1-1 AN ACT
1-2 relating to a firefighters' relief and retirement fund in certain
1-3 municipalities.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Title 109, Revised Statutes, is amended by adding
1-6 Article 6243e.2(1) to read as follows:
1-7 Art. 6243e.2(1). FIREFIGHTERS' RELIEF AND RETIREMENT FUND IN
1-8 MUNICIPALITIES OF AT LEAST 1,600,000 POPULATION
1-9 Sec. 1. DEFINITIONS. In this article:
1-10 (1) "Average monthly salary" means one thirty-sixth of
1-11 the member's salary as a firefighter for the member's highest 78
1-12 biweekly pay periods during the member's participation in the fund
1-13 or, if the member has participated in the fund for less than three
1-14 years, the total salary paid to the member for the periods the
1-15 member participated in the fund divided by the number of months the
1-16 member has participated in the fund. If a member is not paid on
1-17 the basis of biweekly pay periods, "average monthly salary" is
1-18 determined on the basis of the number of pay periods under the
1-19 payroll practices of the municipality sponsoring the fund that most
1-20 closely correspond to 78 biweekly pay periods.
1-21 (2) "Board" or "board of trustees" means the board of
1-22 trustees of a firefighters' relief and retirement fund established
1-23 under this article.
1-24 (3) "Code" means the federal Internal Revenue Code of
2-1 1986.
2-2 (4) "Deferred retiree" means a member who is eligible
2-3 for a benefit under Section 8(a) of this article.
2-4 (5) "Disabled child" means any individual who is the
2-5 child of a member by birth or adoption and who is totally disabled
2-6 as a result of a physical or mental illness or injury, including
2-7 retardation, at the time the member dies or who becomes so disabled
2-8 before reaching 18 years of age. The term includes a child the
2-9 board determines is unable to pursue any gainful employment.
2-10 (6) "DROP" means the deferred retirement option plan
2-11 under Section 5 of this article.
2-12 (7) "DROP account" means the notional account
2-13 established to reflect the credits, contributions, and earnings or
2-14 losses of a member who has made a DROP election in accordance with
2-15 Section 5 of this article.
2-16 (8) "Eligible child" means a child of a member by
2-17 birth or adoption who is unmarried and under 18 years of age, a
2-18 disabled child, or under 23 years of age, unmarried, and a
2-19 full-time student enrolled in an accredited college or university,
2-20 but only if the member executes an election permitting the child to
2-21 be treated as an eligible child in accordance with procedures
2-22 established by the board or if the member does not have an eligible
2-23 spouse.
2-24 (9) "Eligible parent" means a parent of a member, by
2-25 birth or by adoption while the member was a minor, who proves to
2-26 the satisfaction of the board that the parent was a dependent of
2-27 the member immediately before the member's death.
3-1 (10) "Eligible spouse" means:
3-2 (A) in the case of a member who dies after June
3-3 30, 1998, a spouse to whom the member was married at the time of
3-4 the member's death; or
3-5 (B) in the case of a member who dies before July
3-6 1, 1998, a spouse to whom the member was married at the time the
3-7 member's benefit under this article is scheduled to begin and at
3-8 the time of the member's death.
3-9 (11) "Firefighter" means a full-time, fully paid,
3-10 active, classified member of a regularly organized fire department
3-11 of an incorporated municipality with a fund established under this
3-12 article.
3-13 (12) "Fund" means a firefighters' relief and
3-14 retirement fund established under this article.
3-15 (13) "Member" means a firefighter or former
3-16 firefighter who has satisfied the eligibility requirements under
3-17 Section 13 of this article and who has not yet received a
3-18 distribution of the entire benefit to which the person is entitled
3-19 under this article.
3-20 (14) "Off-duty disability" means a physical or mental
3-21 disability that:
3-22 (A) is likely to be permanent; and
3-23 (B) results from a cause other than a bodily
3-24 injury received in, or illness caused by, the performance of a
3-25 member's duties as a firefighter.
3-26 (15) "On-duty disability" means a physical or mental
3-27 disability that:
4-1 (A) is likely to be permanent; and
4-2 (B) results from a bodily injury received in, or
4-3 illness caused by, the performance of the member's duties as a
4-4 firefighter.
