ALP

*Cross references: Administration, ch. 2; personnel regulations and benefits, ch. 30.

State law references: State retirement system, SDCL ch. 3-12; city retirement systems and pensions, SDCL ch. 9-16.

ARTICLE I. IN GENERAL

Secs. 35-1--35-15. Reserved.

ARTICLE II. EMPLOYEE'S RETIREMENT SYSTEM

DIVISION 1. GENERALLY

Sec. 35-16. Definitions.

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Accumulated contributions means the sum of all amounts deducted from the compensation of a member and credited to his individual account in the annuity savings fund, together with regular interest thereon.

Annuity means an annual amount, derived from a member's accumulated contributions, payable in equal monthly installments throughout the future life of a person, or for a temporary period.

Annuity reserve means the present value of all payments to be made on account of any annuity. The annuity reserve shall be computed upon the basis of such mortality table and regular interest as the board shall from time to time adopt.

Beneficiary means any person, except a retirant, who is in receipt of, or who is designated to receive, a retirement allowance or other benefit payable by the retirement system.

Board of trustees or board means the board of trustees provided in this article.

Child means an eligible child who is an unmarried child under age 18, born to or legally adopted by the member.

Compensation means a member's regular salary or wages paid to the member by the city for personal services rendered to the city. If a member's compensation is not all paid in money, the council shall fix the value of the portion of compensation that is not paid in money. In determining regular salary or wages paid, persons receiving workers' compensation or payments in lieu of sick leave shall be treated as if they had not received workers' compensation payments or payments in lieu of sick leave but had been paid their regular salary or wages during the period of time under consideration.

Credited service means the number of years and months of service standing to a member's credit.

Eligible handicapped child means an unmarried, dependent child born to or legally adopted by the member, irrespective of age, including any child for whom an application is currently pending, and for which the board is provided medical proof that such child is permanently unable to hold fully self-supporting gainful employment because of mental or physical disability. Whether the child is dependent shall be determined in the discretion of the board on an individual basis. Factors which may be considered in determining dependency include, but are not limited to:

(a) Whether the child is claimed as a dependent on another person's federal income tax return.

(b) Whether, and the extent to which, the child receives economic, social, or other living assistance.

The board shall decide in each individual case how often to require confirming medical proof of handicapped or evidence of dependency for continuation of benefits.

Final average pay, as it applies to all members, means the average of the highest annual compensation paid during any three consecutive years of credited service, selected by the member, contained within the ten years of credited service immediately preceding the date employment with the city last terminates. If a member has less than three years of credited service, final average pay shall be the average of the annual rates of compensation for the total period of service of the member. For any year chosen, that year's annual compensation shall include sick leave payments and vacation payments, if received in that year, but shall not include payments for mileage reimbursement, car allowance, clothing allowance, and other incidental payments.

Notwithstanding any provision to the contrary, the annual compensation of each member taken into account in determining the final average pay used to determine benefit accruals in any calendar year beginning after December 31, 2003, shall not exceed $205,000.00. The $205,000.00 limit on annual compensation shall be adjusted for cost-of-living increases in accordance with section 401(a)(17)(B) of the Internal Revenue Code. The cost-of-living adjustment in effect for a calendar year applies to annual compensation for the determination period that begins with or within such calendar year.

Final pay means a member's annual rate of compensation at the time his employment with the city last terminates.

Management member means any member who is elected as mayor, appointed or employed by the city as an appointive officer, or manager of the city, but shall not include temporary employees nor elected members of the council.

Member means any person who is included in the membership of the retirement system.

Pension means an annual amount, derived from contributions made by the city, payable in equal monthly installments throughout the future life of a person, or for a temporary period.

(1) All sums of money or property that are contributed by gifts, devises and bequests;

Pension reserve means the present value of all payments to be made on account of any pension. The pension reserve shall be computed upon the basis of such mortality and other tables of experience and regular interest as the board shall from time to time adopt.

Police officer member means any member who is employed in the police department holding the rank of patrolman, including probationary patrolman, or higher rank; but it shall not include any person who is privately employed as a police officer, nor any person who is temporarily employed as a police officer for an emergency, nor any civilian employee in the police department.

Regular interest means such rate of interest per annum as the board shall from time to time adopt.

Retirant means any member who retires with a retirement allowance payable by the retirement system.

Retirement means a member's withdrawal from city employment with a retirement allowance payable by the retirement system.

Retirement allowance means the sum of the annuity and pension payable to a retirant or beneficiary.

Service means personal service rendered to the city by the mayor or appointed officer of the city or by an employee of the city.

(1) Age 60 years with five or more years of credited service or age 55 years with 30 or more years of credited service for a general member.

Workers' compensation period means the period a person is in receipt of workers' compensation on account of a member's disability or death arising out of and in the course of his city employment. If the person is paid a single sum in lieu of his future workers' compensation, his workers' compensation period shall be the period, if any, he was in receipt of workers' compensation in weekly or other periodic payments plus the period arrived at by dividing the single sum by his weekly or other periodic payment award.

(1957 Rev. Ords., § 2.502; Ord. No. 2491, 8-7-67; Ord. No. 2757, 6-8-71; Ord. No. 2791, 12-6-71; Ord. No. 36-73, § 1, 4-30-73; Ord. No. 12-74, § 1, 4-8-74; Ord. No. 112-80, § 1, 11-24-80; Ord. No. 124-81, § 1, 12-28-81; Ord. No. 108-85, § 1, 12-2-85; Ord. No. 64-86, §§ 1, 2, 6-30-86; Ord. No. 96-87, §§ 1, 2, 11-16-87; Ord. No. 110-89, §§ 1--3, 10-16-89; Ord. No. 110-90, § 1, 12-3-90; Ord. No. 83-93, § 1, 11-22-93; Ord. No. 36-95, §§ 1, 2, 3-6-95; Ord. No. 127-99, § 1, 12-13-99; Ord. No. 5-05, § 1, 1-10-05)

Sec. 35-17. Officers of retirement system.

(a) The board shall elect from its own members a chairman and a chairman pro tem.

(b) The director of personnel shall serve as the administrative officer to the board of trustees and shall transact all business of the retirement system except for the keeping of the accounting records which shall be delegated to the city finance director.

(c) The city finance director shall be treasurer of the retirement system and shall administer the accounting of the retirement system as well as be custodian of all the assets except those placed with a funding agent or investment counsel as provided in section 35-50.

(e) The board shall appoint an actuary who shall be the technical advisor to the board on matters regarding the operation of the retirement system. He shall perform such other duties as are required of him under this article.

(f) The board shall appoint as medical director a physician who is neither a retirant nor beneficiary of the retirement system. The medical director shall be responsible to and shall serve at the pleasure of the board. He shall arrange for and pass upon all medical examinations required under this article; he shall investigate all essential statements and certificates of a medical nature furnished by or on behalf of a member, retirant or beneficiary in connection with a claim for disability or service-connected death benefits; and he shall report in writing to the board his conclusions on medical matters referred to him by the board.

(g) The board may employ such professional and other services as are required for the proper operation of the retirement system.

(h) The board shall have power to select and employ a funding agent or engage in contract for investment counsel and advice as provided in section 35-50.

(i) The board of trustees, by resolution, may appoint an administrator and hire additional employees as may be required to transact the business of the retirement system. The board of trustees shall require bonding of the administrator in an amount set by the board of trustees, which may be included under any city employee's blanket bond. The bond premium may be paid by the system.

(j) The administrator shall make available to any member of the system and to any beneficiary of the system a summary system description. The summary system description shall be written in a manner to be understood by the average member of the system and shall be sufficiently accurate and comprehensive to apprise participants and beneficiaries of their rights and obligations under the system. The summary system description shall include:

(3) A description of the relevant provisions of any applicable collective bargaining agreement;

(4) The system's requirements respecting eligibility for participation and benefits;

(6) Circumstances which may result in disqualification, ineligibility or denial or loss of benefits;

(7) The source of financing of the system and the identity of any organization through which benefits are provided;

(8) The date of the end of the system year and whether the records of the system are kept on a calendar, policy or fiscal year basis; and

(9) The procedures to be followed in presenting claims for benefits under the system and the remedies available under the system for the redress of claims which are denied in whole or in part.

(k) The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary system description, the latest annual report and any bargaining agreement, trust agreement, contract or other instrument under which the system is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies.

(l) The administrator shall annually furnish to each system member or beneficiary a statement showing, on the basis of the latest available information, the member's or beneficiary's total contributions, if any, total benefits accrued and nonforfeitable benefits, if any, which have accrued or the earliest date on which such benefits will become nonforfeitable.

(1957 Rev. Ords., § 2.508; Ord. No. 2650, 11-17-69; Ord. No. 2695, 7-27-70; Ord. No. 108-85, §§ 2, 3, 12-2-85; Ord. No. 36-95, § 3, 3-6-95)

Sec. 35-18. Composition of membership.

(a) The membership of the city's retirement system shall include and be limited to the following:

(1) All officers and employees of the city having certified civil service status, except those employees exempt under section 35-58(b) and (c); but not including those who are members or retirants of the city firefighter's pension fund;

(2) All officers and employees of the city who do not have certified civil service status, who were members December 31, 1966;

(3) All officers and employees of the city who are appointed by the mayor and/or council, except those exempt under sections 35-58(b) and (c); and

(b) In any case of doubt, the board shall decide the membership status of any officer or employee of the city.

(1957 Rev. Ords., § 2.510; Ord. No. 78-84, § 1, 5-3-84; Ord. No. 36-95, § 4, 3-6-95)

Sec. 35-19. Termination of membership.

Except as otherwise provided in this article, if any member leaves the employ of the city for any reason except death and retirement, membership in the system shall cease and credited service at that time shall be forfeited. If the member is reemployed by the city in a position covered by the system, membership shall be restored. If the reemployment occurs within a period of six years after the date of leaving the employ of the city, the member's credited service last forfeited shall be restored to the member's credit, provided the member returns to the annuity savings fund any amount withdrawn, together with regular interest from the date of withdrawal to the date of repayment. A reemployed member must notify the system of the member's intention to claim or reject forfeited credited service time within 30 days after reemployment by the city or the effective date of the ordinance from which this section is derived, whichever is later. Upon death or retirement, membership in the system shall cease and credited service shall be used in the calculation of final benefits.

Sec. 35-20. Credited service.

The service rendered by a member shall be credited to the member by the board in accordance with such rules and regulations as the board shall from time to time adopt consistent with the provisions of this article. In no case shall less than ten days of service rendered in any calendar month by a member be credited as a month of service other than as provided in section 35-21, nor shall less than ten months of service rendered by the member in any calendar year be credited as a year of service, other than as provided in section 35-21, nor shall more than one year of service be credited any member for all service rendered by the member in any calendar year.

Sec. 35-21. Military service credit.

(a) If any officer or employee, who while employed by the city, entered or enters any armed service of the United States for active duty, active duty for training or inactive duty for training, the member shall have such service credited as city service, provided that:

(1) The employee is reemployed by the city within one year from and after the date of termination of such armed service actually required;

(2) The employee returns to the annuity savings fund the amount, if any, withdrawn therefrom at the time of entry or while in such armed service, together with regular interest from the date of withdrawal to the date of repayment; and

(3) In no case shall more than five years of city service be credited any member for all such armed service rendered, unless the employee is unable to obtain a release from military service.

(b) In case of doubt as to the period to be so credited a member the board shall have final power to determine such period consistent with applicable federal statutes relating to military obligations. During the period of such armed service and until reemployment by the city, the member's contributions to the retirement system shall be suspended and any balance standing to the member's credit in the annuity savings fund shall be accumulated at regular interest.

(c) Notwithstanding any provision to the contrary, military service credit shall be made in accordance with the requirements of this section and shall otherwise comply with Section 414(u) of the Internal Revenue Code and regulations pertaining thereto.

(1957 Rev. Ords., § 2.513; Ord. No. 34-91, § 2, 4-8-91; Ord. No. 5-05, § 2, 1-10-05)

Sec. 35-22. Member's service accounts.

The board shall credit each member's service account with the number of years and months of service to which he is entitled.

Sec. 35-23. Voluntary retirement.

(a) Any member may retire upon written application filed with the board setting forth at what time, not less than 30 days nor more than 90 days subsequent to the execution and filing thereof, the member desires to be retired; provided that the member has satisfied the applicable age and service requirements set forth as follows:

(1) If a general or general management member, upon attainment of age 60 years with five or more years of credited service or attainment of age 55 years with 30 or more years of credited service.

(2) If a police officer member, upon attainment of age 60 years with 15 or more years of credited service; or upon attainment of age 50 years with 25 or more years of credited service.

(b) Upon retirement, the member shall receive a retirement allowance as provided in section 35-25 if a general member, or as provided in section 35-26 if a police officer member.

(1957 Rev. Ords., § 2.515; Ord. No. 2491, 8-7-67; Ord. No. 2791, 12-6-71; Ord. No. 124-81, § 2, 12-28-81; Ord. No. 64-86, § 3, 6-30-86; Ord. No. 110-89, § 4, 10-16-89)

Sec. 35-23.1. Early retirement; reduction of benefit.

Any member or former member on deferred status as defined in section 35-30 may retire prior to voluntary retirement as described in section 35-23 with an actuarially reduced benefit provided that the member has completed 20 or more years of credited service. The actuarial reduction shall be based on the interest and mortality assumptions used to calculate optional forms of benefits and shall be computed such that the actuarial present value of the reduced benefit is equivalent to the actuarial present value had the member terminated employment and elected to receive a deferred benefit commencing at his earliest voluntary retirement age. For the purposes of this section, earliest voluntary retirement age shall mean the earliest age at which the member could have retired with unreduced benefits had the member remained in service.

Sec. 35-24. Mandatory retirement, police officer members.

