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20041012 2004-21ORDINANCE NO. 2004-21 AN ORDINANCE AMENDING CERTAIN SECTIONS OF ARTICLE III, CHAPTER 66 OF THE CODE OF THE CITY OF FAIRFAX, VIRGINIA, PERTAINING TO THE RETIREMENT PLAN FOR PUBLIC SAFETY EMPLOYEES BE IT ORDAINED, by the City Council of the City of Fairfax, that the following specified Sections and Subsections of Article III, Chapter 66, of the Code of the City of Fairfax, Virginia, are hereby amended to read in their entirety as follows: Sec. 66-281. Definitions. For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section, unless otherwise required by the context: Accumulated contributions means, for any participant as of any date, the total obtained by accumulating each individual contribution of the participant, with interest from the July 1 next following the date such contribution was made to the first day of the month of the date as of which the computation is made. The interest to be credited to each participant's contributions for each 12-month period commencing on July 1 and ending on the following June 30 shall be determined by the committee each year on the basis of the actual net yield of the fund for such period, provided, however, that in no event shall the rate of interest credited for any such 12-month period be less than four percent per annum. Actuarial equivalent means a benefit with a reserve equal to the reserve of another benefit. Average final compensation means for any participant, as of any date, the average annual compensation of the participant during the three consecutive years of his credited service during which his compensation was highest or during the entire period of his credited service if less than three years. Beneficiary means any person who is receiving or designated to receive a plan benefit by reason of the plan participation of another person. City means the City of Fairfax, Virginia, or any municipal corporation successor thereto, or the authority of the city having the power to appoint an employee to office or employment. Committee means the administrative committee provided for in division 9 of this article. Compensation means, for any eligible employee, the full base compensation paid to him by the city excluding overtime or other compensation not a part of the set scale for an established normal working period and excluding contributions by the city to any employee benefit plan other than this plan. Compensation shall include, without duplication, contributions picked up under section 66-432(c) on behalf of the eligible employee and shall include any salary deferrals made to plans maintained by the city pursuant to sections 125 or 132(0 of the IRS Code, but shall not include contributions by the city pursuant to section 66-433. In cases where compensation includes maintenance or other perquisites, the committee shall fix the value of that part of the compensation not paid in money. Notwithstanding the foregoing, "compensation" shall not include (1) any item not specified in section 1.415-2(d)(2) of the treasury regulations or (2) any item which is listed in section 1.415-2(d)(3) of the treasury regulations. In addition to other applicable limitations set forth in the plan and notwithstanding any other provision of the plan to the contrary, for plan years beginning on or after January 1, 1994, the annual compensation for each employee taken into account under the plan shall not exceed the OBRA '93 annual compensation limit. The OBRA '93 annual compensation limit is $150,000.00, as adjusted by the secretary of the treasury for increases in the cost of living in accordance with section 401(a)(17)(b) of the IRS Code. The cost-of-living adjustment in effect for a calendar year applies to any period, not exceeding 12 months, over which compensation is determined (the determination period) beginning in such calendar year. If a determination period consists of fewer than 12 months, the OBRA '93 annual compensation limit will be multiplied by a fraction, the numerator of which is the number of months in the determination period, and the denominator of which is 12. 1 For plan years beginning on or after January 1, 1994, any reference in this plan to the limitation under section 401(a)(17) of the IRS Code shall mean the OBRA '93 annual compensation limit set forth in this provision. If compensation for any prior determination period is taken into account in determining a participant's benefits accruing in the current plan year, the compensation for that prior determination period is subject to the OBRA '93 annual compensation limit in effect for that prior determination period. For this purpose, for determination periods beginning before the first day of the first plan year beginning on or after January 1, 1994, the OBRA '93 annual compensation limit is $150,000.00. The annual compensation of each participant taken into account in determining benefit accruals for any plan year beginning after December 31, 2001, shall not exceed $200,000.00, as adjusted for cost-of-living increases in accordance with section 401(a)(17)(b) of the IRS Code. Annual compensation means compensation during the plan year or the determination period. 