City of Hagerstown, MD
Washington County
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Table of Contents
Table of Contents
A. 
Participant designates beneficiary. Each participant may designate a beneficiary or beneficiaries (who may be named contingently or successively) to receive such benefits as may be payable under the plan upon or after his or her death, and, subject to the provisions of §§ 38-41 through 38-44, such designation may be changed from time to time by the participant by filing a new designation. Each designation will revoke all prior designations by the same participant, shall be in form prescribed by the City, and will be effective only when filed in writing with the City during the participant's lifetime.
B. 
Absence of valid beneficiary designation. In the absence of a valid beneficiary designation (except in conjunction with the election of a form of benefit payment which does not require the designation of a specific beneficiary), or if, at the time any benefit payment is due to a beneficiary, there is no living beneficiary eligible to receive the payment, validly named by the participant, the City shall direct the Trustees to distribute any such benefit payment to:
(1) 
The participant's spouse, if then living; otherwise to
(2) 
The participant's then living descendants, if any, per stirpes; otherwise to
(3) 
The participant's then living parent or parents, equally; otherwise to
(4) 
The participant's estate.
C. 
Question regarding right of a person to receive a benefit payment. In determining the existence or identity of anyone entitled to a benefit payment, the City and the Trustees may rely conclusively upon information supplied by the participant's personal representative. In the event of a lack of adequate information being supplied to the City, or in the event that any question arises as to the right of any person to receive a benefit payment as aforesaid, or in the event that a dispute arises with respect to any such payment, then, notwithstanding the foregoing, the City, in its sole discretion, may, in complete discharge of the City and the Trustees, and without liability for any tax or other consequences which might flow therefrom, direct the Trustees to:
(1) 
Distribute the payment to the participant's estate;
(2) 
Retain such payment, without liability for interest, until the rights thereto are determined; or
(3) 
Deposit the payment into any court of competent jurisdiction.
A. 
Notice to last post office address. Any communication, statement or notice addressed to a participant or beneficiary at the last post office address filed with the City, or if no such address was filed with the City, then at the last post office address as shown on the City's records, shall be binding on the participant or beneficiary for all purposes of the plan. Except for the City's sending of a registered letter to the last known address, neither the Trustees nor the City shall be obliged to search for any participant or beneficiary.
B. 
Distribution to next of kin if participant or beneficiary fails to claim amount. If the City notifies any participant or beneficiary that he or she is entitled to an amount under the plan and the participant or beneficiary fails to claim such amount or make his or her or location known to the City within three years thereafter, then, except as otherwise required by law, if the location of one or more of the next of kin of the participant, including the participant's surviving spouse, is known to the City, it may direct distribution of such amount to any one or more or all of such next of kin, and in such proportions as the City determines.
C. 
If location of participant, beneficiary, or next of kin cannot be determined. If the location of none of the foregoing persons can be determined, the City shall have the right to direct that the amount payable shall be deemed to be a forfeiture and treated in accordance with § 38-24, except that the dollar amount of the forfeiture, unadjusted for gains or losses in the interim, shall be reinstated if a claim for the benefit is made by the participant or beneficiary to whom it was payable. If any benefit payable to an unlocated participant or beneficiary is subject to escheat pursuant to applicable state law, neither the Trustees nor the City shall be liable to any person for any payment made in accordance with such law.
A. 
All contributions under the plan shall be paid to the Trustees and deposited in the trust.
B. 
Such contributions, all investments made therewith and proceeds thereof and all earnings and profits thereon, less the authorized disbursements therefrom, shall constitute the trust, which trust, and the agreement under which it is maintained, shall in all respects constitute a part of the plan.
C. 
The City reserves the right to select, and from time to time to change, the Trustees, to amend the trust with the consent of the Trustees, or to adopt a different funding vehicle.
It shall be impossible by operation of the plan or trust, by natural termination of either, by power of revocation or amendment, by the happening of any contingency, by collateral arrangement or by other means, for any part of the corpus or income of the trust, or any funds contributed thereto, to inure to the benefit of the City or otherwise be used for or diverted to purposes other than providing benefits to participants and beneficiaries and defraying reasonable expenses of administering the plan, except as otherwise set forth in the trust with respect to the conditions under which trust assets may be returned to the City.
A. 
Except as provided below, no benefit payable at any time under this plan may be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, execution, levy or other legal and equitable process.
B. 
However, the prohibitions of the preceding sentence shall not apply to, and the Trustees shall fully recognize the creation, assignment or recognition of a right to any benefit payable with respect to a participant pursuant to a qualified domestic relations order.
C. 