(a) Any police officer member shall be separated from the employ of the city the first day of the calendar month next following the month in which the member attains age 60 years. This subsection shall be subject to subsection (b) of this section.

(b) Any police officer member may continue in the employ of the city, after attainment of the age for retirement as provided in subsection (a) of this section, for periods not to extend beyond attainment of age 65 years; provided that such continuance in the employ of the city is:

(c) Upon separation from the employ of the city as provided in this section, a police officer member who has 15 or more years of credited service shall be retired and shall receive a retirement allowance as provided in section 35-26.

(1957 Rev. Ords., § 2.516; Ord. No. 47-80, § 1, 6-9-80; Ord. No. 64-86, § 4, 6-30-86; Ord. No. 96-87, § 3, 11-16-87; Ord. No. 36-95, § 5, 3-6-95)

Sec. 35-25. Retirement allowance--General member.

(a) Upon a general member's retirement, the member shall receive a straight life retirement allowance and shall have the right to elect to receive a retirement allowance under an option provided in section 35-31 in lieu of a straight life retirement allowance. The straight life retirement allowance shall consist of the benefits provided as follows:

(1) An annuity which shall be the actuarial equivalent of the accumulated contributions standing to the member's credit in the annuity savings fund at the time of retirement; and

(2) A pension which when added to the member's annuity will provide a retirement allowance equal to 1.8 percent of his final average pay multiplied by the number of years, and fraction of a year, of his credited service.

(b) Benefits provided under this section shall not exceed the limits set forth in Internal Revenue Code section 415 and rulings pertaining thereto.

(1957 Rev. Ords., § 2.517A; Ord. No. 2491, 8-7-67; Ord. No. 123-78, § 1, 12-26-78; Ord. No. 110-89, § 5, 10-16-89; Ord. No. 110-90, § 2, 12-3-90; Ord. No. 88-91, § 2, 11-25-91)

Sec. 35-26. Same--Police officer member.

Upon a police officer member's retirement, as provided in this article, the member shall receive a straight life retirement allowance and shall have the right to elect to receive a retirement allowance under an option provided in section 35-31 in lieu of a straight life retirement allowance. The straight life retirement allowance shall consist of the benefits provided as follows:

(1) An annuity which shall be the actuarial equivalent of the accumulated contributions standing to the member's credit in the annuity savings fund at the time of the retirement; and

(2) A pension which when added to the member's annuity will provide a retirement allowance equal to the sum of 2.5 percent of the member's final average pay multiplied by the number of years, and fraction of a year, of the member's credited service not to exceed 25 years, plus 1.5 percent of the member's final average pay multiplied by the number of years, and fraction of a year, of the member's credited service which is in excess of 25 years.

Benefits provided under this section shall not exceed the limits set forth in Internal Revenue Code section 415 and rulings pertaining thereto.

(1957 Rev. Ords., § 2.517B; Ord. No. 2491, 8-7-67; Ord. No. 110-89, § 6, 10-16-89; Ord. No. 110-90, § 3, 12-3-90; Ord. No. 88-91, § 3, 11-25-91; Ord. No. 83-93, § 2, 11-22-93)

Sec. 35-27. Terminal payment.

If a retirant dies before he has received in payment of his straight life retirement allowance an aggregate amount equal to his accumulated contributions standing to his credit in the annuity savings fund at the time of his retirement, the difference between his accumulated contributions and the aggregate amount of straight life retirement allowance payments received by him shall be paid to such person as he shall have nominated by written designation duly executed and filed with the board. If there is no such designated person surviving the retirant, such difference, if any, shall be paid to his legal representative. No benefits shall be paid under this section on account of the death of a retirant who elected option A, B or C provided in section 35-31.

Sec. 35-28. Minimum retirement allowance.

In no case shall the straight life retirement allowance payable to any member whose credited service includes service rendered prior to July 1, 1967, be less than the sum of:

(1) An annuity which is the actuarial equivalent of his accumulated contributions standing to his credit in the annuity savings fund at the time of his retirement; and

(2) A pension equal to the sum of $100.00 per year; plus 1/135 of his final average pay multiplied by the number of years, and fraction of a year, of his credited service rendered after December 31, 1950; plus 2/135 of his final average pay multiplied by the number of years, and fraction of a year, of his credited service rendered prior January 1, 1951. Such pension shall not exceed 50 percent of his final average pay.

Sec. 35-29. Mobility in city employment.

If a member has credited service in force for service rendered as a general member and for service rendered as a police officer member, the retirement allowance shall be computed upon final average pay at the time of retirement, according to section 35-25 for general member credited service, and according to section 35-26 for police officer member credited service; provided that the portion of retirement allowance based upon general member credited service shall not become payable prior to attainment of age and service requirements outlined in section 35-23 or unless the member retired under section 35-32 or section 35-35.

Sec. 35-30. Deferred retirement allowance.

(a) If a general member with five or more years of credited service leaves the employ of the city before satisfying the service requirements for retirement for any reason except retirement or death, the member shall be entitled to a retirement allowance provided in section 35-25 according to the applicable section in force at the time the member left city employment. The retirement allowance shall begin the first day of the calendar month next following the date the application for retirement is filed with the board on or after attainment of age 60 years. If accumulated contributions are withdrawn from the annuity savings fund, the right to a deferred retirement allowance shall be forfeited. During the period of absence from the employ of the city before the retirement allowance begins, the accumulated contributions shall be credited with regular interest.

(b) If a police officer member with 15 or more years of credited service leaves the employ of the city before satisfying the service requirements for retirement for any reason except retirement or death, the member shall be entitled to a retirement allowance provided in section 35-26 according to the applicable section in force at the time the member left city employment. The retirement allowance shall begin the first day of the calendar month next following the date the application for retirement is filed with the board on or after attainment of age 60 years. If accumulated contributions are withdrawn from the annuity savings fund, the right to a deferred retirement allowance shall be forfeited. During the period of absence from the employ of the city before the retirement allowance begins, the accumulated contributions shall be credited with regular interest.

(1957 Rev. Ords., § 2.518; Ord. No. 112-80, § 1, 11-24-80; Ord. No. 124-81, § 3, 12-28-81; Ord. No. 64-86, § 6, 6-30-86; Ord. No. 110-89, § 7, 10-16-89)

Sec. 35-31. Retirement allowance options.

(a) Prior to the effective date of retirement, but not thereafter, a member may elect to receive a retirement allowance as a straight life retirement allowance payable for life, or may elect to receive the actuarial equivalent of the straight life retirement allowance in a reduced retirement allowance, and nominate a beneficiary in accordance with the provisions of option A, B, C, D or E set forth as follows. If a member does not elect an option prior to the effective date of retirement, the retirement allowance shall be paid as a straight life retirement allowance.

(1) Option A; allowance for ten years certain and life thereafter. Under option A, a retirant shall receive a reduced retirement allowance payable for the retirant's life with the provisions that, if deceased before receiving 120 monthly retirement allowance payments, the payments shall be continued for the remainder of the 120 months to such person as the retirant shall have nominated by written designation duly executed and filed with the board. If no such designated beneficiary survives to receive such remaining monthly retirement allowance payments, such payments as they become due shall be paid to the estate of the last survivor of the retirant or such survivor's designated beneficiaries.

(2) Option B; joint and survivor allowance. Under option B, a retirant shall receive a reduced retirement allowance payable for life with the provision that upon death the reduced retirement allowance shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement.

(3) Option C; modified joint and survivor allowance. Under option C, a retirant shall receive a reduced retirement allowance payable for life with the provision that upon death one-half of the reduced retirement allowance shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement.

(4) Option D; joint and survivor pop-up allowance. Under option D a retirant shall receive a reduced retirement allowance with the provision that upon death the reduced retirement allowance shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement. If the nominated beneficiary dies first, the retirant shall, upon the death of the nominated beneficiary, begin to receive an allowance equal to the straight life allowance which would have been payable had no option been elected.

(5) Option E; modified joint and survivor pop-up allowance. Under option E, a retirant shall receive a reduced retirement allowance with the provision that upon death one half of the reduced retirement allowance shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement. If the nominated beneficiary dies first, the retirant shall, upon the death of the nominated beneficiary, begin to receive an allowance equal to the straight life allowance which would have been payable had no options been elected.

(b) If a retirant who elected option B, C, D or E provided in subsection (a) of this section and the retirant's beneficiary both die before they have received, in retirement allowances, an aggregate amount equal to the retirant's accumulated contributions standing to the retirant's credit in the annuity savings fund at the time of retirement, the difference between the accumulated contributions and the aggregate amount of retirement allowance payments received by them shall be paid to such person as the retirant shall have nominated by written designation duly executed and filed with the board. If there be no such designated persons surviving the retirant, such difference, if any, shall remain in the retirement reserve fund.

(c) Notwithstanding any provision to the contrary, the distribution of a member's benefit shall be made in accordance with the following requirements and shall otherwise comply with Internal Revenue Code section 401(a)(9) and regulations pertaining thereto:

(1) A member's benefits shall be distributed to him not later than April 1 of the calendar year following the later of (i) the calendar year in which the member attains age 70 1/2, or (ii) the calendar year in which the member retires.

(2) Distributions to a member and his beneficiaries shall only be made in accordance with the incidental death benefit requirements of Internal Revenue Code section 401(a)(9)(G) and rulings pertaining thereto.

(1957 Rev. Ords., § 2.519; Ord. No. 2491, 8-7-67; Ord. No. 96-87, § 4, 11-16-87; Ord. No. 110-90, § 4, 12-3-90)

Sec. 35-32. Duty incurred disability.

Upon the application of a member or his department head, a member who becomes totally and permanently disabled for duty in the employ of the city, by reason of a personal injury or disease which the board finds to have occurred solely and exclusively as the natural and proximate result of causes arising out of and in the course of his employment by the city, may be retired by the board; provided that:

(1) Any condition of impairment of health which the board finds to have been caused by hypertension, heart disease, or respiratory disease resulting in permanent total or partial disability to a police officer member who successfully passed a physical examination on entering the employ of the city, which examination failed to have any evidence of such condition, shall be presumed to have occurred as the natural and proximate result of the performance of his duty as a police officer in the employ of the city;

(2) After a medical examination of the member, made by or under the direction of the medical director, the medical director reports in writing to the board that the member is mentally or physically totally disabled for duty in the employ of the city and that his disability will probably be permanent; and

Sec. 35-33. Duty disability allowance--Retirement after voluntary retirement age.

A member who retires after his voluntary retirement age, on account of disability as provided in section 35-32, shall receive the applicable disability retirement allowance provided as follows. Upon his retirement he shall have the right to elect to receive his retirement allowance under an option provided in section 35-31 in lieu of a straight life retirement allowance:

(1) A general member's straight life disability retirement allowance shall be computed according to section 35-25. His straight life retirement allowance shall not be less than 12.5 percent of his final average pay, and shall be subject to section 35-39.

(2) A police officer member's straight life disability retirement allowance shall be computed according to section 35-26. His straight life retirement allowance shall not be less than 20 percent of his final average pay, and shall be subject to section 35-39.

Sec. 35-34. Same--Retirement before voluntary retirement age.

A member who retires before his voluntary retirement age, on account of disability as provided in section 35-32, shall receive the applicable disability retirement allowance provided as follows. In computing his retirement allowance the credited service used shall be the sum of:

(2) The number of years, and fraction of a year, in the period from the date of his retirement to the date he would attain his voluntary retirement age.

His disability retirement allowance shall begin as of the date of his disability, but not more than six months before the date his application for disability retirement is filed with the board, nor prior to the date his name last appeared on a city payroll with pay. Upon his retirement he shall have the right to elect to receive his retirement allowance under an option provided in section 35-31 in lieu of a straight life retirement allowance.

Sec. 35-35. Non-duty-incurred disability.

(2) Becomes totally and permanently disabled for duty in the employ of the city as a result of causes not occurring in the course of his actual performance of duty in the employ of the city;

may be retired by the board; provided, that after a medical examination of the member, made by or under the direction of the medical director, the medical director reports in writing to the board that:

(1) The member is mentally or physically totally disabled for duty in the employ of the city; and

Sec. 35-36. Non-duty-disability retirement allowance.

A member who retires on account of disability as provided in section 35-35 shall receive a disability retirement allowance computed according to section 35-25 if he is a general member, or according to section 35-26 if he is a police officer member. His retirement allowance shall be as of the date of his disability, but not more than six months before the date his application for disability retirement is filed with the board, nor prior to the date his name last appeared on a city payroll with pay. Upon his retirement he shall have the right to elect to receive his retirement allowance under an option provided in section 35-31 in lieu of a straight life retirement allowance. His disability retirement allowance shall be subject to sections 35-37, 35-38 and 35-39.

Sec. 35-37. Adjustment of disability allowance.

If a disability retirant who has not attained his voluntary retirement age is or becomes engaged in a gainful occupation, business or employment, the amount of his disability retirement allowance shall not exceed the difference between his final salary and the sum of his earnings or other remuneration from such occupation, business or employment. If his earnings are later changed his disability retirement allowance shall be correspondingly adjusted.

Sec. 35-38. Reexamination of disability retirants.

(a) The board may require a disability retirant who has not attained his voluntary retirement age to undergo a medical examination to be made by or under the direction of the medical director at least once each year during the first five years following his retirement and at least once in each three-year period thereafter. Should the disability retirant refuse to submit to such medical examination in any such period, his disability retirement allowance may be discontinued by the board until his withdrawal of such refusal; and should such refusal continue for one year, his disability retirement allowance may be revoked by the board. If upon such medical examination of such retirant the medical director reports to the board that the retirant is physically able and capable of resuming employment with the city, and his report is concurred in by the board, the retirant shall be returned to the employ of the city and his disability retirement allowance shall be terminated. In returning the retirant to city employment, the city shall be allowed reasonable latitude in placing him in a suitable position commensurate to his type of work and compensation at the time of his retirement.