4-5 (16) "Salary" means the amounts includable in gross
4-6 income of a member plus any amount not includable in gross income
4-7 under Section 125, Section 402(e)(3) or (h), Section 403(b), or
4-8 Section 414(h) of the code.
4-9 (17) "Years of participation" means the number of
4-10 years that a member has participated in the fund by making the
4-11 contributions required by this article, as determined under rules
4-12 established by the board.
4-13 Sec. 2. FUND AND BOARD OF TRUSTEES. (a) A firefighters'
4-14 relief and retirement fund is established in each incorporated
4-15 municipality that has a population of at least 1,600,000 and a
4-16 fully paid fire department.
4-17 (b) The board of trustees of the fund shall be known as the
4-18 "Board of Firefighters' Relief and Retirement Fund Trustees of
4-19 __________, Texas." The board consists of 10 trustees, including:
4-20 (1) the mayor or an appointed representative of the
4-21 mayor;
4-22 (2) the treasurer of the municipality or, if there is
4-23 not a treasurer, the secretary, clerk, or other person who by law,
4-24 charter provision, or ordinance performs the duty of treasurer of
4-25 the municipality;
4-26 (3) five firefighters who are members of the fund;
4-27 (4) one person who is a retired firefighter and a
5-1 member of the fund with at least 20 years of participation; and
5-2 (5) two persons, each of whom is a registered voter of
5-3 the municipality, has been a resident of the municipality for at
5-4 least three years preceding the date of initial appointment, and is
5-5 not a municipal officer or employee.
5-6 (c) To serve as a trustee under Subsection (b)(3) of this
5-7 section, a person must be elected by ballot of the firefighters who
5-8 are members of the fund. That election shall be held during the
5-9 last quarter of the year preceding the January in which the term of
5-10 a trustee occupying one of those positions expires. The trustee
5-11 serves a term of three years. Three of the trustees described
5-12 under Subsection (b)(3) of this section shall be elected from the
5-13 suppression division of the fire department. One of the trustees
5-14 from the suppression division must have the rank of firefighter or
5-15 engineer/operator, and the position on the board to which that
5-16 trustee is elected is designated as Position I. One of the
5-17 trustees from the suppression division must have the rank of
5-18 captain or senior captain, and the position on the board to which
5-19 that trustee is elected is designated as Position II. One of the
5-20 trustees from the suppression division must have the rank of
5-21 district chief, deputy chief, or assistant chief, and the position
5-22 on the board to which that trustee is elected is designated as
5-23 Position III. One of the trustees described under Subsection
5-24 (b)(3) of this section shall be elected from the fire prevention
5-25 division, and the position on the board to which that trustee is
5-26 elected is designated as Position IV. One of the trustees
5-27 described under Subsection (b)(3) of this section shall be elected
6-1 from the fire alarm operators division or the fire department
6-2 repair division, and the position on the board to which that
6-3 trustee is elected is designated as Position V.
6-4 (d) To serve as a trustee under Subsection (b)(4) of this
6-5 section, a person must be elected by ballot of those retired
6-6 members with at least 20 years of participation in the fund. The
6-7 election shall be held during the last quarter of every third year
6-8 starting in 1997. The trustee serves a three-year term, starting
6-9 in January after the trustee is elected.
6-10 (e) To serve as a trustee under Subsection (b)(5) of this
6-11 section, a person must be appointed by the elected members of the
6-12 board. Each of those trustees serves a staggered term of two
6-13 years. The appointment or reappointment of one of those trustees
6-14 shall take place in December of each year.
6-15 (f) If a vacancy occurs in an elected position on the board,
6-16 the vacancy shall be filled in the manner provided in this section
6-17 for the election of the trustee to that position. The election may
6-18 occur either at the next following regular election of trustees by
6-19 members of the fire department or in a special election called by
6-20 the board. If a vacancy occurs in a position appointed by the
6-21 elected trustees of the board, that position shall be filled by a
6-22 vote of the elected trustees of the board. A trustee who is
6-23 elected or selected to fill a vacancy holds office for the
6-24 unexpired term of the trustee who vacated that position.
