shall cease and no further
benefits shall be payable.
(4)
Death of participant without survivor benefit entitlement. If a participant shall die without eligibility for payment of a Survivor Benefit under Subsection F(2) (because the participant died before normal retirement age, did not contribute the additional 1% of compensation to be covered by survivor benefit or died without an eligible spouse), the beneficiary shall be eligible to receive a distribution in an amount equal to the accumulated contributions of the participant as of the date of death of the participant. In the case of a participant who dies after commencement of retirement benefit payments without eligibility for payment of a survivor benefit and whose total benefit payments at the time of death are less than the participant's accumulated contributions, the beneficiary shall be eligible to receive a distribution in an amount equal to the accumulated contributions less total benefits paid to the participant as of the date of death.
(5)
Veterans' survivor benefits. Notwithstanding any other provision
of the plan to the contrary, in the case of the death of a participant
who dies on or after January 1, 2007, while performing qualified military
service [as defined in code Section 414(u)], the survivors of the
participant are entitled to any additional benefits under the plan
(if any) had the participant resumed and then terminated employment
on account of death.
G.
Termination of employment.
(1)
Rights of terminated employees. A participant who shall cease to be an employee except as otherwise hereinbefore provided shall have all interest and rights under this plan limited to those contained in the following subsections of this Subsection G.
(2)
Distribution of accumulated contributions. A participant whose employment
with the employer shall terminate for any reason other than death
or total and permanent disability prior to attainment of normal retirement
age shall be entitled to receive a distribution of accumulated contributions.
Upon receipt of such accumulated contributions, said participant and
beneficiary shall not be entitled to any further payments from the
plan.
(3)
Early termination benefit. A participant who shall have completed at least 20 years of aggregate service and whose employment terminates prior to attainment of normal retirement age for any reason other than due to death or total and permanent disability shall be entitled to a retirement benefit equal to the participant's normal retirement benefit as calculated under Subsection D(2) commencing at the participant's normal retirement age, provided the participant continues making participant contributions pursuant to Subsection C(1) until such date.
(4)
Involuntary termination benefit. A participant who shall have completed at least 12 years of aggregate service whose employment shall terminate without their voluntary action (other than due to death) prior to attainment of normal retirement age and is not eligible for a disability benefit pursuant to Subsection E(1) or an early termination benefit pursuant to Subsection G(3) shall be entitled to elect to receive a deferred retirement benefit in lieu of a distribution of accumulated contributions under Subsection G(2). Such a deferred retirement benefit shall be equal to the participant's accrued benefit and shall commence upon attainment of age 60, or immediately if the participant's termination occurred after age 60. A participant who elects to receive an involuntary termination benefit pursuant to this section and who has not been a contributor for at least 20 years must continue making participant contributions pursuant to Subsection C(1) until the date at which they will have been contributing for a total of 20 years.
(5)
Postemployment participant contributions. This subsection applies to a participant who must, as a condition of entitlement to retirement benefits pursuant to Subsection G(3) or (4), continue to make participant contributions after termination of employment. Such contributions shall be determined as a monthly amount based on the rate at which the participant was contributing at the time of termination and the participant's final monthly average salary upon which the participant's retirement benefit is based.
Participant contributions owed for any period before payment
of a participant's retirement benefits has commenced shall be paid
by the participant to the Plan Administrator monthly starting with
the month following termination of employment, or at some other interval
as permitted by the Board. Participant contributions owed for any
period after the participant's retirement benefits have commenced
shall be deducted from the participant's monthly retirement benefit.
H.
Administration.
(1)
Plan Administrator. The Plan Administrator shall be the Board or
the individual appointed by the Council who shall have the power and
authority to do all acts and to execute, acknowledge and deliver all
instruments necessary to implement and effectuate the purpose of this
plan. The Plan Administrator may delegate authority to act on its
behalf to any persons it deems appropriate. If a Plan Administrator
is not appointed, the Board shall be the Plan Administrator.