(b) A disability retirant who has been or shall be returned to city employment shall again become a member of the retirement system. His credited service in force at the time of his disability retirement shall be restored to full force and effect. He shall be given service credit for the period he was in receipt of a disability retirement allowance provided in section 35-34. He shall not be given service credit for the period he was in receipt of a disability retirement allowance provided in section 35-36.

Sec. 35-39. Workers' compensation offset.

(a) During the workers' compensation period of a retirant or beneficiary, his monthly retirement allowance payable by the retirement system shall be reduced by the amount of his workers' compensation converted to a monthly basis.

(b) If a person becomes entitled to a retirement allowance payable by the retirement system as the result of an accident or injury caused by the act of a third party, the city shall be subrogated to the rights of the person against such third party to the extent of the benefits which the city pays or becomes liable to pay.

Sec. 35-40. Service-connected death benefits.

(a) If a member dies as the result of a personal injury or disease arising solely and exclusively out of and in the course of his employment by the city, and the board finds that his death, injury or disease resulting in death is the result of his actual performance of duty in the employ of the city, the applicable benefits provided in this subsection shall be paid, subject to the condition that workers' compensation is granted on account of the member's death.

(1) The member's accumulated contributions standing to his credit in the annuity savings fund at the time of death shall be paid in accordance with section 35-42.

(2) A pension of one-third of the deceased member's final average pay shall be paid the spouse. The spouse's pension:

(3) If, in addition to a spouse who is entitled to a pension payable from the pension fund, the deceased member leaves an eligible child or eligible handicapped child, each such child shall receive a pension of an equal share of one-sixth of the member's final average pay. A child's pension shall terminate upon the attainment of age 18 years, or adoption, marriage or death. A handicapped child's pension shall terminate upon adoption, marriage, full recovery from handicap or death. Upon termination of a child's or handicapped child's pension, the pensions payable to the member's remaining eligible children, if any, shall be adjusted to an equal share of one-sixth of the member's final average pay; provided, however, the minimum benefit for this subsection shall be $200.00 per month for each eligible child. Any child's or handicapped child's pension shall be subject to section 35-39.

(4) If there is no spouse surviving the deceased member, or if the spouse dies and an eligible child or eligible handicapped child survives, such child shall each receive a pension of one-fourth of the member's final average pay. If there are more than two such surviving children, each such child shall receive a pension of an equal share of one-half of the member's final average pay. Upon termination of a child's or handicapped child's pension as provided in subsection 35-40(a)(3) of this section, the pensions payable to the member's remaining eligible children, if any, shall be adjusted to an equal share of one-half of the member's final average pay; provided that any such child's pension shall not exceed one-fourth of the member's final average pay; provided, however, the minimum benefit for this subsection shall be $200.00 per month for each eligible child. Any child's or handicapped child's pension shall be subject to section 35-39.

(5) If the deceased member leaves neither a spouse nor children eligible to receive pensions under this section, a father and mother, or either of them, whom the board finds to be dependent upon the member for financial support, shall each receive a pension of one-sixth of the member's final average pay. A parent's pension:

(b) Notwithstanding any provision in the system to the contrary, distributions upon the death of a member shall be made in accordance with the following requirements and shall otherwise comply with Internal Revenue section 401(a)(9) and the rulings pertaining thereto. If it is determined that the distribution of a member's interest has begun and the member dies before the entire interest has been distributed to the member, the remaining portion of such interest shall be distributed at least as rapidly as under the method of distribution selected by the member at retirement. If a member dies before beginning to receive any distributions of the interest under the system, then any death benefits shall be distributed to the beneficiaries by December 31 of the calendar year in which the fifth anniversary of the date of death occurs. However, such five-year distribution requirement shall not apply to any portion of the deceased member's interest which is payable to or for a designated beneficiary. In such event, such portion may be distributed over the life of such designated beneficiary (or over a period not extending beyond the life expectancy of such beneficiary), provided such distributions begin not later than December 1 of the calendar year immediately following the calendar year in which the member died.

(c) Any death benefit payable under this section shall be compared with the death benefits payable under section 35-41, and the higher death benefit shall be paid.

(1957 Rev. Ords., § 2.528; Ord. No. 49-80, § 1, 6-9-80; Ord. No. 108-85, §§ 5, 6, 12-2-85; Ord. No. 110-89, § 8, 10-16-89; Ord. No. 110-90, § 5, 12-3-90; Ord. No. 104-92, § 1, 12-7-92)

Sec. 35-41. Natural death pensions.

(a) Any member who has ten or more years of credited service may at any time prior to the effective date of his retirement, but not thereafter, elect option B provided in section 35-31 in the same manner as if he were then retiring from city employment, and nominate a beneficiary whom the board finds to be dependent upon the member for financial support. Prior to the effective date of the member's retirement, the member may revoke his election of option B and nomination of beneficiary and he may again elect the option B and nominate a beneficiary as provided in this subsection. His election of option B and nomination of beneficiary shall be automatically revoked upon the marriage or death of the beneficiary prior to the member's retirement. Upon the death of a member who has an option B election in force, the beneficiary shall immediately receive a retirement allowance computed according to the applicable section 35-25 or 35-26 in the same manner in all respects as if the member had retired the day preceding the date of his death, notwithstanding that he might not have satisfied the applicable age and service requirements for retirement provided in section 35-23. The retirement allowance payable to the beneficiary shall not be less than $360.00 per year and shall be subject to section 35-39. If a member has an option B election in force at the time of his retirement, his election of option B and nomination of beneficiary shall thereafter continue in force; provided, however that prior to the effective date of the member's retirement, he shall have the right to elect to receive his retirement allowance as a straight life retirement allowance or under another option provided in section 35-31. No retirement allowance shall be paid under this subsection on account of the death of a member if any benefits are or will become payable under section 35-40 on account of their death.

(b) If a member has ten or more years of credited service and does not have an option B election provided in subsection (a) of this section in force, and

(3) The spouse shall immediately receive a retirement allowance computed according to the applicable section 35-25 or 35-26 in the same manner in all respects as if:

a. The member had retired the day preceding the date of his death, notwith standing that he might not have satisfied the applicable age and service requirements for retirement provided in section 35-23,

The retirement allowance payable to the spouse shall not be less than $360.00 per year and shall be subject to section 35-39.

(4) If the deceased member does not leave a spouse eligible to receive a retirement allowance provided in this subsection, his accumulated contributions standing to his credit in the annuity savings fund at the time of his death shall be paid in accordance with section 35-42(b).

(5) In addition to the retirement allowance, if any, payable to the deceased member's spouse, their eligible children or eligible handicapped child shall each receive a pension of $200.00 per month, and shall be subject to section 35-39. A child's pension shall terminate upon attainment of age 18 years, adoption, marriage or death. A handicapped child's pension shall terminate upon adoption, marriage, full recovery from handicap or death.

No benefits shall be paid under this subsection on account of the death of a member if any benefits are or will become payable under section 35-40 on account of the member's death.

(c) Any benefits paid under this section shall comply with the distribution rules in subsection 35-40(b) of this section.

(1957 Rev. Ords., § 2.529; Ord. No. 49-80, § 2, 6-9-80; Ord. No. 110-89, § 9, 10-16-89; Ord. No. 110-90, § 6, 12-3-90; Ord. No. 104-92, § 2, 12-7-92)

Sec. 35-42. Refund of accumulated contributions.

(a) If a member ceases to be employed by the city, for any reason except his retirement or death, before he has satisfied the age and service requirements for retirement provided in section 35-23, he shall be paid his accumulated contributions standing to his credit in the annuity savings fund upon his written request filed with the board.

(b) Should a member die and no retirement allowance or pension becomes or will become payable by the retirement system on account of his death, except as provided in section 35-40, his accumulated contributions standing to his credit in the annuity savings fund at the time of his death shall be paid to such person as he shall have nominated by written designation duly executed and filed with the board. If there is no such designated person surviving the member, his accumulated contributions shall be paid to his legal representative.

(c) If a member dies without heirs, and without having nominated a beneficiary as provided in subsection (b) of this section, his accumulated contributions standing to his credit in the annuity savings fund at the time of his death may be used to pay his burial expenses, not to exceed a reasonable sum to be determined by the board; provided that he leaves no other estate sufficient for such purpose.

(d) Payments of refunds of accumulated contributions, as provided in this section, may be paid in a single sum or in installments according to such rules and regulations as the board may from time to time adopt.

(e) Notwithstanding any provisions of the plan to the contrary that would otherwise limit a distributee's election under this rule, 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 paid directly to an eligible retirement plan specified by the distributee in a direct rollover. The definitions in this subsection apply throughout this rule.

(1) Direct rollover means a payment by the plan to the eligible retirement plan specified by the distributee.

(2) Distributee 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 Section 414(p) of the IRS code, are distributees with regard to the interest of the spouse or former spouse.

e. With respect to any distribution made after December 31, 2001, an annuity contract described in Section 403(b) of the code or an eligible plan described under Section 457(b) of the code, which is maintained by a state, political subdivision of a state, or 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;

that accepts a distributee's eligible rollover distribution. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse.

(4) Eligible rollover distribution means 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 the following:

a. 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 ten years or more.

b. Any distribution to the extent such distribution is required under Section 401(a)(9) of the code.

c. With respect to any distribution made prior to January 1, 2002, the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities). With respect to any distribution made after December 31, 2001, a portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions that are not included in gross income. However, such portion may be transferred only 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 Section 401(a) or 403(a) of the code that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includable in gross income and the portion of such distribution which is not so includable.

Sec. 35-43. Annuity savings fund.

(a) The annuity savings fund shall be the fund in which shall be accumulated, at regular interest, the contributions deducted from the compensations of members and from which shall be made refunds and transfers of accumulated contributions as provided in this plan.

(b) The contribution of a general member shall be five percent of the employee's compensation; and the contribution of a police officer member shall be six percent of the employee's compensation. Effective March 23, 1998, the contribution of a general member shall be four percent of the employee's compensation. Effective January 11, 1999, the contribution of a general member shall be three percent of the employee's compensation. Effective December 18, 1995, the contribution of a police officer member shall be eight percent of the employee's compensation.

(c) The officer responsible for making the payroll shall cause the contributions provided in subsection (b) of this section to be deducted from the compensation of each member on each and every payroll, for each and every payroll period, so long as he remains a member in the employ of the city. The members' contributions provided for in this section shall be made notwithstanding that the minimum compensation provided by law for any member shall be changed thereby. Every member shall be deemed to consent and agree to the deductions made and provided for in this section, and payment of his compensation less such deductions shall be a full and complete discharge and acquittance of all claims and demands whatsoever for the services rendered by him during the period covered by such payment, except as to benefits provided by this article. The contributions when deducted from the compensation of a member shall be credited to his individual account in the annuity savings fund.

(d) Upon the retirement of a member, his accumulated contributions shall be transferred from the annuity savings fund to the retirement reserve fund. At the expiration of a period of four years from and after the date a member's employment by the city terminated, any balance standing to his credit in the annuity savings fund, unclaimed by him or his legal representative shall be transferred to the income fund; provided that no retirement allowance will become payable by the retirement system on his account.

(e) In addition to the contributions deducted from the compensation of a member as provided in this section, the member shall pay into the annuity savings fund, by a single contribution within six months after the date of reemployment, the amount required to be repaid by section 35-19. In no case shall any member be given credit for service rendered prior to the date the member withdrew the accumulated contributions until the member repays to the annuity savings fund all amounts due the annuity savings fund by the member.

(f) The city shall pick up the member contribution required by subsection (b) of this section for all compensation earned after the effective date of this subsection. The contributions so picked up shall be treated as employer contributions in determining tax treatment under the United States Internal Revenue Code. The city shall pick up the member contributions from funds established and available in the salaries account, which funds would otherwise have been designated as member contributions and paid to the pension fund. Member contributions picked up by the city pursuant to this subsection shall be treated for all other purposes of this and other laws of the city in the same manner and to the same extent as member contributions made prior to the effective date of this subsection.

Member contributions to the pension fund shall be paid by the city on behalf of all members. Payment of the member's contribution picked up by the city shall be made by reducing the amount of the compensation payable to such members and making payment of such amount directly to the pension fund. Contributions, although designated as member contributions, are being paid by the city in lieu of contributions by the members. Members do not have the option of choosing to receive the contributed amounts directly instead of having them paid by the city to the pension fund.

The effective date of this subsection shall be the first day of the first pay period after the city has received notification of approval from the Internal Revenue Service that, pursuant to Section 414(h) of the United States Internal Revenue Code, the member contributions so picked up shall not be included in gross income for tax purposes until such time as they are distributed by refund or benefit payment, but the effective date shall not be prior to December 15, 2003.

(1957 Rev. Ords., § 2.531; Ord. No. 12-74, § 2, 4-8-74; Ord. No. 123-78, § 2, 12-26-78; Ord. No. 112-80, § 1, 11-24-80; Ord. No. 125-81, § 1, 12-28-81; Ord. No. 108-85, § 7, 12-2-85; Ord. No. 58-86, § 1, 6-9-86; Ord. No. 64-86, § 7, 6-30-86; Ord. No. 18-89, § 1, 2-27-89; Ord. No. 110-90, § 7, 12-3-90; Ord. No. 88-91, § 4, 11-25-91; Ord. No. 66-94, § 1, 7-25-94; Ord. No. 22-98, § 1, 2-17-98; Ord. No. 54-02, § 1, 7-8-02; Ord. No. 05-04, § 1, 1-12-04)

Sec. 35-44. Retirement reserve fund.

The retirement reserve fund shall be the fund from which shall be paid all annuities, pensions and retirement allowances payable as provided in this article. Upon the return of a disability retirant to the employ of the city, his annuity reserve, computed as of the date of his return, shall be transferred from the retirement reserve fund to the annuity savings fund and shall be credited to his individual account therein, and his pension reserve shall be transferred from the retirement reserve fund to the employer reserve fund.