For the purposes hereof, a "qualified domestic relations order" shall mean a judgment, decree or order made pursuant to a state domestic relations law which related to the provision of child support, alimony payments or marital property rights and:
(1) 
Which clearly specifies:
(a) 
The names and last known mailing addresses of the participant and each payee;
(b) 
The amount or percentage of the participant's benefits to be paid by this plan to each payee (or the manner in which such amount or percentage is to be determined);
(c) 
The number of payments or period to which such order relates; and
(2) 
Which does not:
(a) 
Require this plan to provide increased benefits; or
(b) 
Require the payment of the same benefits to any payee which are payable to another payee pursuant to a prior qualified domestic relations order.
(c) 
Require the payment of benefits to or for the benefit of the same-sex spouse of a participant or former participant who does not qualify as the participant's "alternate payee" under Section 414(p)(8) of the Internal Revenue Code.
[Added 6-18-2013 by Ord. No. O-13-09[1]]
[1]
Editor's Note: This ordinance provided that it become effective on 1-1-2013.
A. 
Sole responsibility and control. Except as otherwise specifically provided herein, the City shall have the sole responsibility for and the sole control of the operation and administration of the plan.
B. 
Powers, duties and responsibilities. The City shall have the power and authority to take all action and to make all decisions and interpretations which may be necessary or appropriate in order to administer and operate the plan, including, without limiting the generality of the foregoing, the power, duty and responsibility to:
(1) 
Resolve and determine all disputes or questions arising under the plan, including the power to determine the rights of employees, participants and beneficiaries, and their respective benefits, and to remedy any ambiguities, inconsistencies or omissions;
(2) 
Adopt such rules of procedure and regulations as in its opinion may be necessary for the proper and efficient administration of the plan and as are consistent with the plan;
(3) 
Implement the plan in accordance with its terms and such rules and regulations;
(4) 
Direct the Trustees with respect to the eligibility of any employee as a participant and the crediting and distribution of the trust, which are to be made only upon the basis of instructions from the City pursuant to the terms of the plan; and
(5) 
Establish and carry out a funding policy and method consistent with the objectives of the plan, pursuant to which the City shall determine the plan's liquidity and financial needs and communicate them to the Trustees (or other fiduciaries who are charged with determining investment policy).
C. 
Act through City Council. Subject to the power to delegate in the manner described in § 38-54, the City shall act through the City Council.
[Amended 4-25-2017 by Ord. No. O-17-04]
The plan shall be operated and administered on behalf of the City by the Administrator, who shall be governed by the following:
A. 
Powers of the Administrator. Except to the extent that the City has retained any power or authority, or allocated duties and responsibilities to another fiduciary, the Administrator shall have full power and authority to administer and operate the plan in accordance with its terms and in particular the authority contained in §§ 38-53 through 38-61, and, in acting pursuant thereto, shall have full power and authority to deal with all persons in any matter directly connected with the plan, including, but not limited to, the Trustees, other fiduciaries, insurance companies, investment advisors, other advisors and specialists, participants, beneficiaries and their representatives, in accordance with the following provisions:
(1) 
To make and enforce rules and regulations as it shall deem necessary or proper for the efficient administration of the plan;
(2) 
To make and enforce procedures to be followed by employees in filing applications for benefits and for furnishing the evidence necessary to establish the employees' right to benefits;
(3) 
To make and enforce determinations concerning the rights of employees applying for or receiving benefits;
(4) 
To make and enforce procedures which afford a mechanism for adjusting complaints of an employee dissatisfied with determinations of the Administrator;
(5) 
To make and enforce procedures for determining the service credit of employees which affords employees an opportunity to object, in writing, and to establish service credit in advance of retirement;
(6) 
To make and enforce procedures for authorizing disbursements from the fund created under the plan and to authorize disbursements from the Trustees of the fund in accordance with the plan documents;
(7) 
To make and enforce procedures and standards and make determinations concerning total and permanent disability in accordance with the plan documents;
(8) 
To compute the amount of benefits that shall be payable to any person in accordance with the plan documents;
(9) 
To interpret the plan;
(10) 
To otherwise decide questions concerning the eligibility of any employee to participate in the plan or to receive benefits from the plan;
(11) 
To employ or engage actuaries to make actuarial evaluations of the liabilities under the plan, to recommend the mortality and other tables and interest rates to be used from time to time in actuarial and other computations for any purpose of the plan, to recommend the amounts of contributions to be made by the City and to perform such other services as the Administrator shall deem necessary or desirable in connection with the Administration of the plan;
(12) 
To employ or engage accountants as it shall deem necessary or desirable in connection with the administration of the plan;
(13) 
To employ or engage legal counsel as it shall deem necessary or desirable in connection with the administration of the plan;
(14) 
To employ or engage any other experts as it shall deem necessary or desirable in connection with the administration of the plan;
(15) 
To determine the mortality and other tables and interest rates to be used from time to time in actuarial or other computations for any purpose of the plan;
(16) 
To recommend to the City the amounts of contributions to be made by the City, from time to time, under the provisions of the plan; and
(17) 
To act for the City before all persons in any matter directly pertaining to the plan.