6-25 (g) Each trustee of the board shall, at the first board
6-26 meeting following the trustee's most recent election or
6-27 appointment, take an oath of office that the trustee will
7-1 diligently and honestly administer the affairs of the fund and that
7-2 the trustee will not knowingly violate or willingly permit this
7-3 article to be violated.
7-4 (h) The board shall annually elect from among the trustees a
7-5 chair, a vice chair, and a secretary. The person described under
7-6 Subsection (b)(2) of this section serves as the treasurer of the
7-7 fund under penalty of that person's official bond and oath of
7-8 office.
7-9 (i) A trustee of the board may not receive compensation for
7-10 service on the board.
7-11 (j) A majority of the trustees of the board constitutes a
7-12 quorum to transact business. An order of the board must be made by
7-13 vote recorded in the minutes of the board's proceedings. Each
7-14 decision of the board in a matter under the board's jurisdiction is
7-15 final and binding as to each affected firefighter, member, and
7-16 beneficiary, subject only to the rights of appeal specified by this
7-17 article.
7-18 (k) The board shall receive, manage, and disburse the fund
7-19 for the municipality and shall hear and determine applications for
7-20 retirement and claims for disability and designate the
7-21 beneficiaries or persons entitled to participate as provided by
7-22 this article.
7-23 (l) The board shall hold regular monthly meetings at a time
7-24 and place as the board by resolution designates and may hold
7-25 special meetings on call of the chair as the chair determines is
7-26 necessary, keep accurate minutes of board meetings and records of
7-27 board proceedings, keep separate from all other municipal funds all
8-1 money for the use and benefit of the fund, and keep a record of
8-2 claims, receipts, and disbursements. A disbursement from the fund
8-3 may be made in accordance with procedures established by the board.
8-4 (m) The municipality shall provide full and timely
8-5 information to the board on matters relating to the hiring of new
8-6 firefighters, compensation of members, members' deaths or
8-7 terminations of service, and such other information concerning
8-8 firefighters as is reasonably required by the board, from time to
8-9 time, for the board to administer the fund and provide benefits
8-10 properly.
8-11 (n) The board shall not later than January 31 of each year
8-12 make and file with the treasurer of the municipality a detailed and
8-13 itemized report of all receipts and disbursements with respect to
8-14 the fund, together with a statement of fund administration, and
8-15 shall make and file other reports and statements or furnish further
8-16 information as from time to time may be required or requested by
8-17 the treasurer of the municipality.
8-18 (o) The secretary of the board shall, not later than the
8-19 seventh day after the date of each board meeting, forward true
8-20 copies of the minutes of the meeting to each fire station and to
8-21 each division of the fire department.
8-22 (p) The board shall manage the fund according to the terms
8-23 and purposes of this article and all applicable sections of the
8-24 code and has the powers necessary to accomplish that purpose,
8-25 including the power to:
8-26 (1) adopt for the administration of the fund written
8-27 rules and guidelines not inconsistent with this article;
9-1 (2) interpret and construe this article and any
9-2 summary plan descriptions or benefits procedures, except that each
9-3 construction must meet any qualification requirements established
9-4 under Section 401 of the code;
9-5 (3) correct any defect, supply any omission, and
9-6 reconcile any inconsistency that appears in this article in a
9-7 manner and to the extent that the board considers expedient to
9-8 administer this article for the greatest benefit of all members;
9-9 (4) select, employ, and compensate employees the board
9-10 considers necessary or advisable in the proper and efficient
9-11 administration of the fund;
9-12 (5) determine all questions, whether legal or factual,
9-13 relating to eligibility for participation, service, or benefits or
9-14 relating to the administration of the fund to promote the uniform
9-15 administration of the fund for the benefit of all members;
9-16 (6) establish and maintain records necessary or
9-17 appropriate to the proper administration of the fund; and
9-18 (7) compel witnesses to attend and testify before the
9-19 board concerning matters related to the operation of this article
9-20 in the same manner provided for taking of testimony before notaries
9-21 public.
9-22 (q) The chair may administer oaths to witnesses.
9-23 (r) The board shall maintain at the offices of the fund the
9-24 original of each rule or guideline adopted under this section and
9-25 shall deliver to the municipality a copy of each adopted rule or
9-26 guideline.