Sec. 35-45. Employer reserve fund.

(a) The employer reserve fund shall be the fund to which shall be credited contributions made by the city to the retirement system, for the general division and the police division and from which shall be made transfers as provided in this section. Upon the basis of such mortality and other tables of experience, and regular interest, as the board shall from time to time adopt, the actuary shall annually compute the pension reserves for:

(2) Pensions to be paid on account of service rendered and to be rendered by members.

The city's annual contributions required to finance the pension reserves shall be appropriated by the council and shall be subject to section 35-47. The contributions shall be determined, for the general division and the police division, according to the following:

(1) The city's appropriation for members' current service shall be a percent of their annual compensations which will produce amounts which if paid annually by the city during their future service will be sufficient to accumulate the pension reserves at the time of their retirements for the pensions to be paid them based upon their future service.

(2) The city's appropriation for members' accrued service shall be an amount which if paid annually by the city over a period of years, to be determined by the council, will amortize at regular interest the unfunded pension reserves for the accrued portions of the pensions to be paid them.

(3) The city's appropriations for retirement allowances being paid retirants and beneficiaries shall be an amount which if paid annually by the city over a period of years, to be determined by the council, will amortize at regular interest the unfunded annuity and pension reserves for the accrued portions of the pensions to be paid them.

(b) Upon the retirement of a member, the pension reserve for his pension shall be transferred from the employer reserve fund to the retirement reserve fund. If a pension provided in section 35-40 becomes or is to become payable, the pension reserve for such pension shall be transferred from the employer reserve fund to the retirement reserve fund.

(c) All contributions made by the city under this system shall be deposited in the fund. However, contributions made by the city are expressly conditioned upon the initial qualification of the system under the Internal Revenue Code. Upon the city's request, a contribution which was made by mistake of fact or conditioned upon initial qualification shall be returned to the city within one year after the payment of the contribution or the denial of the qualification.

Except as otherwise provided, all assets of the system, including investment income, shall be retained for the exclusive benefit of members and their beneficiaries, shall be used to pay benefits to such persons or to pay administrative expenses to the extent not paid by the city, and shall not revert to or inure to the benefit of the city.

In no event shall the city receive any amounts from the fund upon termination of the system, except that, and notwithstanding any other provision of the system, the city shall receive such amounts, if any, as may remain after the satisfaction of all liabilities of the system and arising out of any variations between actual requirements and expected actuarial requirements.

(1957 Rev. Ords., § 2.533; Ord. No. 110-90, § 8, 12-3-90; Ord. No. 36-95, § 6, 3-6-95)

Sec. 35-46. Establishment of general division, police division.

There is hereby established a general division to cover the participation of the general members in the retirement system, and a police division to cover the participation of the police officer members. Separate accounting controls shall be maintained in the annuity savings fund, retirement reserve fund and employer reserve fund for the general division and for the police division. The maintaining of separate accounting controls for the general division and the police division shall not cause the assets of the retirement system to be segregated in the divisions.

Sec. 35-47. Limit of city's contributions.

Total contributions in each year to a retirement system subject to article II of this chapter shall be sufficient to fund the following:

(2) The actuarially determined cost of future benefits accruing to members during the year; and

(3) An amount sufficient to amortize any unfunded liability of the system over a period not to exceed 40 years on the basis of reasonable and generally accepted actuarial assumptions.

(1957 Rev. Ords., § 2.535; Ord. No. 2491, 8-7-67; Ord. No. 119-84, § 1, 8-27-84; Ord. No. 108-85, § 8, 12-2-85)

Sec. 35-48. Pensions allowed prior to 1951.

All pensions being paid by the city prior to January 1, 1951, except to retired firefighters and their beneficiaries, shall become obligations of the retirement system and shall be paid from the retirement reserve fund, subject to section 35-47.

Sec. 35-49. Administrative expenses.

The expense fund is hereby created. The board shall transfer to the expense fund such money as may be necessary to pay the administrative expenses of the retirement system from the retirement reserve fund.

Sec. 35-50. Investment of assets.

(a) The board of trustees shall be the trustees of the assets of the retirement system. The board shall have full and independent power to invest and reinvest the moneys and assets of the retirement system and to hold, purchase, sell, assign, transfer and dispose of any securities and investments of the retirement system and may select a funding agent to administer and invest the funds of the system. The selection and the appointment of the funding agent shall be made by the board which shall have the right from time to time to change the funding agent as to all or any part of the funds. The board shall have the right to determine the form and substance of each and every agreement under which the funds are to be held, provided that it shall not be inconsistent with the provisions of this chapter. A funding agent shall mean the corporate or individual trustees, insurance companies authorized to do business in the state, or combination thereof, appointed and acting from time to time pursuant to the provisions of this chapter in holding, investing and disbursing the funds of the system. Moneys of the system that are not placed with a funding agent shall be invested and reinvested in the following:

(4) Common and preferred stocks of any solvent corporation existing under the laws of the United States or any state thereof, provided that such investments shall not exceed 50 percent of the total assets of the retirement system and that such common and preferred stocks are registered on a national securities exchange regulated under the Securities Exchange Act of 1934, as amended.

(5) Obligations consisting of notes, bonds and debentures which are direct obligations of a solvent corporation existing under the laws of the United States or any state thereof, provided that such investments shall be rated in the four highest classifications established by at least two standard rating services.

The board may engage in contract for investment counsel and advice when they deem it necessary.

(b) There shall be kept on deposit available cash not to exceed ten percent of the total assets of the system.

(c) The description of the various funds of the retirement system shall be interpreted to refer to the accounting records of the system and not to the segregation of its assets in the funds of the system. All assets of the system shall be held for the sole purpose of meeting disbursements for annuities, pensions and other payments authorized by this article and shall be used for no other purpose.

Sec. 35-51. Method of making payments.

All payments from moneys of the retirement system shall be made according to ordinance and Charter provisions governing the disbursement of moneys from the city's general fund. No such payment shall be made unless it has been previously authorized by a specific or continuing resolution adopted by the board.

Sec. 35-52. Income fund; allowance of regular interest.

(a) The income fund shall be the fund to which shall be credited all interest, dividends, and other income from investments of the retirement system; all transfers from the annuity savings fund by reason of lack of claimant; and all other moneys received by the system, the disposition of which is not specifically provided by this article. The board may accept gifts and bequests and such shall be credited to the income fund. There shall be paid or transferred from the income fund all amounts required to credit regular interest to the annuity savings fund, retirement reserve fund and employer reserve fund. Whenever the board determines that the balance in the income fund is more than sufficient to cover the charges to the fund the board may provide for contingency reserves, or may transfer such excess or portions thereof to cover the needs of the other funds of the system.

(b) At the end of each fiscal year the board shall allow and credit regular interest on:

(1) The mean balances for the year in the retirement reserve fund and employer reserve fund; and

(2) The balance standing to each member's credit in the annuity savings fund at the beginning of each quarter of the fiscal year;

provided, however, that no interest be credited a member after he leaves city employment except as is otherwise specifically provided in this article. The amounts so allowed shall be paid from the income fund.

Sec. 35-53. Group insurance deduction.

(a) As permitted by law, in addition to retirement allowances payable under this article, the retirement system shall pay from the pension fund one-half of the premium for the retirant's and beneficiary's group health insurance or prepayment plan participated in by the city.

(b) As permitted by law, if a retirant or beneficiary is covered by a group insurance or prepayment plan participated in by the city, and is permitted to and elects to continue such coverage as a retirant, the retirant or beneficiary may authorize the board to have deducted from all retirement allowances the payments required to continue coverage under such group insurance or prepayment plan.

(c) The benefits described in this section shall apply to any retired employee or officer who is entitled to a retirement allowance and who shall have participated at least five years, immediately preceding separation from city employment in the group health insurance or prepayment plan participated in by the city.

(1957 Rev. Ords., § 2.541; Ord. No. 96-87, § 5, 11-16-87; Ord. No. 26-98, § 1, 3-2-98)

Sec. 35-54. Assignments prohibited.

All annuities, pensions, retirement allowances, the accumulated contributions of any member, or any other benefit whatsoever accrued or accruing to any member or beneficiary shall be unassignable and shall not be subject to execution, attachment, garnishment or any other process of law whatsoever, except as is specifically provided by this article.

Sec. 35-55. Correction of errors.

Should any change or error in the records result in any person receiving from the retirement system more or less than he would have been entitled to receive had the records been correct, the board shall correct such error and as far as practicable shall adjust the payment of benefit in such manner that the actuarial equivalent of the benefit to which the person was correctly entitled shall be paid.

Sec. 35-56. Redetermination of retirement allowances.

(a) The board of trustees shall provide annual post-retirement redetermination of retirement allowances. The redetermined amount shall not be less than the amount of retirement allowances otherwise payable. Any provision of this article which limits the amount of retirement allowances shall not apply to the operation of this section in redetermining the amount of retirement allowances. The application of any provision redetermining retirement allowance amounts may be restricted to retirement allowances having an effective date of payment either prior to or subsequent to a specified date. Any post-retirement redetermination of one or more retirement allowances within a system shall be prefunded and may not bring the system into noncompliance with the provisions of subsection (3) of section 35-47.

(b) Pursuant to subsection (a) of this section, the retirement allowance upon which redeterminations of retirement allowances are made shall be increased once on January 1, 1986, by one-half of one percent for each year of retirement based on the current retirement allowance for each person retiring on or before December 31, 1974, and one-half of one percent for each year of retirement based on the original retirement allowance for each person retiring after December 31, 1974.

(c) Each December 31 the board shall transfer to the retirement reserve fund an amount equal to the actuarial present value of all retirement allowance increases to be effective the next January 1. The amounts of the transfer shall be provided in the December 31 annual actuarial report. Starting January 1, 1991, on the first of the month following the 36th full month of retirement, the board shall redetermine the retirement allowances of those retirants and beneficiaries whose retirement allowances were effective 36 full months prior to the date of redetermination, and the retirement allowances shall be increased as provided in this section effective on the first of the month following the 36th full month of retirement. On January 1, 1991, and thereafter on each January 1, the board shall redetermine the retirement allowances of all retirants and beneficiaries, and the retirement allowances shall be increased as provided in this section. The retirement allowance and forecast base shall be increased by an amount equal to the current base times the pension increase percentage. The pension increase percentage shall be equal to the percentage increase, to a maximum of three percent, in the Consumer Price Index for All Urban Consumers, as computed by the United States Department of Labor, for the year ending in the month of June preceding the January 1 redetermination date.

Any transfer of funds and calculation of benefits required in this section shall be made effective as of the dates mentioned in this section, and the actual transfers and calculation of benefits may be made on a later date. Changes in amounts paid to retirants and beneficiaries shall be paid as soon as practicable after the end of the calendar year.

(1957 Rev. Ords., § 2.546; Ord. No. 2695, 7-27-70; Ord. No. 108-85, § 9, 12-2-85; Ord. No. 96-87, § 6, 11-16-87; Ord. No. 110-89, § 10, 10-16-89; Ord. No. 110-90, § 9, 12-3-90; Ord. No. 83-93, § 3, 11-22-93)

Sec. 35-57. Application of other ordinances.

No other provisions of ordinance which provide wholly or partly at the expense of the city for pensions or retirement benefits, except federal social security benefits, for employees of the city, their widows, children or other dependents, shall apply to members, retirants and beneficiaries of the retirement system, except as is specifically provided in this article.

Sec. 35-58. Adoption of department of community development employee's pension plan and trust for employees thereof.

(a) As of December 21, 1983, the city shall adopt, for the benefit of and on behalf of the current employees of the department of community development, an agency of the city, the employee's pension plan and trust previously established by such agency on January 13, 1970, as amended.

(b) Effective on January 10, 1984, continued participation in the department of community development employee's pension plan and trust will be limited to those employees who have attained 55 years of age on that date and are currently employed by the department of community development. The plan shall be funded with contributions to be made by the city in the same net percentage as that made on behalf of the general members under the city employee's retirement system together with employee contributions to be deducted from community development employee's compensation in the same percentage as that contributed by other general members of the city employee's retirement system, not to exceed five percent of the compensation paid to such employees by the city, unless increased by a two-thirds majority vote of the members of the retirement board.

The remaining members, except those mentioned in this section, along with any other current employees and any future employees, will start their years of service effective on January 10, 1984, and participate in the city employee's retirement system in the same manner and upon the same conditions as other general members of the city's employee's retirement system.

(c) All future employees of the department of community development shall be ineligible to participate under the department of community development employee's pension plan and trust.

(d) The department of community development employee's pension plan and trust shall continue to provide benefits to its participants upon death, retirement or termination of employment from the agency, until such time as all funds have been distributed from the trust or until such earlier time as authorized by the council.

(e) A copy of the employee pension plan of the department of community development is on file in the city clerk of records' office.

(Ord. No. 102-83, § 1, 12-12-83; Ord. No. 78-84, § 2, 5-3-84; Ord. No. 36-95, § 7, 3-6-95)

Sec. 35-59. Changes in employee contribution levels.

No change may be made in employee contribution levels of this system or present or future benefits of this system, by ordinance or otherwise, without an affirmative vote by both the council and the membership of this system.

Sec. 35-60. Change or modification of benefits; actuarial statement.

No benefits, present or future, may be changed or modified in any manner unless the system's actuaries have prepared an actuarial statement showing the effect of those changes on the system. No benefits, present or future, may be changed or modified if the change or modification will bring the system into noncompliance with the provisions of section 35-47 of this chapter.

Sec. 35-61. City to maintain records; information to be furnished to administrator.

The city shall maintain records with respect to each employee sufficient to determine benefits due or which may become due to the employee. The city shall furnish to the system administrator any information necessary for the administrator to make reports required under the provisions of this chapter.