(2)
Board of Managers: construction, election and term of office.
(a)
The Board of Managers of the Officers and Employees Retirement
System shall be composed of six members and this membership shall
include the Mayor, Director of Accounts and Finance, City Treasurer,
City Controller and two employees chosen by the employees contributing
to the plan.
(b)
The term of office for employee representatives shall be four
years, which shall be staggered such that one term will expire every
two years. In the event of the termination, resignation or removal
of a Board member before the expiration of four years, a special election
shall be held to fill the remainder of the four years.
(3)
Authority and duties of the Plan Administrator.
(a)
The Plan Administrator shall have full power and authority to
do whatever shall, in its judgment, be reasonably necessary for the
proper administration and operation of the plan. The interpretation
or construction placed upon any term or provision of the plan by the
Plan Administrator or any action of the Plan Administrator taken in
good faith shall, upon the Board's review and approval thereof, be
final and conclusive upon all parties hereto, whether employees, participants
or other persons concerned. By way of specification and not limitation
and except as specifically limited hereafter, the Plan Administrator
is authorized:
[1]
To construe this plan;
[2]
To determine all questions affecting the eligibility of any
employee to participate herein;
[3]
To compute the amount and source of any benefit payable hereunder
to any participant or beneficiary;
[4]
To authorize any and all disbursements;
[5]
To prescribe any procedure to be followed by any participant
or other person in filing any application or election;
[6]
To prepare and distribute, in such manner as may be required
by law or as the Plan Administrator deems appropriate, information
explaining the plan;
[7]
To require from the employer or any participant such information
as shall be necessary for the proper administration of the plan;
[8]
To appoint and retain any individual to assist in the administration
of the plan, including such legal, clerical, accounting and actuarial
services as may be required by any applicable law or laws; and
[9]
To select an individual retirement plan provider (either the state or a federally regulated financial institution) and invest the funds in connection with the rollover of mandatory distributions as described in § 49-41D(13)(b).
(b)
The Plan Administrator shall have no power to add to, subtract
from or modify the terms of the plan or change or add to any benefits
provided by the plan, or to waive or fail to apply any requirements
of eligibility for benefits under the plan. Further, the Plan Administrator
shall have no power to adopt, amend, or terminate the plan, to select
or appoint any trustee or to determine or require any contributions
to the plan, said powers being exclusively reserved to the Board.
(4)
Board of directors — purpose. The purpose of the
Board of Trustees of the Officers and Employees Retirement System
shall be to provide a forum for meetings and discussions between representatives
of the City and the elected officials and employees relative to pensions.
In addition, the Board shall receive and review actuarial reports
and other relevant reports on the status and/or the condition of the
Officers and Employees Retirement System Pension Fund and other matters
relevant to the actuarial reports and reports on the status and condition
of the Officers and Employees Retirement System. The Board shall organize
and adopt such rules and regulations as it may deem necessary for
performance of its duties. The Board shall meet as needed.
(5)
Plan Administrator costs. The Plan Administrator shall serve without
compensation for services unless otherwise agreed by the Board in
writing. All reasonable expenses incident to the functioning of the
Plan Administrator, including, but not limited to, fees of accountants,
counsel, actuaries and other specialists, and other costs of administering
the plan, may be paid from the pension fund upon approval by the Board
to the extent permitted under applicable law and not otherwise paid
by the employer.
(6)
Hold harmless. No member of the Board, the Plan Administrator, nor
any other person involved in the administration of the plan (other
than any person, bank, firm or corporation which is independent of
the employer and which renders services to the plan for a fee) shall
be liable to any person on account of any act or failure to act which
is taken or omitted to be taken in good faith in performing their
respective duties under the terms of this plan. To the extent permitted
by law, the employer shall, and hereby does agree to, indemnify and
hold harmless the Plan Administrator and each successor and each of
any such individual's heirs, executors and administrators, and the
delegates and appointees (other than any person, bank, firm or corporation
which is independent of the employer and which renders services to
the plan for a fee) from any and all liability and expenses, including
counsel fees, reasonably incurred in any action, suit or proceeding
to which he is or may be made a party by reason of being or having
been a member, delegate or appointee of the Plan Administrator, except
in matters involving criminal liability, intentional or willful misconduct.