B. 
Limits on power.
(1) 
The Administrator shall have no power to:
(a) 
Amend or terminate the plan;
(b) 
Determine City contributions;
(c) 
Exercise authority to direct the Trustees with respect to the investment of the trust;
(d) 
Affect the employer-employee relationship between the City and any employee; or
(e) 
Retain and/or discharge the Trustees;
(2) 
All of which powers are reserved to the City unless expressly granted to the Administrator.
C. 
Fiduciary powers, duties and responsibilities. Fiduciary duties, powers and responsibilities (other than those reserved to the Trustees, with respect to management or control of trust assets) may be allocated among the fiduciaries (if there be more than one) to whom such duties, powers and responsibilities have been delegated, so long as such allocation is pursuant to action of the City or by written agreement executed by the involved fiduciaries and approved by the City in which case, such fiduciary shall have any liability, with respect to any duties, powers or responsibilities not allocated to him, for the acts or omissions of any other fiduciary. Any person may serve in more than one fiduciary capacity under the plan, including those of Administrator and Trustee.
D. 
Specialized advice or assistance.
(1) 
Appoint persons or firms; rely upon advice.
(a) 
The Administrator may appoint any persons or firms, or otherwise act to secure specialized advice or assistance, as it deems necessary or desirable in connection with the administration and operation of the plan.
(b) 
The Administrator 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 firms or persons.
(2) 
Delegate duties, powers or responsibilities to City employee.
(a) 
The Administrator shall have the power and authority to delegate from time to time by written instrument all or any part of his or her duties, powers or responsibilities under the plan, both ministerial and discretionary, as the Administrator deems appropriate, to an employee of the City of Hagerstown, who shall be designated by the Administrator as the plan Coordinator (the "Coordinator"), and in the same manner to revoke any such delegation of duties, powers or responsibilities.
(b) 
Any action of the Coordinator in the exercise of such delegated duties, powers or responsibilities shall have the same force and effect for all purposes hereunder as if such action had been taken by the Administrator.
(c) 
Further, the Administrator may authorize the Coordinator to execute any certificate or document on behalf of the Administrator, in which event any person notified by the Administrator of such authorization shall be entitled to accept and conclusively rely upon any such certificate or document executed by such person as representing action by the Administrator until such third person shall have been notified of the revocation of such authority.
(d) 
The Administrator shall not be liable for any act or omission of any person to whom the Administrator's duties, powers or responsibilities have been delegated, nor shall any person to whom any duties, powers or responsibilities have been delegated have any liabilities with respect to any duties, powers or responsibilities not delegated to him or her.
E. 
Liability.
(1) 
All representatives of the City, and/or members of the Retirement Plan Committee shall use ordinary care and diligence in the performance of their duties pertaining to the plan, but no such individual shall incur any liability:
(a) 
By virtue of any contract, agreement, bond or other instrument made or executed by the individual or on his or her behalf in the individual's official capacity with respect to the plan;
(b) 
For any act or failure to act, or any mistake or judgment made, in his or her official capacity with respect to the plan, unless resulting from the individual's gross negligence or willful misconduct; or
(c) 
For the neglect, omission or wrongdoing of any other person involved with the plan.
(2) 
The plan shall indemnify and hold harmless each such individual from the effects and consequences of the individual's acts, omissions and conduct in his or her official capacity with respect to the plan, except to the extent that such effects and consequences shall result from the individual's own willful misconduct or gross negligence; provided, however, that any person who shall claim the right to any payment or damage as a result of the actions of any individual in connection with the performance of their duties pertaining to the plan, shall be entitled to look only to the trust fund created by the plan for payment. Such individual shall have no other right, claim or demand therefor against the City.
F. 
Liability insurance.
(1) 
The plan may purchase, using plan assets and as an expense of the plan, liability insurance for the plan and/or for its fiduciaries to cover liability or losses occurring by reason of an act or omission of a fiduciary, provided such insurance contract permits recourse by the insurer against the fiduciary in the case of breach of fiduciary obligation by such fiduciary.
(2) 
Any fiduciary may purchase, from and for his or her own account, insurance to protect the fiduciary in the event of a breach of fiduciary duty and the City may also purchase insurance to cover the potential liability of one or more persons who serve in a fiduciary capacity with regard to the plan.
G. 
Fiduciary's benefits.