Sec. 35-62. Remarriage of surviving spouse.

Surviving spouses whose pension benefits have terminated or whose future pension benefits are subject to termination because of remarriage will have their surviving spousal pension benefits reinstated as of the effective date of the ordinance from which this section derives. The reinstatement of surviving spousal benefits will not be retroactive and will not include post-retirement redetermination benefit increases granted since termination of benefits, but pension benefits will begin again based on their last calculated benefit. They will be eligible under the same regulations as other retirants for future post-retirement redetermination increases.

Sec. 35-62.1. Termination of plan.

In the event of termination of this plan, the rights of all affected participants to benefits then accrued shall thereupon become 100 percent vested and nonforfeitable to the extent then funded or the amounts credited to the employees' accounts are nonforfeitable.

DIVISION 2. BOARD OF TRUSTEES*

Sec. 35-63. Administration of system.

The authority and responsibility for the administration, management and proper operation of the retirement system and for construing and making effective the provisions of this article shall be vested in the board of trustees.

Sec. 35-64. Composition.

The board of trustees of the employee's retirement system shall be composed of seven trustees as follows:

(1) The mayor, or such person as the mayor shall designate to act on the mayor's behalf; and two members who may or may not be members of the council appointed by the mayor with advice and consent of the council, to represent the council.

(2) Three members of the retirement and pension system selected by the membership, two of whom shall be general members elected by the general division members and one of whom shall be a police member elected by the police division members. Elections shall be in accordance with section 35-65.

(3) One resident of the city who is not an official or employee of the city and whose membership on the board of trustees creates no conflict of interest. The member shall be nominated and approved by an affirmative majority vote of the trustees selected pursuant to subsections (1) and (2) of this section.

(1957 Rev. Ords., § 2.503; Ord. No. 108-85, § 13, 12-2-85; Ord. No. 36-95, § 9, 3-6-95)

Sec. 35-65. Election of trustees.

The election of the trustees provided in section 35-64(2) and (3) shall be held under such rules and regulations as the board shall from time to time adopt.

Sec. 35-66. Terms of office.

The regular term of office for trustee members appointed by the mayor shall be four years to expire on December 31 in the year of the mayoral election. The regular term of office for the trustees provided in section 35-64(2) and (3) shall be four years, one such term to expire each year.

No trustee selected under section 35-64(1) or (3), except the mayor or their designee, shall serve more than two consecutive full terms of office.

(1957 Rev. Ords., § 2.505; Ord. No. 67-94, § 1, 7-25-94; Ord. No. 36-95, § 10, 3-6-95)

Sec. 35-67. Oath of office.

Each trustee shall, within ten days after his appointment or election, take an oath of office before the city finance director for the faithful performance of his duties.

Sec. 35-68. Filling of vacancies.

(a) If a member trustee shall cease to be an officer or employee of the city, or should any appointed trustee not serving as the mayor, or the citizen trustee fail to attend scheduled meetings of the board for three consecutive meetings, unless in each case excused for cause by the remaining trustees attending such meeting, the trustee shall be considered to have resigned from board membership and the board shall by resolution declare the office vacated as of the date of adoption of such resolution. Any vacancy occurring in the office of trustee shall be filled within 90 days from and after the date the vacancy occurs, for the unexpired term, in the same manner as the office was previously filled.

(b) Except for the mayor, if a trustee is unable to attend two consecutive meetings because of a leave of absence from duties, the remaining trustee members by unanimous vote may appoint a temporary replacement eligible in accordance with Section 35-64. The appointment is effective until the term expires or the board member returns.

(1957 Rev. Ords., § 2.506; Ord. No. 34-91, § 3, 4-8-91; Ord. No. 36-95, § 11, 3-6-95)

Sec. 35-69. Compensation.

The trustees shall serve without additional compensation for their services as such.

Sec. 35-70. Meetings.

The board of trustees shall hold meetings regularly, at least quarterly, and shall designate the time and place thereof. All meetings of the board shall be public.

Sec. 35-71. Rules of procedure.

The board of trustees shall adopt its own rules of procedure for the conduct of its business.

Sec. 35-72. Manner of action.

Each trustee shall be entitled to one vote on each question coming before the board. At least four concurring votes shall be necessary for a decision by the board.

Sec. 35-73. Records of proceedings.

Sec. 35-74. Record of members.

The administrative officer shall keep such data regarding members, retirants, and beneficiaries as shall be necessary for an actuarial valuation of the assets and liabilities of the retirement system.

Sec. 35-75. Annual report.

(a) The city personnel director or their designee shall present a report to the board of trustees at the time of the annual actuarial valuation report each year showing the fiscal transactions of the system for the year ended the preceding December 31, and the last balance sheet showing the financial condition of the system by means of an actuarial valuation basis.

(b) The board of trustees shall publish an annual report containing financial statements and an actuarial valuation of the system. The report shall be filed with the retirement laws committee created by SDCL 2-6-8 and shall be available to each member of the system. The financial statements contained in the report shall be audited by an independent certified public accountant. The actuarial valuation required in the report shall include the information required under the provisions of SDCL 3-12-47(5) and shall be performed by an approved actuary as defined by SDCL 3-12-47(7).

(1957 Rev. Ords., § 2.509; Ord. No. 108-85, § 14, 12-2-85; Ord. No. 36-95, § 13, 3-6-95)

Sec. 35-76. Adoption of experience tables.

The board of trustees from time to time shall adopt such mortality and other tables of experience, and a rate of regular interest, as are necessary in the operation of the retirement system on an actuarial basis.

Sec. 35-77. Responsibility of fiduciary.

Every fiduciary shall discharge his duties solely in the interest of the participants and beneficiaries of this retirement system, for the exclusive purpose of providing benefits to participants and their beneficiaries and with the skill, care, prudence and diligence, under the circumstances then prevailing, of a prudent person familiar with such matters and acting in a similar capacity. For purposes of this section, the word "fiduciary" means any person or entity who exercises any discretionary authority control over the management of this system or its assets, any person or entity who renders investment advice to this system for a fee or other compensation, or any person or entity who has any discretionary authority or discretionary responsibility in the administration of this system.

Secs. 35-78--35-86. Reserved.

ARTICLE III. FIREFIGHTERS' PENSION FUND*

DIVISION 1. GENERALLY

Sec. 35-87. Definitions.

The following words and phrases as used in this article, unless a different meaning is plainly required by the context, shall have the following meanings:

Accumulated contributions means the sum of all amounts deducted from the compensations of a member and credited to his individual account in the pension savings fund together with regular interest thereon.

Beneficiary means any person, except a retirant, who is in receipt of a pension or other benefit payable from the pension fund.

Child means an eligible child who is an unmarried child under age 18, born to or legally adopted by the member.

Compensation means the annual rate of salary paid a firefighter by the city for service rendered by him as a firefighter in the employ of the city. The word "compensation" shall include longevity pay increases, if any, granted him.

Credited service means service credited a member to the extent provided in this article.

Eligible handicapped child means an unmarried, dependent child born to or legally adopted by the member, irrespective of age, for which the board is provided medical proof that such child is permanently unable to hold fully self-supporting gainful employment because of mental or physical disability. Whether the child is dependent shall be determined in the discretion of the board on an individual basis. Factors which may be considered in determining dependency include, but are not limited to:

(a) Whether the child is claimed as a dependent on another person's federal income tax return.

(b) Whether, and the extent to which, the child receives economic, social, or other living assistance.

The board shall decide in each individual case how often to require confirming medical proof of handicapped for continuation of benefits.

Final average compensation means the average of the annual compensations received by a member for a period of three consecutive years of credited service immediately preceding retirement. If a member has less than three years of credited service, final average compensation shall be the average of the annual compensations received for the member's total years of credited service. For any year chosen, that year's annual compensation shall include sick leave payments and vacation payments, if received in that year, but shall not include payments for mileage reimbursement, car allowance, clothing allowance and other incidental payments.

Final compensation means a member's regular annual rate of compensation at the time employment is last terminated with the city as a firefighter. In determining regular, annual rate of compensation, persons receiving workers' compensation or payments in lieu of sick leave shall be treated as if they had not received workers' compensation payments or payments in lieu of sick leave but had been paid their regular salary or wages during the period of time under consideration.

Firefighter means a full-time officer or employee of the fire department of the city. The word "firefighter" shall not include any civilian employee of the fire department, nor any person temporarily employed as a firefighter for an emergency, nor any person who is privately employed as a firefighter.

Firefighter's salary means the annual rate of compensation of a firefighter at scale 41, step 9 or equivalent step in the pay schedule.

Medical committee means a committee of two physicians, one of whom is designated by the board, and one by or on behalf of a member, retirant or beneficiary who is claiming benefits under this article. If the two physicians do not concur, the medical committee means a committee of the two physicians and one additional member selected by them.

Pension means an annual amount payable, from the pension fund, in equal monthly installments for life.

(1) All sums of money or property that are contributed by gifts, devises and bequests;

(2) All money received by the city from the state division of insurance as its proportionate share of the insurance fund collected from the various insurance companies;

Pension reserve means the present value of all payments to be made on account of any pension, or benefit in lieu thereof, computed upon the basis of such mortality and other tables of experience as the board shall from time to time adopt, and regular interest.

Regular interest means interest at such rate or rate per annum as the board shall from time to time determine.

Retirant means a member who retires with a pension payable from the pension fund.

Service means service rendered to the city by a person in the employ of the city as a firefighter.

(1) Age 55 years for a member with 20 or more years of credited service. For a member with less than 20 years of credited service at age 55 years, voluntary retirement age means the age at the time 20 years of credited service are acquired; or

(2) A member whose age and years of service, when added, equal 80 as calculated in section 35-94(2).

(1957 Rev. Ords., § 2.1102; Ord. No. 2196, 6-10-63; Ord. No. 47-77, § 1, 6-20-77; Ord. No. 108-85, § 16, 12-2-85; Ord. No. 96-87, §§ 7, 8, 11-16-87; Ord. No. 110-89, §§ 12--15, 10-16-89; Ord. No. 110-90, § 10, 12-3-90; Ord. No. 83-93, § 4, 11-22-93; Ord. No. 36-95, § 14, 3-6-95; Ord. No. 127-99, § 2, 12-13-99; Ord. No. 53-02, § 1, 7-8-02; Ord. No. 5-05, § 5, 1-10-05)

Sec. 35-88. Officers of pension fund.

(2) The director of personnel shall serve as the administrative officer to the board of trustees and shall transact all business of the retirement system except for the keeping of the accounting records which shall be delegated to the city finance director.

(3) The city finance director shall be treasurer of the pension fund and shall administer the accounting of the pension fund as well as be custodian of all the assets except those placed with a funding agent or investment counsel as provided in section 35-113.

(5) The board shall appoint an actuary who shall be the technical advisor to the board on matters regarding the operation of the pension fund who shall perform such other duties as are required in connection therewith.

(6) The board shall have power to select and employ a funding agent or engage in contract for investment counsel and advice as provided in section 35-113.

(7) The board of trustees, by resolution, may appoint an administrator and may hire additional employees as may be required to transact the business of the retirement system. The board of trustees shall require bonding of the administrator in an amount set by the board of trustees, which may be included under any city employee's blanket bond. The bond premium may be paid by the system.

(8) The administrator shall make available to any member of the system and to any beneficiary of the system a summary system description. The summary system description shall be written in a manner to be understood by the average member of the system and shall be sufficiently accurate and comprehensive to apprise participants and beneficiaries of their rights and obligations under the system. The summary system description shall include:

c. A description of the relevant provisions of any applicable collective bargaining agreement;

d. The system's requirements respecting eligibility for participation and benefits;

f. Circumstances which may result in disqualification, ineligibility or denial or loss of benefits;

g. The source of financing of the system and the identity of any organization through which benefits are provided;

h. The date of the end of the system year and whether the records of the system are kept on a calendar, policy or fiscal year basis; and

i. The procedures to be followed in presenting claims for benefits under the system and the remedies available under the system for the redress of claims which are denied in whole or in part.

(9) The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary system description, the latest annual report and any bargaining agreement, trust agreement, contract or other instrument under which the system is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies.

(10) The administrator shall annually furnish to each system member or beneficiary a statement showing, on the basis of the latest available information, the member's or beneficiary's total contributions, if any; total benefits accrued and nonforfeitable benefits, if any, which have accrued; or the earliest date on which his benefits will become nonforfeitable.

(1957 Rev. Ords., § 2.1106; Ord. No. 2002, 10-19-59; Ord. No. 2649, 11-17-69; Ord. No. 2696, 7-27-70; Ord. No. 108-85, §§ 17, 18, 12-2-85; Ord. No. 36-95, § 15, 3-6-95)

Sec. 35-89. Composition of membership.

The membership of the firefighters' pension fund shall include all firefighters in the employ of the city and all persons who become employed by the city as firefighters. In all cases of doubt, the personnel director shall decide who is a member of the pension fund within the meaning of the provisions of this article and applicable federal law.

(1957 Rev. Ords., § 2.1109; Ord. No. 34-91, § 4, 4-8-91; Ord. No. 36-95, § 16, 3-6-95)

Sec. 35-90. Termination of membership.

Except as otherwise provided in this article, if any member leaves the employ of the city for any reason except death and retirement, membership in the retirement system shall cease and credited service at that time shall be forfeited. If the member is reemployed by the city as a firefighter, membership in the system shall be restored. If the member is reemployed in any other position in the city, credited service shall not be restored. If the reemployment occurs within a period of six years after the date of leaving the employ of the city, the member's credited service last forfeited shall be restored to the member's credit, provided the member returns to the annuity savings fund any amount withdrawn, together with regular interest from the date of withdrawal to the date of repayment. A reemployed member must notify the system of the member's intention to claim or reject forfeited credited service time within 30 days after reemployment by the city or the effective date of the ordinance from which this section derives, whichever is later. Upon death or retirement, membership in the system shall cease and credited service shall be used in the calculation of final benefits.