9-27 Sec. 3. OTHER POWERS OF THE BOARD. (a) If the board
10-1 determines that there is a surplus of funds in an amount exceeding
10-2 the current demands on the fund, the board may invest the surplus
10-3 in the manner provided by Chapter 802, Government Code.
10-4 (b) The board may employ persons to perform any investment,
10-5 administrative, legal, medical, accounting, clerical, or other
10-6 service the board considers appropriate, including:
10-7 (1) a certified public accountant or firm of certified
10-8 public accountants to perform an audit of the fund at times and
10-9 intervals the board considers necessary;
10-10 (2) a professional investment manager or firm of
10-11 managers as provided by Section 802.204, Government Code;
10-12 (3) an actuary or actuarial firm at times and for
10-13 purposes the board considers necessary or appropriate;
10-14 (4) an attorney or firm of attorneys to advise,
10-15 assist, or represent the board in any legal matter relating to the
10-16 fund, including litigation involving matters under this article; or
10-17 (5) a physician to examine a firefighter before the
10-18 firefighter becomes a member of the fund or to examine a member or
10-19 beneficiary applying for or receiving a disability pension or
10-20 survivor benefit.
10-21 (c) A fee incurred in connection with a service or person
10-22 employed under Subsection (b) of this section may be paid from the
10-23 fund, except that the costs of audits under Subsection (b)(1) of
10-24 this section may be paid from the fund only if the municipality
10-25 does not pay that cost.
10-26 (d) The board may have an actuarial valuation performed each
10-27 year, and for determining the municipality's contribution rate as
11-1 provided by Section 13(d) of this article, the board may adopt a
11-2 new actuarial valuation each year, except that an actuarial
11-3 valuation that will result in an increased municipal contribution
11-4 rate that is above the statutory minimum may be adopted only once
11-5 every three years, unless the governing body of the municipality
11-6 consents to a more frequent increase.
11-7 (e) In addition to any other remedy the board has, including
11-8 any right of set-off from future benefits, the board may recover by
11-9 civil action from any offending party or from the party's surety
11-10 money paid out or obtained from the fund through fraud,
11-11 misrepresentation, defalcation, theft, embezzlement, or
11-12 misapplication and may institute, conduct, and maintain the action
11-13 in the name of the board for the use and benefit of the fund.
11-14 (f) On written request from the chair, the municipal
11-15 attorney shall represent the board or the fund in any legal matter,
11-16 including litigation. The municipal attorney is not entitled to
11-17 compensation from the fund for providing that representation.
11-18 (g) The board may, from fund assets, purchase from an
11-19 insurer licensed to do business in this state insurance to cover
11-20 liabilities and losses of the fund and to indemnify and hold the
11-21 trustees of the board and employees of the board, individually and
11-22 collectively, harmless from the effects and consequences of their
11-23 acts, omissions, and conduct within the scope of their official
11-24 capacity as fiduciaries or cofiduciaries or within the scope of
11-25 what the board trustee or employee believes in good faith, at the
11-26 time, to be the board trustee's or employee's official capacity.
11-27 An insurance company through which insurance is purchased under
12-1 this subsection has a cause of action against a board trustee or
12-2 employee to the extent that a loss results from the board trustee's
12-3 or employee's wilful and malicious misconduct or gross negligence.
12-4 If insurance is unavailable, insufficient, inadequate, or not in
12-5 effect, the board may indemnify a board trustee or employee for
12-6 liability imposed as damages and for reasonable costs and expenses
12-7 incurred by that individual in defense of an alleged act, error, or
12-8 omission committed in the individual's official capacity or within
12-9 the scope of what the board trustee or employee believed in good
12-10 faith, at the time, to be the board trustee's or employee's
12-11 official capacity. The board may not indemnify a board trustee or
12-12 employee for the amount of a loss that results from the board
12-13 trustee's or employee's wilful and malicious misconduct or gross
12-14 negligence. The board may establish a self-insurance fund to pay
12-15 claims for the indemnification. The board shall provide that the
12-16 self-insurance fund must be limited to an amount not to exceed the
12-17 greater of three percent of the fund assets or $5 million. The
12-18 self-insurance fund shall be invested in the same manner as other
12-19 assets of the fund, and all earnings and losses from investing the
12-20 self-insurance fund shall be credited to the self-insurance fund
12-21 unless that credit exceeds the limit on the self-insurance fund set
12-22 by the board or this subsection. Amounts held in the
12-23 self-insurance fund may not be included in the actuarial valuation
12-24 for purposes of determining the municipal contribution rate or the
12-25 assets available to satisfy the actuarial liabilities of the fund
12-26 to pay service, disability, or death benefits provided by this
12-27 article. A decision to indemnify or make a reimbursement out of
13-1 the self-insurance fund must be made by a majority vote of board
13-2 trustees eligible to vote on the matter. If the proposed
13-3 indemnification or reimbursement is of a trustee, that trustee may
13-4 not vote on the matter.