If the employer purchases insurance to cover claims of a nature described
above, then there shall be no right of indemnification except to the
extent of any deductible amount under the insurance coverage or to
the extent of the amount the claims exceed the insured amount.
(7)
Approval of benefits. The Plan Administrator shall review and approve
or deny any application for retirement benefits within 30 days following
receipt thereof or within such longer time as may be necessary under
the circumstances. Any denial of an application for retirement benefits
shall be in writing and shall specify the reason for such denial.
(8)
Appeal procedure. Any person whose application for retirement benefits
is denied, who questions the amount of benefit paid, who believes
a benefit should have commenced which did not so commence or who has
some other claim arising under the plan ("claimant"), shall first
seek a resolution of such claim under the procedure hereinafter set
forth.
(a)
Any claimant shall file a notice of the claim with the Plan
Administrator which shall fully describe the nature of the claim.
The Plan Administrator shall review the claim and make an initial
determination approving or denying the claim.
(b)
If the claim is denied in whole or in part, the Plan Administrator
shall within 90 days (or such other period as may be established by
applicable law) from the time the application is received, mail notice
of such denial to the claimant. Such ninety-day period may be extended
by the Plan Administrator if special circumstances so require for
up to 90 additional days by the Plan Administrator's delivering notice
of such extension to the claimant within the first ninety-day period.
Any notice hereunder shall be written in a manner calculated to be
understood by the claimant and, if a notice of denial, shall set forth:
(c)
Upon receipt of notice denying the claim, the claimant shall
have the right to request a full and fair review by the Board of the
initial determination. Such request for review must be made by notice
to the Board within 60 days of receipt of such notice of denial. During
such review, the claimant or a duly authorized representative shall
have the right to review any pertinent documents and to submit any
issues or comments in writing. The Board shall, within 60 days after
receipt of the notice requesting such review, (or in special circumstances,
such as where the Board in its sole discretion holds a hearing, within
120 days of receipt of such notice), submit its decision in writing
to the person or persons whose claim has been denied. The decision
shall be final, conclusive and binding on all parties, shall be written
in a manner calculated to be understood by the claimant and shall
contain specific references to the pertinent plan provisions on which
the decision is based.
(d)
Any notice of a claim questioning the amount of a benefit in
pay status shall be filed within 90 days following the date of the
first payment which would be adjusted if the claim is granted unless
the Plan Administrator allows a later filing for good cause shown.
(e)
A claimant who does not submit a notice of a claim or a notice
requesting a review of a denial of a claim within the time limitations
specified above shall be deemed to have waived such claim or right
to review.
(f)
Nothing contained herein is intended to abridge any right of a claimant to appeal any final decision hereunder to a court of competent jurisdiction under 2 Pa.C.S.A. § 752. No decision hereunder is a final decision from which such an appeal may be taken until the entire appeal procedure of this Subsection H(8) of the plan has been exhausted.
I.
The pension fund.
(1)
Operation of the pension fund.
(a)
The Board is hereby authorized to hold and supervise the investment
of the assets of the pension fund, subject to the provisions of the
laws of the commonwealth and of this plan and any amendment thereto.
(b)
The Pension Fund shall be used to pay benefits as provided in
the plan and, to the extent not paid directly by the employer, to
pay the expenses of administering the plan pursuant to authorization
by the employer.