Sec. 35-91. Credited service.

Under this article, the board shall fix and determine, by appropriate rules and regulations, how much service in any calendar year is equivalent to a year of service: Provided, that in no case shall less than ten days of service rendered by a member in any calendar month be credited as a month of service, other than as provided in section 35-92, nor shall less than 12 months of service rendered in any calendar year be credited as a year of service, nor shall more than one year of service be credited any member for all service rendered by the member in any calendar year, nor shall any service rendered to the city by a member outside the classification of firefighter be credited the member except as provided in section 35-92.

Sec. 35-92. Military service credit.

Should a firefighter, who while employed by the city, be called or enlisted in the armed service of the United States and should the person be reemployed by the city as a firefighter within one year after the date of termination of armed service, such armed service shall be credited as city service, provided the firefighter returns to the pension savings fund all amounts withdrawn therefrom at the time of entering, or while in, such armed service, together with regular interest thereon from the date of withdrawal to the date of repayment. In case of doubt as to the period to be so credited any member, the board shall have final power to determine such period. During the period of such armed service rendered to the federal government and until reemployment by the city as a firefighter, the firefighter's contributions to the pension saving fund shall be suspended and the balance standing to the firefighter's credit in the fund shall be accumulated at regular interest.

Notwithstanding any provision to the contrary, military service credit shall be made in accordance with the requirements of this section and shall otherwise comply with Section 414(u) of the Internal Revenue Code and regulations pertaining thereto.

(1957 Rev. Ords., § 2.1112; Ord. No. 34-91, § 6, 4-8-91; Ord. No. 5-05, § 6, 1-10-05)

Sec. 35-93. Members' service accounts.

Under this article the board shall credit each member's service account with the number of years and months of prior service and membership service to which he may be entitled.

Sec. 35-94. Voluntary retirement.

(a) Any member may retire upon written application filed with the board setting forth at what time, not less than 30 days nor more than 90 days subsequent to the execution and filing thereof, the member desires to be retired; provided that one of the following requirements for applicable age and service has been satisfied:

(1) The member has attained age 55 years and has 20 or more years of credited service; or

(2) The member has age and years of service which, when added, equal 80 or more. Minimum age of retirement is 50 years of age. For purposes of this subsection, age at time of hire shall mean age in years and months, rounded to the nearest whole month, subtracted from the beginning service date, rounded to the nearest whole month. When calculating eligibility, subtract from 80 the age of the member at hire date. Divide this number in half. This results in the number of years and months of service required in order to be eligible to retire. Add the required years and months of service for eligibility to the beginning service date. The beginning service date is the member's hire date plus service forfeited and repaid according to section 35-90 and subsection 35-106(e).

(b) Upon retirement, the member shall receive the superannuation pension provided in section 35-96.

Sec. 35-94.1. Early retirement; reduction of benefit.

Any member or former member of the firefighters' pension fund on deferred status as defined in section 35-97 may retire prior to voluntary retirement as described in section 35-96 with an actuarially reduced benefit provided that the member has completed 20 or more years of credited service. The actuarial reduction shall be based on the interest and mortality assumptions used to calculate optional forms of benefits and shall be computed such that the actuarial present value of the reduced benefit is equivalent to the actuarial present value had the member terminated employment and elected to receive a deferred benefit commencing at his earliest voluntary retirement age. For the purposes of this section, earliest voluntary retirement age shall mean the earliest age at which the member could have retired with unreduced benefits had the member remained in service.

Sec. 35-95. Normal retirement.

Any member of the firefighters' pension fund who has attained or attains age 60 years shall be retired by the board on the first day of the calendar month next following the month in which the member attains age 60 years; provided that, upon the written request of the member, approved by the department head, the board may continue the member in service for periods not to extend beyond age 70 years. Upon retirement, the member shall receive a superannuation pension provided for in section 35-96, if the member has 15 or more years of credited service.

Sec. 35-96. Superannuation pension generally.

(a) Members of the firefighters' pension fund who retire at or after the voluntary retirement age shall receive a superannuation pension equal to 2 1/2 percent of their final average compensation multiplied by the first 25 years of credited service, plus 1 1/2 percent of the member's final average compensation multiplied by the number of years, and fraction of a year, of the credited service in excess of 25 years. Upon retirement the member shall have the right to elect an option provided for in section 35-98.

(b) Benefits provided under this section shall not exceed the limits set forth in Internal Revenue Code section 415 and rulings pertaining thereto.

(1957 Rev. Ords., § 2.1116; Ord. No. 2792, 12-6-71; Ord. No. 110-89, § 18, 10-16-89; Ord. No. 110-90, § 11, 12-3-90; Ord. No. 88-91, § 6, 11-25-91)

Sec. 35-97. Deferred superannuation retirement pension.

Should any member of the firefighters' pension fund who has 15 or more years of credited service cease to be employed by the city as a firefighter prior to becoming eligible for voluntary retirement benefits, for any reason except to become a retirant or death, that person shall remain a member during the period of absence from city service for the exclusive purpose only of receiving a superannuation retirement pension provided for in section 35-96. The pension shall begin on the first day of the calendar month next following the month in which the member files an application for pension with the board on or after attainment of age 60 years. If the member withdraws all or part of the accumulated contributions from the pension savings fund, that person shall thereupon cease to be a member and shall forfeit all rights in and to a deferred pension provided for in this section.

Sec. 35-98. Retirement pension options.

(a) Prior to the effective date of retirement, but not thereafter, a member may elect to receive a firefighter's pension as an option 1 pension payable for life or may elect to receive the actuarial equivalent of option 1 pension in a reduced pension and nominate a beneficiary, in accordance with the provisions of option 2, 3, 4 or 5 as set forth in this section. If a member does not elect an option, the pension shall be paid under option 1.

(1) Option 1. Under option 1, if a retirant dies before receiving in pension payments an aggregate amount equal to the accumulated contributions standing to the retirant's credit in the pension savings fund at the time of retirement, the difference between the accumulated contributions and the aggregate amount of pension payments received shall be paid from the retirement reserve fund to such person as shall have been nominated by written designation duly executed and filed with the board. If there is no such designated person surviving the retirant, such difference, if any, shall be paid to the retirant's legal representative.

(2) Option 2. Under option 2, upon the death of a retirant, the reduced pension shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement.

(3) Option 3. Under option 3, upon the death of a retirant, one-half of the reduced pension shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement.

(4) Option 4. Under option 4, upon the death of a retirant, the reduced pension shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement. If the nominated beneficiary dies first, the retirant shall, upon the death of the nominated beneficiary, begin to receive a pension equal to the option 1 pension which would have been payable had no option been elected.

(5) Option 5. Under option 5, upon the death of a retirant, one-half of the reduced pension shall be continued throughout the life of and paid to such person, having an insurable interest in the retirant's life, as shall have been nominated by written designation duly executed and filed with the board prior to the effective date of retirement. If the nominated beneficiary dies first, the retirant shall, upon the death of the nominated beneficiary, begin to receive a pension equal to the option 1 pension which would have been payable had no option been elected.

(b) Notwithstanding any provision to the contrary, the distribution of a member's benefit shall be made in accordance with the following requirements and shall otherwise comply with Internal Revenue Code section 401(a)(9) and regulations pertaining thereto:

(1957 Rev. Ords., § 2.1118; Ord. No. 96-87, § 9, 11-16-87; Ord. No. 110-90, § 12, 12-3-90)

Sec. 35-99. Disability incurred.

Upon the application of a member, or by the department head of the fire department on behalf of a member who becomes totally and permanently incapacitated for duty as a firefighter in the service of the city, a firefighter, by reason of a personal injury or disease, may be retired by the board of trustees; provided, that after a medical examination of the member made by or under the direction of the medical committee, the medical committee certifies to the board of trustees, by majority opinion in writing, that:

(1) The member is mentally or physically totally incapacitated to perform the duties of the member's fire department classification;

(1957 Rev. Ords., § 2.1119; Ord. No. 108-85, § 20, 12-2-85; Ord. No. 36-95, § 17, 3-6-95)

Sec. 35-100. Disability pensions.

(a) A member who retires on account of disability, as provided in section 35-99, with ten or more years of credited service in the firefighters' pension fund, when the disability is found to be caused by reasons of a personal injury or disease having occurred as the result of causes arising other than in the course of his actual performance of duty as a firefighter, shall receive a primary disability pension computed the same as in section 35-96. In no case shall the primary disability pension be less than 20 percent of a firefighter's salary. The primary disability pension shall be subject to section 35-101. Upon application for retirement, the member applicant shall have the right to elect an option provided for in section 35-98.

(b) A member who retires on account of disability, as provided in section 35-99, regardless of credited years of service with the firefighters' pension fund, when the disability is found to be caused by reasons having occurred as the natural and proximate result of causes arising in whole or in part out of and in the course of his employment with the city, shall receive a primary disability pension as calculated in section 35-96 with no less than ten years of credited service. In no case shall the primary disability pension be less than 50 percent of a firefighter's salary. Unless the board determines that the retirement, including any retirement for which application is currently pending, is the result of an injury described in SDCL 9-16-45, the recipient must be receiving workers' compensation on account of this injury. The primary disability pension shall be subject to sections 35-101 and 35-102. Upon application for retirement, the member shall have the right to elect an option provided for in section 35-98 applicable to the member's primary disability pension; provided that if any benefits become payable under section 35-103 on account of the death of a disability retirant the pension payable or to be paid to the survivor beneficiary under either option 2 or 3 shall terminate.

(1957 Rev. Ords., § 2.1120; Ord. No. 108-85, § 21, 12-2-85; Ord. No. 110-89, § 20, 10-16-89; Ord. No. 88-91, § 7, 11-25-91; Ord. No. 126-99, § 1, 12-13-99)

Sec. 35-101. Conditions affecting disability retirants.

(a) At least once each year during the first five years following the retirement of a member of the firefighters' pension fund with a disability pension, and at least once in each three-year period thereafter, the board shall have the retirant, who has not attained age 55 years, undergo a medical examination to be made by or under the direction of a physician designated by the board. If the retirant refuses to submit to a medical examination in any such period, the board may suspend that retirant's pension until the refusal is withdrawn. Should such refusal continue for one year, the board may discontinue the pension. If upon a medical examination of a retirant, the physician reports to the board that the retirant is physically able and capable of resuming employment with the city as a firefighter, and the report is concurred in by the board, the retirant shall be restored to active service with the city at the same or equivalent rank held at the time of the disability retirement, and the disability pension shall be discontinued.

(b) A disability retirant restored to active service in the employ of the city shall again become a member of the pension fund. Credited service at the time of the retirement shall be restored to full force and effect and service credit shall be given for any period the retirant was in receipt of workers' compensation on account of the disability arising out of city service.

Sec. 35-102. Workers' compensation offset.

Any amounts which may be paid or payable under the provisions of any workers' compensation or similar law to a member retirant, beneficiary, or to dependents of any member, retirant or beneficiary, on account of a disability or death of a member or retirant, shall be offset against and payable in lieu of any pension payable as provided in this article. If any member, retirant, beneficiary, or the dependents of any member, retirant or beneficiary become entitled to a pension, payable from the pension fund, as the result of an accident or injury caused by the act of a third party, the city shall be subrogated to the rights of the member, retirant, beneficiary, and the dependents of the member, retirant or beneficiary against such third party to the extent of benefits which the city or the pension fund pays or becomes liable to pay on account of such accident or injury.

Sec. 35-103. Death in line of duty.

If (i) a member dies as the result of a personal injury or disease arising solely and exclusively out of and in the course of employment with the city as a firefighter, or (ii) a disability retirant dies, within a period of five years from and after the effective date of retirement and prior to his voluntary retirement age, as the result of the same injury or disease for which he was retired, and in either case (i) or (ii) such death, injury or disease resulting in death is found by the board to have been the result of his actual performance of duty in the service of the city, the applicable benefits provided in subsections (1) through (5) of this section shall be paid; provided that the pensions provided for in subsections (2) through (5) of this section shall be subject to the conditions that workers' compensation is paid on account of the death of the member; and provided further that such pensions shall be subject to subsection (6) of this section and to section 35-102.

(1) If the person dies prior to retirement, his accumulated contributions standing to his credit in the pension savings fund at the time of his death shall be paid to such person as he shall have nominated by written designation duly executed and filed with the board. If there is no such designated person surviving the member, his accumulated contributions shall be paid to his legal representative.

(2) If the deceased person leaves a spouse, the spouse shall receive a pension of one-third of a firefighter's salary. Upon the spouse's death, the pension shall terminate.

(3) If, in addition to a spouse who is entitled to a pension payable from the pension fund, the deceased person leaves an eligible child or an eligible handicapped child, each such child shall receive a pension of an equal share of one-fourth of a firefighter's salary. A child's pension shall terminate upon the attainment of age 18 years, or adoption or marriage or death. A handicapped child's pension shall terminate upon adoption, marriage, full recovery from handicap, or death. Upon termination of a child's or handicapped child's pension, the board shall redistribute the one-fourth of a firefighter's salary to the remaining eligible children; provided, however, the minimum benefit for this subsection shall be $200.00 per month for each eligible child.

(4) If the deceased person does not leave a spouse, or if the spouse dies and an eligible child or eligible handicapped child survives, such child shall each receive a pension of one-fourth of a firefighter's salary; provided that, if there are more than two such surviving children under age 18 years, each such child shall receive a pension of an equal share of one-half of a firefighter's salary. Upon termination of a child's or handicapped child's pension as provided in subsection (3) of this section, the board shall redistribute the one-half of a firefighter's salary to the remaining eligible children; provided that, in no case shall any child's pension be more than one-fourth of a firefighter's salary; provided, however, the minimum benefit for this subsection shall be $200.00 per month for each eligible child.