(1) 
Nothing in the plan shall be construed so as to prevent any fiduciary from:
(a) 
Receiving any benefit to which he or she may be entitled as a participant or beneficiary; or
(b) 
Receiving any reasonable compensation for services rendered, or for the reimbursement of expenses properly incurred in the performance of his or her duties under the plan (except that no person so serving who receives compensation as an employee shall receive compensation from the plan, except for reimbursement of expenses properly incurred); or
(c) 
Serving as a fiduciary in addition to being an officer, employee, agent, or other representative of the City or any related entity.
(2) 
However, the fiduciary shall not be entitled to vote or act upon, or execute on behalf of the plan, documents specifically relating to, his or her own participation in the plan.
[Amended 12-20-2011 by Ord. No. O-11-24; 4-25-2017 by Ord. No. O-17-04]
The Retirement Plan Committee shall serve as an advisor to the Administrator, the Coordinator and the City Council with respect to the investment of the plan's assets and any other matters that may be referred to that Committee by the Administrator, the Coordinator or the City Council.
A. 
Individuals serving on the Committee.
(1) 
The Committee shall consist of those individuals who hold the following positions:
(a) 
Human Resources Director;
(b) 
Finance Director;
(c) 
Representative of Local 3373 of the American Federation of State, County, and Municipal employees;
(d) 
Representative of Local 1605 of the International Association of Firefighters;
(e) 
Representative of the City of Hagerstown Police Department management employees;
(f) 
Representative of the City of Hagerstown Fire Department management employees;
(g) 
Member of the Hagerstown City Council who shall be entitled to vote only upon matters which do not require Council approval;
(h) 
A citizen of Washington County, Maryland, with investment or financial experience who shall be appointed by the Mayor and City Council; and
(i) 
A retiree receiving benefits from the plan who shall be appointed by the Mayor and City Council.
(2) 
The Committee shall elect its own Chairperson and Vice Chairperson annually.
B. 
Compensation, acceptance of duties and responsibilities. Subject to his or her right to resign at any time, each member of the Committee shall serve without compensation at the pleasure of the City, and the City may appoint, and may revoke the appointment of, additional members to serve with the Committee as may be determined to be necessary or desirable from time to time. Each member of the Committee, by accepting appointment to the Committee, shall thereby be deemed to have accepted all of the duties and responsibilities of such appointment, and to have agreed to the faithful performance of his or her duties thereunder.
C. 
Organization; voting.
(1) 
The Committee shall adopt such formal organization and method of operation as it shall deem desirable for the conduct of its affairs.
(2) 
The Committee shall act as a body, and the individual members of the Committee shall have no powers and duties as such, except as provided herein.
(3) 
The Committee shall act by vote of a majority of its members at the time in office (other than those disqualified from voting pursuant to § 38-54G), either at a meeting or in writing without a meeting.
D. 
Recommendations. The Committee shall make nonbinding recommendations to the Administrator, the Coordinator and the City Council on matters referred to the Committee. Those recommendations shall be advisory only and shall not be binding on the Administrator, the Coordinator or the City Council.
Neither the Trustees nor the City shall be obliged to inquire into or be responsible for any act or failure to act, or the authority therefor, on the part of the other.
[Amended 4-25-2017 by Ord. No. O-17-04]
Whenever in the administration or operation of the plan discretionary actions by the City, the Administrator or the Trustees are required or permitted, such action shall be consistently and uniformly applied to all persons similarly situated, and no such action shall be taken which shall discriminate in favor of highly compensated employees as defined in Section 414(q) of the Internal Revenue Code.
[Amended 4-25-2017 by Ord. No. O-17-04]
The Administrator and all other persons in any fiduciary capacity with respect to the plan shall discharge their duties with respect to the plan:
A. 
Solely in the interest of the participants and beneficiaries and for the exclusive purposes of providing benefits to participants and their beneficiaries and defraying reasonable expenses of administering and operating the plan;
B. 
With the care, skill, prudence and diligence under the circumstances then prevailing that a prudent individual acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; and
C. 
In accordance with the documents and instruments governing the plan.
In any action or judicial proceeding affecting the plan and/or the trust, except as may be otherwise required by law, no participant or beneficiary shall be entitled to any notice or service of process, and any final judgment entered in such action shall be binding on all persons interested in, or claiming under, the plan.
Expenses incurred in the administration and operation of the plan shall be paid by the Trustees out of the trust unless the City, in its discretion, elects to pay them.
[Amended 4-25-2017 by Ord. No. O-17-04]
An employee aggrieved by a decision of the Administrator may request that the Administrator review his or her decision, and the Administrator shall then review its decision. The decision of the Administrator following such review upon request of an employee shall be final and conclusive.