(c)
The employer intends the plan to be permanent and for the exclusive
benefit of its employees. It expects to make the contributions to
the pension fund required under the plan. The employer shall not be
liable in any manner for any insufficiency in the pension fund; benefits
are payable only from the pension fund, and only to the extent that
there are monies available therein. The Pension Fund will consist
of all funds held by the employer under the plan, including contributions
made pursuant to the provisions hereof and the investments, reinvestments
and proceeds thereof. The Pension Fund shall be held, managed, and
administered pursuant to the terms of the plan. Except as otherwise
expressly provided in the plan, the employer has exclusive authority
and discretion to manage and control the pension fund assets. The
employer may, however, appoint a trustee, custodian or investment
manager, at its sole discretion.
(2)
Powers and duties of employer. With respect to the pension fund,
the employer shall have the following powers, rights and duties, in
addition to those vested in it elsewhere in the plan or by law, unless
such duties are delegated:
(a)
To retain in cash so much of the pension fund as it deems advisable
and to deposit any cash so retained in any bank or similar financial
institution (including any such institution which may be appointed
to serve as trustee hereunder), without liability for interest thereon.
(b)
To invest and reinvest the principal and income of the fund
and keep said fund invested, without distinction between principal
and income, in securities which are at the time legal investments
for fiduciaries in accordance with Chapter 73 of the Pennsylvania
Probate Estates and Fiduciaries Code,[2] or as the same may be subsequently modified or amended.
[2]
Editor's Note: See 20 Pa.C.S.A. § 101 et seq.
(c)
To sell property held in the fund at either public or private
sale for cash or on credit at such times as it may deem appropriate;
to exchange such property; to grant options for the purchase or exchange
thereof.
(d)
To consent to and participate in any plan of reorganization,
consolidation, merger, extension or other similar plan affecting property
held in the fund; to consent to any contract, lease, mortgage, purchase,
sale or other action by any corporation pursuant to any such plan.
(e)
To exercise all conversion and subscription rights pertaining
to property held in the fund.
(f)
To exercise all voting rights with respect to property held
in the fund and in connection therewith to grant proxies, discretionary
or otherwise.
(g)
To place money at any time in a deposit bank deemed to be appropriate
for the purposes of this plan no matter where situated, including
in those cases where a bank has been appointed to serve as trustee
hereunder, the savings department of its own commercial bank.
(h)
In addition to the foregoing powers, the employer shall also
have all of the powers, rights, and privileges conferred upon trustees
in accordance with Chapter 73 of the Pennsylvania Probate Estates
and Fiduciaries Code, or as the same may be subsequently modified
or amended, and the power to do all acts, take all proceedings and
execute all rights and privileges, although not specifically mentioned
herein, as the employer may deem necessary to administer the pension
fund.
(i)
To maintain and invest the assets of this plan on a collective
and commingled basis with the assets of other pension plans maintained
by the employer, provided that the assets of each respective plan
shall be accounted for and administered separately.
(j)
To invest the assets of the pension fund in any collective commingled
trust fund maintained by a bank or trust company, including any bank
or trust company which may act as a trustee hereunder. In this connection,
the commingling of the assets of this plan with assets of other eligible,
participating plans through such a medium is hereby specifically authorized.
Any assets of the plan which may be so added to such collective trusts
shall be subject to all of the provisions of the applicable declaration
of trust, as amended from time to time, which declaration, if required
by its terms or by applicable law, is hereby adopted as part of the
plan, to the extent of the participation in such collective or commingled
trust fund by the plan.
(k)
To make any payment or distribution required or advisable to
carry out the provisions of the plan, provided that if a trustee is
appointed by the employer, such trustee shall make such distribution
only at the direction of the employer.
(l)
To compromise, contest, arbitrate, enforce or abandon claims
and demands with respect to the plan.
(m)
To retain any funds or property subject to any dispute without
liability for the payment of interest thereon, and to decline to make
payment or delivery thereof until final adjudication is made by a
court of competent jurisdiction.
(n)
To pay, and to deduct from and charge against the pension fund,
any taxes which may be imposed thereon, whether with respect to the
income, property or transfer thereof, or upon or with respect to the
interest of any person therein, which the fund is required to pay;
to contest, in its discretion, the validity or amount of any tax,
assessment, claim or demand which may be levied or made against or
in respect of the pension fund, the income, property or transfer thereof,
or in any matter or thing connected therewith.