(5) If the deceased person leaves neither a spouse nor children eligible to receive pensions under this section, there shall be paid to each his father and mother, or either of them, a pension of one-sixth of a firefighter's salary; provided, the board finds that either or both his father and mother were dependent upon the person, at the time of death, for at least 50 percent of his support through absence of earning power due to physical or mental incapacity. Upon the remarriage or death of such a parent, his pension shall terminate.

(6) Wherever the word "spouse" is used in this section, it shall mean the person to whom the person was married at the time his employment with the city as a firefighter last terminated.

(7) Notwithstanding any provision in the system to the contrary, distributions upon the death of a member shall be made in accordance with the following requirements and shall otherwise comply with Internal Revenue Code section 401(a)(9) and the rulings pertaining thereto. If it is determined that the distribution of a member's interest has begun and the member dies before the entire interest has been distributed to the member, the remaining portion of such interest shall be distributed at least as rapidly as under the method of distribution selected by the member at retirement. If a member dies before beginning to receive any distributions of the interest under the system, then any death benefits shall be distributed to the beneficiaries by December 31 of the calendar year in which the fifth anniversary of the date of death occurs. However, such five-year distribution requirement shall not apply to any portion of the deceased member's interest which is payable to or for a designated beneficiary. In such event, such portion may be distributed over the life of such designated beneficiary (or over a period not extending beyond the life expectancy of such beneficiary), provided such distributions begin not later than December 1 of the calendar year immediately following the calendar year in which the member died.

(8) Any death benefit payable under this section shall be compared with the death benefits payable under section 35-104, and the higher death benefit shall be paid.

(1957 Rev. Ords., § 2.1123; Ord. No. 49-80, § 3, 6-9-80; Ord. No. 110-89, § 21, 10-16-89; Ord. No. 110-90, § 13, 12-3-90; Ord. No. 104-92, § 3, 12-7-92)

Sec. 35-104. Natural death benefits.

(a) A member who continues in city service as a firefighter on or after the date the member acquires ten years of credited service and (i) dies while in the service of the city, and (ii) leaves a spouse, the spouse shall receive a pension computed in the same manner in all respects as if the said member had (i) retired effective the day preceding the date of the death, notwithstanding that the member may not have attained the voluntary retirement age, (ii) elected option 2 provided for in section 35-98, and (iii) nominated the spouse as beneficiary. The spouse's pensions shall be subject to section 35-102, and shall terminate upon death. No pension shall be paid under this section on account of the death of a member if any benefits are paid under section 35-103 on account of the member's death. Any benefits paid under this section shall comply with the distribution rules in section 35-103(7).

(b) In addition to the pension benefit, if any, payable to the deceased member's spouse, their eligible child or children or eligible handicapped child shall each receive a pension of $200.00 per month, and shall be subject to section 35-102. A child's pension shall terminate upon attainment of age 18, adoption, marriage or death. A handicapped child's pension shall terminate upon adoption, marriage, full recovery from handicap or death. No benefits shall be paid under this subsection (b) on account of the death of a member if any benefits are or will become payable under section 35-103 on account of the member's death.

(1957 Rev. Ords., § 2.114; Ord. No. 49-80, § 4, 6-9-80; Ord. No. 110-89, § 22, 10-16-89; Ord. No. 110-90, § 14, 12-3-90; Ord. No. 104-92, § 4, 12-7-92)

Sec. 35-105. Refund of accumulated contributions.

(a) Except as otherwise provided in this article, should any member cease to be in the employ of the city for any reason except to become a retirant or his death, he shall be paid all or part of his accumulated contributions standing to his credit in the pension savings fund as he shall demand in writing on forms furnished by the board.

(b) Except as otherwise provided in this article, upon the death of a member his accumulated contributions standing to his credit in the pension savings fund shall be paid to such person as he shall have nominated by written designation duly executed and filed with the board. If there be no such designated person surviving the member, his accumulated contributions shall be paid to his legal representative.

(c) If any member dies intestate, without heirs, and without having nominated a beneficiary, as provided in subsection (b) of this section, his accumulated contributions standing to his credit in the pension savings fund at the time of his death may be used to pay his burial expenses, not to exceed a reasonable sum to be determined by the board; provided the member leaves no other estate sufficient for such purpose.

(d) Payment of refunds of a member's accumulated contributions, as provided for in this section, may be made in monthly installments according to such rules and regulations as the board shall from time to time adopt.

(1) Direct rollover means a payment by the plan to the eligible retirement plan specified by the distributee.

that accepts a distributee's eligible rollover distribution. The definition of eligible retirement plan shall also apply in the case of a distribution to a surviving spouse.

b. Any distribution to the extent such distribution is required under section 401(a)(9) of the code.

Sec. 35-106. Pension savings fund.

(a) The pension savings fund is hereby created. It shall be the fund in which shall be accumulated at regular interest the contributions deducted from the compensations of members to finance their share of the costs of providing pensions, and from which refunds and transfers of accumulated contributions shall be made as provided in this article.

(b) The contribution of members to the pension fund shall be eight percent of the compensation paid by the city for services rendered to the city as a firefighter.

(c) The officer responsible for making up the payroll shall cause the contributions provided for in subsection (b) of this section to be deducted from the compensation of each member on each and every payroll, for each and every payroll period, so long as he remains a member in the employ of the city. The contributions provided for in this section shall be made notwithstanding that the minimum compensation provided by law for any member shall be changed thereby. Each member shall be deemed to consent and agree to the deductions made and provided for in this section, and payment of his compensation less the deduction shall be a full and complete discharge and acquittance of all claims and demands whatsoever for the services rendered by the member during the period covered by such payment except as to benefits provided by this article. The officer responsible for making up the payroll shall certify to the city finance director the contribution to be deducted from the compensation of each member for each and every payroll. Each of such amounts shall be deducted by the city finance director and when deducted shall be paid into the pension fund and credited to the individual pension savings fund account of the member from whose compensation such deduction was made.

(d) Except as otherwise provided in this article, upon the retirement of a member, his accumulated contributions shall be transferred from the pension savings fund to the retirement reserve fund. At the expiration of a period of four years following the date a member's membership terminates any balance of accumulated contributions standing to his credit in the pension savings fund, unclaimed by the member or his legal representative, shall be transferred from the pension savings fund to the pension reserve fund.

(e) In addition to the contributions deducted from the compensation of a member, as provided in this section, the member shall pay into the annuity savings fund, by a single contribution within six months after the date of reemployment, the amount required to be repaid by section 35-90. In no case shall any member be given credit for service rendered prior to the date the member withdrew the accumulated contributions until the member repays to the annuity savings fund all amounts due the annuity savings fund by the member.

(1957 Rev. Ords., § 2.1126; Ord. No. 4-82, § 1, 1-14-82; Ord. No. 108-85, § 23, 12-2-85; Ord. No. 59-86, § 1, 6-9-86; Ord. No. 110-90, § 15, 12-3-90; Ord. No. 88-91, § 8, 11-25-91; Ord. No. 5-01, § 1, 1-16-01; Ord. No. 55-02, § 1, 7-8-02; Ord. No. 06-04, § 1, 1-12-04)

Sec. 35-107. Pension reserve fund.

(a) The pension reserve fund is hereby created. It shall be the fund in which shall be accumulated reserves for the payment of pensions payable from funds provided by the city. Upon the basis of such mortality and other tables of experience, and regular interest, as the board shall from time to time adopt, the actuary shall annually compute the pension reserves for (i) pensions being paid retirants and beneficiaries, and (ii) pensions likely to be paid on account of service rendered and to be rendered by members. The pension reserves shall be financed by annual appropriations, to be made by the council, determined according to subsections (a), (b), (c) and (d) of this section.

(b) The appropriations for members' current service shall be a percent of their annual compensations which will produce an amount which if paid annually by the city during their future service will be sufficient to provide the reserves at the time of their retirements, for the portions of the pensions to be paid them based upon their future service.

(c) The appropriation for members' accrued service shall be a percent of their annual compensations which will produce an amount which if paid annually by the city over a period of years, to be determined by the council, will amortize, at regular interest, the unfunded pension reserves for the accrued service portions of the pensions to which they might be entitled.

(d) The appropriation for pensions being paid retirants and beneficiaries shall be a percent of the annual compensations of members which will produce an amount which if paid annually by the city over a period of years, to be determined by the council, will amortize, at regular interest, the unfunded pension reserves for pensions being paid retirants and beneficiaries.

(e) Until the reserves accumulated in the retirement reserve fund equal or exceed the present value of all pensions payable from the fund, the city's contributions to the pension reserve fund, in any fiscal year, shall not be less than 12 percent of the aggregate compensations paid members during the preceding fiscal year.

(f) Upon the retirement of a member, or upon his death if he leaves beneficiaries entitled to pensions, the pension reserve for pensions payable on his account, less his accumulated contributions to be transferred as provided in section 35-106, shall be transferred from the pension reserve fund to the retirement reserve fund.

(g) To cover all or part of the city's contributions to the pension fund, as provided in this section, the city may levy an annual tax upon the assessed valuation of the city for the current year, which levy shall be in addition to the amount authorized to be levied for general purposes. Such levy shall be determined by the council as required in this section.

(h) All contributions made by the city under this system shall be deposited in the fund. However, contributions made by the city are expressly conditioned upon the initial qualification of the system under the Internal Revenue Code. Upon the city's request, a contribution which was made by mistake of fact or conditioned upon initial qualification shall be returned to the city within one year after the payment of the contribution or the denial of the qualification.

(i) Except as otherwise provided in this section, all assets of the system, including investment income, shall be retained for the exclusive benefit of members and their beneficiaries, shall be used to pay benefits to such persons or to pay administrative expenses to the extent not paid by the city and shall not revert to or inure to the benefit of the city.

(j) In no event shall the city receive any amounts from the fund upon termination of the system, except that, and notwithstanding any other provision of the system, the city shall receive such amounts, if any, as may remain after the satisfaction of all liabilities of the system and arising out of any variations between actual requirements and expected actuarial requirements.

(1957 Rev. Ords., § 2.1127; Ord. No. 2696, 7-27-70; Ord. No. 119-84, § 2, 8-27-84; Ord. No. 110-90, § 16, 12-3-90; Ord. No. 36-95, § 18, 3-6-95)

Sec. 35-108. Retirement reserve fund.

The retirement reserve fund is hereby created. It shall be the fund from which shall be paid pensions as provided in this article. In the case of a disability retirant who is returned to city service as a firefighter his pension reserve, as of the date of his return, shall be transferred to the pension savings fund and pension reserve fund in the proportion that his pension reserve was originally transferred from the funds to the retirement reserve fund.

Sec. 35-109. Crediting of state contributions, gifts, etc.

All moneys received by the city from the insurance department of the state, as the city's proportionate share of the insurance fund collected from the various insurance companies, shall be credited to the pension reserve fund. All gifts, devises and bequests to the pension fund shall be credited to the pension reserve fund.

Sec. 35-110. Prorate of pensions.

Any provision in this article to the contrary notwithstanding, if in any year, the aggregate amount of pensions payable to retirants and beneficiaries is more than the total moneys in the pension fund arising from (i) city and state contributions, and (ii) contributions made by members on whose account pensions are being paid, then the pensions being so paid shall be reduced pro rata so that the aggregate amount of the reduced pensions does not exceed the total of the moneys in the pension fund arising from (i) city and state contributions, and (ii) contributions made by members on whose account pensions are being paid.

Sec. 35-111. Pensions previously allowed.

Any pensions being paid, at the effective date of the ordinance from which this article derives, from funds of the predecessor firefighters' pension fund shall become, as of such effective date, an obligation of the pension fund and shall be paid from the retirement reserve fund. The pensions shall be continued without change as to amount, subject to section 35-10. All property, assets and records of every description held in the name of the predecessor firefighters' pension fund shall be transferred to the pension fund established by this article.

Sec. 35-112. Expense fund.

The expense fund under this article shall be the fund to which shall be credited all money provided by the city to pay the administration expenses of the firefighters' pension fund and from which shall be paid all expenses necessary in connection with the administration expenses of the pension fund.

Sec. 35-113. Investment of funds.

(a) The retirement board shall be the trustees of the assets of the firefighters' pension fund. The board shall have full and independent power to invest and reinvest the moneys and assets of the pension fund, and to hold, purchase, sell, assign, transfer and dispose of any securities and investments of the pension fund and may select a funding agent to administer and invest the funds of the fund. The selection and the appointment of the funding agent shall be made by the board which shall have the right from time to time to change the funding agent as to all or any part of the funds. The board shall have the right to determine the form and substance of each and every agreement under which the funds are to be held, provided that it shall not be inconsistent with the provisions of this article. A funding agent shall mean the corporate or individual trustees, insurance companies authorized to do business in the state, or combination thereof, appointed and acting from time to time pursuant to the provisions of this article in holding, investing and disbursing the funds of the system. Moneys of the system that are not placed with a funding agent shall be invested and reinvested in the following:

The board may engage in contract for investment counsel and advice when they deem it necessary.

(b) There shall be kept on deposit available cash not to exceed ten percent of the total assets of the fund.

(c) The description of the various funds of the pension fund shall be interpreted to refer to the accounting records of the fund and not to the segregation of its assets in the funds of the pension fund. All assets of the pension fund shall be held for the sole purpose of meeting disbursements for annuities, pensions and other payments authorized by this article and shall be used for no other purpose.

Sec. 35-114. Method of making payments.

All payments from moneys of the firefighters' pension fund shall be made according to Charter and ordinance provisions governing the disbursements of moneys from the city's general fund; provided that no payment shall be made from moneys of the pension fund unless such payment has been previously authorized by resolution adopted by the board.

Sec. 35-115. Allowance of regular interest.