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. Contingent annuitant means the person designated by a participant to receive retirement benefits, after the death of the participant, under the joint and last survivor option of division 5 of this article. Contributions means the payments to the fund by the city and/or the participants as provided for in this article. Credited service means, for any participant as of any date, the period or periods prior thereto during which he shall have been in the full-time employ of the city, exclusive of: (a) Any period of employment prior to his date of becoming a participant if he did not become a participant within 90 days after his earliest opportunity to do so; and (b) Subject to subsection (f) below, any period of employment prior to the date of any withdrawal of the participant's accumulated contributions in accordance with the provisions of division 7 of this article. In addition to his period or periods of full-time employment, the credited service of a participant shall include any period of his: (c) Vacation, or any other absence from employment for which the participant shall receive full compensation; (d) Leave of absence without pay specifically authorized by the city under general rules uniformly applicable to all employees similarly situated; and (e) Service in the armed forces of the United States, provided the participant entered such service directly from the employ of the city, was honorably discharged from such service, and was reemployed by the city during a period when his right to reemployment with the city was protected by law, to the extent credit for service is required to be given pursuant to section 414(u) of the IRS Code and the Uniformed Services Employment and Reemployment Rights Act. (f) Service that was previously cancelled in accordance with section 66-407, or not credited during a period of time classified by the city as "leave without pay," and reinstated effective as of the earlier of the date of the participant's cessation of the receipt of compensation following termination of employment or completion of repayment of withdrawn contributions, under the following conditions: 1. The participant has at least one month of 'Qualified 2004 service' within the meaning of this section 66-281 or 66-41. 2. The participant has repaid all or a portion of the contributions withdrawn plus interest on such contributions as determined in subparagraph 3. 3. Interest has been charged on the participant's previously withdrawn contributions at an annual rate of 5.0% or such other rate as the committee may subsequently establish for these purposes, compounded bi-weekly. The interest has been charged from the date of withdrawal to the earlier of the participant's termination of employment or completion of the repayment. 4. Redeposit of the withdrawn contributions, plus interest, has been made on or before the later of the following two dates: (a) Five years after the participant has been reemployed by the city, and (b) December 31, 2009. Illll 5. The Service to be reinstated is not eligible for and has not been credited under another retirement system (with the exception of the Virginia Retirement System). 6. The participant has completed and executed in a timely manner any and all forms the Committee deems necessary for the reasonable operation and administration of these service reinstatement provisions. 7. The participant has elected to repay the withdrawn contributions in one of the following forms: (a) A direct rollover from another employer's qualified retirement plan or tax deferred annuity plan of the total amount of the withdrawn contributions, plus interest; (b) A direct rollover or direct transfer from an eligible deferred compensation plan established pursuant to Section 457(b) of the IRS Code of the total amount of the withdrawn contributions, plus interest; or (c) Pre-tax payments pursuant to one or more binding, irrevocable payroll deduction authorizations between the city and the participant. If the participant enters into such an authorization, the participant contributions will be picked up by the city, as described in Section 414(h)(2) of the IRS Code and deducted from the pay of the contributing participant as a salary reduction contribution and paid by the city to the Trustee with reasonable promptness. 8. If the Participant elects to repay the withdrawn contributions by pre-tax payments pursuant to subsection (f)(7)(c), the minimum payment per pay period shall be $20.00. Furthermore, if the participant ceases to receive compensation from the city following termination of employment prior to completing the payment of the withdrawn contributions, the service credit awarded shall be pro-rated based on the payments made as of the date the participant ceases to receive compensation following termination of employment. Solely for purposes of calculating a benefit (other than a disability retirement allowance) becoming effective April 1, 1983 or later, the credited service of a participant shall also include his completed months of unused sick leave at time of termination of employment, based on 173 hours of unused sick leave constituting one completed month; provided, in no event shall the inclusion of unused sick leave as credited service affect the calculation of the participant's compensation or average final compensation. Eligible employee means any person regularly employed by the city on a full-time basis as a member of the police department with police powers (except an animal control officer with police powers) or as a salaried member of the department of fire and rescue services (fire service uniform personnel), whose customary employment is for more than five months per year. Eligible employee also means any former eligible employee who, as a result of a disability incurred while an eligible employee, is no longer able to continue in employment described in the preceding sentence and is now regularly employed by the city on a full-time basis (and for more than five months per year) in other employment. Fund means the trust fund created under the terms of the trust agreement, consisting of the cash, securities and other assets held by the trustee pursuant to the terms of the plan. Inflation index means the Consumer Price Index for All Urban Consumers, All Items, U.S. City Average, as published by the Bureau of Labor Statistics of the United States Department of Labor. IRS Code means the Internal Revenue Code of 1986, as amended from time to time. Participant means an eligible employee or a former eligible employee who has become eligible to participate in the plan as provided in division 2 of this article, and is prospectively entitled to future benefits under the terms of the plan. Plan means the Retirement Plan for Police and Fire Employees of the City of Fairfax, Virginia, as now contained in this article or as duly amended. Plan year means the 12-month period ending on the last day of June. Qualified 2004 Service (for the purposes of the January 1, 2004 amendments) means credited service earned on or after December 1, 2003 in direct connection with employment as an eligible employee of the city. 3 Reserve means the present value of all payments to be made on account of any plan benefit, based upon such reasonable tables of experience and interest as the committee shall adopt, from time to time, after consulting with its actuary. Social Security full retirement age means the age at which there is no reduction in Social Security benefits based upon the following table: TABLE INSET: Year Born Age for Full Benefits 1937 or earlier 65 yrs. 1938 1939 1940 1941 1942 1943--1954 1955 1956 1957 1958 1959 1960 orl~er 65 yrs., 2 mos. 65 yrs., 4 mos. 65 yrs., 6 mos. 65 yrs., 8 mos. 65 yrs., 10 mos. 66 yrs. 66 yrs., 2 mos. 66 yrs., 4 mos. 66 yrs., 6 mos. 66 yrs., 8 mos. 66 yrs., 10 mos. 67 yrs. Totally and permanently disabled means as set forth in subsection 66-323(b). Trust agreement means the agreement entered into between the city and the trustee pertaining to the administration of the fund. Trustee means the financial institution appointed by council to hold in trust and invest the fund, as provided for in division 8, which may, from time to time, be acting in that capacity under the terms of the trust agreement. Year of credited service means a plan year during which an eligible employee is employed on a substantially full time basis and makes the contributions required to be made pursuant to section 66-432 for the entire year or otherwise receives credit for credited service pursuant to this section 66-281. Notwithstanding the foregoing, for purposes of determining the amount of a participant's retirement benefit pursuant to sections 66-321 and 66-323, a participant shall receive credit for one-twelfth of a year of credited service for each month during which the participant was an eligible employee for the entire month, was employed on a substantially full time basis and made the contributions required to be made pursuant to section 66-432 for the entire month or otherwise receives credit for credited service pursuant to this section 66- 281. Cross references: Definitions generally, § 1-2. Sec. 66-408. Deferred retirement allowance. (a) Subject to the provisions of section 66-411, in the event of the termination of a participant's employment with the city, other than by death, prior to his retirement hereunder but after he has completed five or more years of credited service, there shall be paid to such participant, a monthly retirement allowance determined as hereinbelow provided. The monthly allowance shall commence at the election of the participant, on the first day of any month coincident with or following the later of his date of termination of employment or his attainment of his normal retirement date. Payment of the retirement allowance shall continue on the first day of each month thereafter during his lifetime; provided, however, that any participant shall have the right, at any time after termination of employment and prior to the commencement of payment of a deferred retirement allowance, to receive in a lump sum his accumulated contributions as of the date such payment is requested, but such payment shall terminate the participant's rights to a deferred retirement allowance hereunder, and shall cancel any period of credited service previously credited to him. In the case of a participant who elected to reinstate service credit as provided for in subsection (f) of the definition of 'credited service' in section 66-281, the requirement of five years of credited service stated above shall be waived. l (b) The amount of the monthly retirement allowance payable to an eligible participant under the provisions of this section shall be determined in the same manner as provided in section 66-341, except that credited service and average final compensation shall be determined as of the date of the participant's termination of employment. (c) Any participant becoming entitled to an allowance under the provisions of this section shall be entitled to elect, at the time of commencement of such allowance, to have his allowance paid under option 1 or option 2 (if applicable) of section 66-366. BE IT FURTHER ORDAINED that this ordinance shall become effective upon adoption as provided by law. INTRODUCED: September 28, 2004 PUBLIC HEARING: October 12, 2004 ENACTED: October 12, 2004 ATTEST: MAYOR DATE Clerk VOTE: Councilwoman Cross absent Councilman Greenfield aye Councilwoman Lyon aye Councilman Rasmussen absent Councilman Silverthorne aye Councilmember Winter aye 1571976. v2