(o)
To appoint any persons or firms (including, but not limited
to, accountants, investment advisors, counsel, actuaries, physicians,
appraisers, consultants, professional plan administrators and other
specialists), or otherwise act to secure specialized advice or assistance,
as it deems necessary or desirable in connection with the management
of the fund. To the extent not prohibited by applicable law, the employer
shall be entitled to rely conclusively upon and shall be fully protected
in any action or omission taken by it in good faith reliance upon,
the advice or opinion of such persons or firms, provided such persons
or firms were prudently chosen by the employer, taking into account
the interests of the participants and beneficiaries and with due regard
to the ability of the persons or firms to perform their assigned functions.
(p)
To retain the services of one or more persons or firms for the
management of (including the power to acquire and dispose of) all
or any part of the fund assets, provided that each of such persons
or firms is registered as an investment advisor under the Investment
Advisers Act of 1940,[3] is a bank (as defined in that act), or is an insurance
company qualified to manage, acquire or dispose of pension trust assets
under the laws of more than one state; in such event, the employer
shall follow the directions of such investment manager or managers
with respect to the acquisition and disposition of fund assets, but
shall not be liable for the acts or omissions of such investment manager
or managers, nor shall it be under any obligation to review or otherwise
manage any fund assets which are subject to the management of such
investment manager or managers. If the employer appoints a trustee,
the trustee shall not be permitted to retain such an investment manager
except with the express written consent of the employer.
[3]
Editor's Note: See 15 U.S.C. § 80b–20.
(3)
Common investments. The employer shall not be required to make separate
investments for individual participants or to maintain separate investments
for each participant's account, but may invest contributions and any
profits or gains therefrom in common investments.
(4)
Compensation and expenses of appointed trustee. If a trustee is appointed,
the trustee shall be entitled to such reasonable compensation as shall
from time to time be agreed upon by the employer and the trustee,
unless such compensation is prohibited by law. Such compensation,
and all expenses reasonably incurred by the trustee in carrying out
its functions, shall constitute a charge upon the employer or the
pension fund, which may be executed at any time after 30 days' written
notice to the employer. The employer shall be under no obligation
to pay such costs and expenses, and, in the event of its failure to
do so, the trustee shall be entitled to pay the same, or to be reimbursed
for the payment thereof, from the pension fund.
(5)
Periodic accounting. If a trustee is appointed, the pension fund
shall be evaluated annually, or at more frequent intervals, by the
trustee and a written accounting rendered as of each fiscal year end
of the fund, and as of the effective date of any removal or resignation
of the trustee, and such additional dates as requested by the employer,
showing the condition of the fund and all receipts, disbursements
and other transactions effected by the trustee during the period covered
by the accounting, based on fair market values prevailing as of such
date.
(6)
Value of the pension fund. All determinations as to the value of
the assets of the pension fund, and as to the amount of the liabilities
thereof, shall be made by the employer or its appointed trustee, whose
decisions shall be final and conclusive and binding on all parties
hereto, the participants and beneficiaries and their estates. In making
any such determination, the employer or trustee shall be entitled
to seek and rely upon the opinion of or any information furnished
by brokers, appraisers and other experts, and shall also be entitled
to rely upon reports as to sales and quotations, both on security
exchanges and otherwise as contained in newspapers and in financial
publications.
J.
Amendment and termination.
(1)
Amendment of the plan. The employer may amend this plan at any time
or from time to time by an instrument, in writing, executed in the
name of the employer under its Municipal Seal by officers duly authorized
to execute such instrument and delivered to the Board; provided, however:
(a)
That no amendment shall deprive any participant or any beneficiary
of a deceased participant of any of the benefits to which each is
entitled under this plan with respect to contributions previously
made;
(2)
Termination of the plan. The employer shall have the power to terminate
this plan in its entirety at any time by an instrument in writing
executed in the name of the employer.