At the end of each fiscal year the board of the firefighters' pension fund shall allow and credit regular interest on:

(2) The balance standing to each member's credit in the pension savings fund at the beginning of each quarter.

The interest so allowed and credited shall be payable from interest and other earnings on moneys and investments of the pension fund. Any additional amounts required to credit regular interest shall be charged to the pension reserve fund, and all interest and other earnings not required for the allowance of regular interest shall be credited to the pension reserve fund.

Sec. 35-116. Assignments prohibited.

The right of a person to a pension, to the return of accumulated contributions, the pension itself, any optional benefit, any other right accrued or accruing under the provisions of this article to any member, retirant or beneficiary and all moneys belonging to the pension fund shall be unassignable and shall not be subject to execution, garnishment, attachment, the operation of bankruptcy or insolvency law, or any other process of law whatsoever except as is specifically provided in this article.

Sec. 35-117. Errors.

Should any change or error in the records result in any member, retirant or beneficiary receiving from the firefighters' pension fund more or less than he would have been entitled to receive had the records been correct, the board shall correct such error and as far as is practicable shall adjust the payment of the benefit in such manner that the actuarial equivalent of the benefit to which such member, retirant or beneficiary was correctly entitled shall be paid.

Sec. 35-118. Reserved.

Sec. 35-119. Redetermination of pensions.

(a) The board of trustees of the firefighters' pension fund shall provide annual post-retirement redetermination of pensions. The redetermined amount shall not be less than the amount of pension otherwise payable. Any provision of this article which limits the amount of pension shall not apply to the operation of this section in redetermining the amount of pension. The application of any provision redetermining pension amounts may be restricted to pensions having an effective date of payment either prior to or subsequent to a specified date. Any post-retirement redetermination of one or more pensions within a system shall be prefunded and may not bring the system into noncompliance with the provisions of subsection (3) of section 35-121.

(b) Pursuant to subsection (a) of this section, the pension upon which redeterminations of pension are made shall be increased once on January 1, 1986, by one-half of one percent for each year of retirement based on the current pension for each person retiring on or before December 31, 1974, and one-half of one percent for each year of retirement based on the original pension for each person retiring after December 31, 1974.

(c) Each December 31 the board shall transfer to the retirement reserve fund an amount equal to the actuarial present value of all pension increases to be effective the next January 1. The amounts of the transfer shall be provided in the December 31 annual actuarial report. Starting January 1, 1991, on the first of the month following the 36th full month of retirement, the board shall redetermine the pensions of those retirants and beneficiaries whose pensions were effective 36 full months prior to the date of redetermination, and the pensions shall be increased as provided in this section effective on the first of the month following the 36th full month of retirement. On January 1, 1991, and thereafter on each January 1, the board shall redetermine the pensions of all retirants and beneficiaries and the pensions shall be increased as provided in this section. The pension shall be increased by an amount equal to the current forecast base times the pension increase percentage. The pension increase percentage shall be equal to the percentage increase, to a maximum of three percent, in the Consumer Price Index for All Urban Consumers, as computed by the United States Department of Labor, for the year ending in the month of June preceding the January 1 redetermination date.

(1957 Rev. Ords., § 2.1141; Ord. No. 2696, 7-27-70; Ord. No. 108-85, § 24, 12-2-85; Ord. No. 96-87, § 10, 11-16-87; Ord. No. 110-89, § 23, 10-16-89; Ord. No. 110-90, § 18, 12-3-90; Ord. No. 83-93, § 5, 11-22-93)

Sec. 35-120. Change in employee contribution levels.

No change may be made in employee contribution levels of this firefighters' pension system or present or future benefits of this system, by ordinance or otherwise, without an affirmative vote by both the council and the membership of the system.

Sec. 35-121. Limits of contributions.

Total contributions in each year to the firefighters' retirement system subject to article III of this chapter shall be sufficient to fund the following:

(2) The actuarially determined cost of future benefits accruing to members during the year; and

(3) An amount sufficient to amortize any unfunded liability of the system over a period not to exceed 40 years on the basis of reasonable and generally accepted actuarial assumptions.

Sec. 35-122. Changes or modifications of benefits; actuarial statement.

No benefits, present or future, may be changed or modified in any manner unless the system's actuaries have prepared an actuarial statement showing the effect of those changes on the system. No benefits, present or future, may be changed or modified if the change or modifications will bring the system into noncompliance with the provisions of section 35-121 of this chapter.

Sec. 35-123. Records; information furnished to administrator.

The city shall maintain records with respect to each employee sufficient to determine benefits due under this article or which may become due to the employee. The city shall furnish to the system administrator any information necessary for the administrator to make reports required under the provisions of this article.

Sec. 35-124. Group insurance deduction.

(a) As permitted by law, in addition to pension payments payable under this article, the pension fund shall pay from the pension fund one-half of the premium for the retirant's and beneficiary's group health insurance or prepayment plan participated in by the city.

(b) As permitted by law, if a retirant or beneficiary is covered by a group insurance or prepayment plan participated in by the city and is permitted to and elects to continue such coverage as a retirant, the retirant or beneficiary may authorize the board to have deducted from all pensions the payments required to continue coverage under such group insurance or prepayment plan.

Sec. 35-124.1. Remarriage of surviving spouse.

Surviving spouses whose pension benefits under this article have terminated or whose future pension benefits are subject to termination because of remarriage will have their surviving spousal pension benefits reinstated as of the effective date of the ordinance from which this section derives. The reinstatement of surviving spousal benefits will not be retroactive and will not include post-retirement redetermination benefit increases granted since termination of benefits, but pension benefits will begin again based on their last calculated benefit. They will be eligible under the same regulations as other retirants for future post-retirement redetermination increases.

Sec. 35-124.2. Termination of plan.

DIVISION 2. RETIREMENT BOARD*

Sec. 35-125. Administration.

There is hereby created a retirement board whose duties shall be to administer, manage and operate the firefighter's pension fund and to construe and carry into effect the provisions of this article, subject to such powers as are retained by the council.

Sec. 35-126. Composition, terms.

The board of trustees of the firefighters' pension fund shall be composed of five trustees as follows:

(1) The mayor, or such person as the mayor shall designate to act on the mayor's behalf; and one member who may or may not be a member of the council appointed by the mayor with advice and consent of the council, to represent the council;

(2) Two members of the retirement and pension system selected by the membership; and

(4) The regular term of office for the trustees selected under (2) and (3) above shall be three years, to expire on a staggered basis. The regular term of office for the trustee member appointed by the mayor shall be four years to expire on December 31 in the year of the mayoral election.

(5) No trustee selected under (1) or (3) above, except the mayor or their designee, shall serve more than two consecutive full terms of office.

(1957 Rev. Ords., § 2.1103; Ord. No. 108-85, § 29, 12-2-85; Ord. No. 67-94, § 2, 7-25-94; Ord. No. 36-95, § 21, 3-6-95)

Sec. 35-127. Oath of office.

Each member of the retirement board shall, within ten days after his appointment or election, as the case may be, take an oath of office before the city finance director for the faithful performance of his duties.

Sec. 35-128. Filling of vacancies.

(a) If a member of the retirement board shall cease to be a firefighter in the employ of the city, or should any appointed trustee, not serving as the mayor, or the citizen trustee fail to attend scheduled meetings of the board for three consecutive meetings, unless in each case excused for cause by the remaining trustees attending such meeting, the trustee shall be considered to have resigned from board membership and the board shall by resolution declare the office vacated as of the date of adoption of such resolution. Any vacancy occurring in the office of trustee shall be filled within 90 days from and after the date the vacancy occurs, for the unexpired term, in the same manner as the office was previously filled.

(b) Except for the mayor, if a member of the retirement board is unable to attend two consecutive meetings because of a leave of absence from duties, the remaining board members by unanimous vote may appoint a temporary replacement eligible in accordance with section 35-126. The appointment is effective until the term expires or the board member returns.

(1957 Rev. Ords., § 2.1104; Ord. No. 34-91, § 7, 4-8-91; Ord. No. 36-95, § 22, 3-6-95)

Sec. 35-129. Compensation.

The members of the retirement board shall serve without compensation for their services.

Sec. 35-130. Meetings.

The retirement board shall hold meetings regularly, at least one in each quarter year, and shall designate the time and place thereof. All meetings of the board shall be public.

Sec. 35-131. Rules of procedure.

The retirement board shall adopt its own rules of procedure for the conduct of its business.

Sec. 35-132. Manner of action.

Each member of the retirement board shall be entitled to one vote on each question coming before the board. At least three concurring votes shall be necessary for a decision by the board.

Sec. 35-133. Record of proceedings.

Sec. 35-134. Administrative records.

The administrative officer of the retirement board shall keep, or cause to be kept, such data as shall be necessary for an actuarial valuation of the assets and liabilities of the firefighters' pension fund.

Sec. 35-135. Annual reports.

(a) The city personnel director or their designee shall present a report to the board of trustees at the time of the annual actuarial valuation report each year showing the fiscal transactions of the firefighters' pension fund for the year ended the preceding December 31, and the last balance sheet showing the financial condition of the pension fund by means of an actuarial valuation of its assets and liabilities.

(1957 Rev. Ords., § 2.1107; Ord. No. 108-85, § 30, 12-2-85; Ord. No. 36-95, § 24, 3-6-95)

Sec. 35-136. Mortality and other tables.

The retirement board shall adopt such mortality and other tables of experience, and regular interest, as are required in the operation of the firefighters' pension fund on an actuarial basis.

Sec. 35-137. Responsibilities of fiduciary.

Every fiduciary shall discharge his duties solely in the interest of the participants and beneficiaries of the system, for the exclusive purpose of providing benefits to participants and their beneficiaries and with the skill, care, prudence and diligence, under the circumstances then prevailing, of a prudent person familiar with such matters and acting in a similar capacity. For purposes of this section, the word "fiduciary" means any person or entity who exercises any discretionary authority control over the management of this system or its assets, any person or entity who renders investment advice to this system for a fee or other compensation, or any person or entity who has any discretionary authority or discretionary responsibility in the administration of this system.

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Chapter 35 RETIREMENT AND PENSIONS*

ARTICLE I. IN GENERAL

Secs. 35-1--35-15. Reserved.

ARTICLE II. EMPLOYEE'S RETIREMENT SYSTEM

DIVISION 1. GENERALLY

Sec. 35-16. Definitions.

Sec. 35-17. Officers of retirement system.

Sec. 35-18. Composition of membership.

Sec. 35-19. Termination of membership.

Sec. 35-20. Credited service.

Sec. 35-21. Military service credit.

Sec. 35-22. Member's service accounts.

Sec. 35-23. Voluntary retirement.

Sec. 35-23.1. Early retirement; reduction of benefit.

Sec. 35-24. Mandatory retirement, police officer members.

Sec. 35-25. Retirement allowance--General member.

Sec. 35-26. Same--Police officer member.

Sec. 35-27. Terminal payment.

Sec. 35-28. Minimum retirement allowance.

Sec. 35-29. Mobility in city employment.

Sec. 35-30. Deferred retirement allowance.

Sec. 35-31. Retirement allowance options.

Sec. 35-32. Duty incurred disability.

Sec. 35-33. Duty disability allowance--Retirement after voluntary retirement age.

Sec. 35-34. Same--Retirement before voluntary retirement age.

Sec. 35-35. Non-duty-incurred disability.

Sec. 35-36. Non-duty-disability retirement allowance.

Sec. 35-37. Adjustment of disability allowance.

Sec. 35-38. Reexamination of disability retirants.

Sec. 35-39. Workers' compensation offset.

Sec. 35-40. Service-connected death benefits.

Sec. 35-41. Natural death pensions.

Sec. 35-42. Refund of accumulated contributions.

Sec. 35-43. Annuity savings fund.

Sec. 35-44. Retirement reserve fund.

Sec. 35-45. Employer reserve fund.

Sec. 35-46. Establishment of general division, police division.

Sec. 35-47. Limit of city's contributions.

Sec. 35-48. Pensions allowed prior to 1951.

Sec. 35-49. Administrative expenses.

Sec. 35-50. Investment of assets.

Sec. 35-51. Method of making payments.

Sec. 35-52. Income fund; allowance of regular interest.

Sec. 35-53. Group insurance deduction.

Sec. 35-54. Assignments prohibited.

Sec. 35-55. Correction of errors.

Sec. 35-56. Redetermination of retirement allowances.

Sec. 35-57. Application of other ordinances.

Sec. 35-58. Adoption of department of community development employee's pension plan and trust for employees thereof.

Sec. 35-59. Changes in employee contribution levels.

Sec. 35-60. Change or modification of benefits; actuarial statement.

Sec. 35-61. City to maintain records; information to be furnished to administrator.

Sec. 35-62. Remarriage of surviving spouse.

Sec. 35-62.1. Termination of plan.

DIVISION 2. BOARD OF TRUSTEES*

Sec. 35-63. Administration of system.

Sec. 35-64. Composition.

Sec. 35-65. Election of trustees.

Sec. 35-66. Terms of office.

Sec. 35-67. Oath of office.

Sec. 35-68. Filling of vacancies.

Sec. 35-69. Compensation.

Sec. 35-70. Meetings.

Sec. 35-71. Rules of procedure.

Sec. 35-72. Manner of action.

Sec. 35-73. Records of proceedings.

Sec. 35-74. Record of members.

Sec. 35-75. Annual report.

Sec. 35-76. Adoption of experience tables.

Sec. 35-77. Responsibility of fiduciary.

Secs. 35-78--35-86. Reserved.

ARTICLE III. FIREFIGHTERS' PENSION FUND*

DIVISION 1. GENERALLY

Sec. 35-87. Definitions.

Sec. 35-88. Officers of pension fund.

Sec. 35-89. Composition of membership.

Sec. 35-90. Termination of membership.

Sec. 35-91. Credited service.

Sec. 35-92. Military service credit.

Sec. 35-93. Members' service accounts.