(3)
Automatic termination of contributions. Subject to the provisions
of the Act governing financially distressed municipalities, the liability
of the employer to make contributions to the pension fund shall automatically
terminate upon liquidation or dissolution of the employer, upon its
adjudication as a bankrupt or upon the making of a general assignment
for the benefit of its creditors.
(4)
Distribution upon termination.
(a)
In the event of the termination of the plan, all amounts of
vested benefits accrued by the affected participants as of the date
of such termination, to the extent funded on such date, shall be nonforfeitable
hereunder. In the event of termination of the plan, the employer shall
direct either that the Plan Administrator continue to hold the vested
accrued benefits of participants in the pension fund in accordance
with the provisions of the plan (other than those provisions related
to forfeitures) without regard to such termination until all funds
have been distributed in accordance with the provisions, or that the
Plan Administrator immediately distribute to each participant an amount
equal to the vested accrued benefit to the date of plan termination.
(b)
If there are insufficient assets in the pension fund to provide
for all vested accrued benefits as of the date of plan termination,
priority shall first be given to the distribution of any amounts attributable
to mandatory or voluntary employee contributions before assets are
applied to the distribution of any vested benefits attributable to
other sources hereunder.
(c)
All other assets attributable to the terminated plan shall be
distributed and disposed of in accordance with the provisions of applicable
law and the terms of any instrument adopted by the employer which
effects such termination.
(5)
Residual assets. If all liabilities to vested participants and any
others entitled to receive a benefit under the terms of the plan have
been satisfied and there remain any residual assets in the pension
fund, such residual assets remaining shall be returned to the employer
insofar as such return does not contravene any provision of law, and
any remaining balance, in excess of employer contributions, shall
be returned to the commonwealth.
(6)
Exclusive benefit rule. In the event of the discontinuance and termination
of the plan as provided herein, the employer shall dispose of the
pension fund in accordance with the terms of the plan and applicable
law; at no time prior to the satisfaction of all liabilities under
the plan shall any part of the corpus or income of the pension fund,
after deducting any administrative or other expenses properly chargeable
to the pension fund, be used for or diverted to purposes other than
for the exclusive benefit of the participants in the plan, their beneficiaries
or their estates.
K.
Funding standard requirements.
(1)
Actuarial valuations.
(a)
The plan's actuary shall perform an actuarial valuation at least
biennially. Such biennial actuarial valuation report shall be made
as of the beginning of each plan year occurring in an odd-numbered
calendar year, beginning with the year 1985 and shall be prepared
and certified by an approved actuary, as such term is defined in the
Act.
(b)
The expenses attributable to the preparation of any actuarial
valuation report or investigation required by the Act or any other
expense which is permissible under the terms of the Act and which
are directly associated with administering the plan shall be an allowable
administrative expense payable from the assets of the pension fund.
Such allowable expenses shall include but not be limited to the following:
[1]
Investment costs associated with obtaining authorized investments
and investment management fees;
[2]
Accounting expenses;
[3]
Premiums for insurance coverage on fund assets;
[4]
Reasonable and necessary counsel fees incurred for advice or
to defend the fund; and
[5]
Legitimate travel and education expenses for plan officials;
provided, however, that the municipal officials of the employer, in
their fiduciary role, shall monitor the services provided to the plan
to ensure that the expenses are necessary, reasonable and benefit
the plan; and further provided, that the Plan Administrator shall
document all such expenses item by item, and where necessary, hour
by hour.
(2)
Duties of Chief Administrative Officer.
(a)
Such actuarial reports shall be prepared and filed under the
supervision of the Chief Administrative Officer.
(b)
The Chief Administrative Officer of the plan shall determine
the financial requirements of the plan on the basis of the most recent
actuarial report and shall determine the minimum municipal obligation
of the employer with respect to funding the plan for any given plan
year. The Chief Administrative Officer shall submit the financial
requirements of the plan and the minimum municipal obligation of the
employer to the Board annually and shall certify the accuracy of such
calculations and their conformance with the Act.
(3)
Benefit plan modifications. Prior to the adoption of any benefit
plan modification by the employer, the Chief Administrative Officer
of the plan shall provide to the Board a cost estimate of the proposed
benefit plan modification. Such estimate shall be prepared by an approved
actuary, which estimate shall disclose to the Board the impact of
the proposed benefit plan modification on the future financial requirements
of the plan and the future minimum municipal obligation of the employer
with respect to the plan.
L.
Miscellaneous provisions.
(1)
Employment rights. No employee of the employer nor anyone else shall
have any rights whatsoever against the employer or the Plan Administrator
as a result of this plan except those expressly granted hereunder.
Participation in this plan shall not give any right to any employee
to be retained in the employ of the employer, nor shall interfere
with the right of the employer to discharge any employee and to deal
with such employee without regard to the effect such treatment might
have upon participation in this plan.
(2)
Meaning of certain words. For purposes of this plan, the masculine
gender shall include the feminine gender and the singular shall include
the plural, and vice versa, in all cases wherever the person or context
shall plainly so require. Headings of sections and subsections are
inserted only for convenience of reference and are not to be considered
in the construction of the plan.
(3)
Information to be furnished by the employer. The employer shall furnish
to the Plan Administrator (and where applicable, the trustee) information
in the employer's possession as the Plan Administrator and the trustee
shall require from time to time to perform their duties under the
plan.
(4)
Severability of provisions. Should any provisions of this plan be
held illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts of this plan, and the plan shall
be construed and enforced as if said illegal and invalid provisions
had never been inserted herein.
(5)
Incapacity of participant. If any participant shall be physically
or mentally incapable of receiving or acknowledging receipt of any
payment of pension benefits hereunder, the Plan Administrator, upon
the receipt of satisfactory evidence that such participant is so incapacitated
and that another person or institution is maintaining the participant
and that no guardian or committee has been appointed for the participant,
may provide for such payment of pension benefits hereunder to such
person or institution so maintaining the participant, and any such
payments so made shall be deemed for every purpose to have been made
to such participant.
(6)
Pension fund for sole benefit of participants. The income and principal
of the pension fund are for the sole use and benefit of the participants
covered hereunder, and to the extent permitted by law, shall be free,
clear and discharged from and are not to be in any way liable for
debts, contracts or agreements, now contracted or which may hereafter
be contracted, and from all claims and liabilities now or hereafter
incurred by any participant or beneficiary.
(7)
Benefits for a deceased participant. If any benefit shall be payable
under the plan to or on behalf of a participant who has died, if the
plan provides that the payment of such benefits shall be made to the
participant's estate, and if no administration of such participant's
estate is pending in the court of proper jurisdiction, then the Plan
Administrator, at its sole option, may pay such benefits to the surviving
spouse of such deceased participant, or, if there is no surviving
spouse, to such participant's then living issue, per stirpes; provided,
however, that nothing contained herein shall prevent the Plan Administrator
from insisting upon the commencement of estate administration proceedings
and the delivery of any such benefits to a duly appointed executor
or administrator.
(8)
Assets of the fund. Nothing contained herein shall be deemed to give
any participant or beneficiary any interest in any specific property
of the pension fund or any right except to receive such distributions
as are expressly provided for under the plan.
(9)
Personal liability. Subject to the provisions of the Act and unless
otherwise specifically required by other applicable laws, no past,
present or future officer or agent of the employer or Plan Administrator
shall be personally liable to any participant, beneficiary or other
person under any provision of the plan.
(10)
Construction of document. This plan may be executed and/or conformed
in any number of counterparts, each of which shall be deemed an original
and shall be construed and enforced according to the laws of the commonwealth,
excepting such commonwealth's choice of law rules.