13-5 Sec. 4. SERVICE PENSION BENEFITS. (a) A member with at
13-6 least 20 years of participation who terminates active service for
13-7 any reason other than death is entitled to receive a service
13-8 pension provided by this section.
13-9 (b) A member who terminates active service on or after
13-10 November 1, 1997, and who has completed at least 20 years of
13-11 participation in the fund on the effective date of termination of
13-12 service is entitled to a monthly service pension, beginning on the
13-13 effective date of termination of active service, in an amount equal
13-14 to 50 percent of the member's average monthly salary, plus three
13-15 percent of the member's average monthly salary for each year of
13-16 participation in excess of 20 years, but not in excess of 30 years
13-17 of participation, for a maximum total benefit of 80 percent of the
13-18 member's average monthly salary.
13-19 (c) A member who terminated active service before November
13-20 1, 1997, and who had completed at least 20 years of participation
13-21 on the effective date of termination of service is entitled on
13-22 retirement to receive a monthly service pension in the amount
13-23 provided under the law in effect on the effective date of that
13-24 retirement, unless a subsequent benefit increase is expressly made
13-25 applicable to that member.
13-26 (d) A member with a service or disability pension, other
13-27 than a deferred retiree or an active member who has elected the
14-1 DROP under Section 5(b) of this article, who began receiving
14-2 benefits from the fund before November 1, 1997, or a member's
14-3 beneficiary who began receiving benefits from the fund before
14-4 November 1, 1997, shall be paid a one-time additional benefit of
14-5 $5,000 from the fund, payable in a lump sum as soon as
14-6 administratively practicable after November 1, 1997.
14-7 (e) The total monthly benefit payable to a retired or
14-8 disabled member, other than a deferred retiree or active member who
14-9 has elected the DROP under Section 5(b) of this article, or each
14-10 eligible survivor of a deceased member, shall be increased by $100,
14-11 beginning with the monthly payment made for July 1999. That
14-12 additional benefit may not be increased under Section 11(c) of this
14-13 article.
14-14 (f) The benefit under Subsection (d) of this section shall
14-15 be paid to the member or to the eligible spouse of a deceased
14-16 member. If the member is deceased and there is no eligible spouse,
14-17 the benefit shall be divided equally among and paid to each
14-18 eligible child of the member, or, if there is no eligible child,
14-19 the benefit shall be divided among the eligible parents of the
14-20 member.
14-21 Sec. 5. DEFERRED RETIREMENT OPTION PLAN. (a) A member who
14-22 is eligible to receive a service pension under Section 4 of this
14-23 article and who remains in active service may elect to participate
14-24 in the deferred retirement option plan provided by this section.
14-25 On subsequently terminating active service, a member who elected
14-26 the DROP may apply for a monthly service pension under Section 4 of
14-27 this article, except that the effective date of the member's
15-1 election to participate in the DROP will be considered the member's
15-2 retirement date for determining the amount of the member's monthly
15-3 service pension. The member may also apply for any DROP benefit
15-4 provided under this section on terminating active service. Except
15-5 as provided by Subsection (n) of this section, an election to
15-6 participate in the DROP, once approved by the board, is
15-7 irrevocable.
15-8 (b) A member may elect to participate in the DROP by
15-9 complying with the election process established by the board. The
15-10 member's election may be made at any time beginning on the date the
15-11 member has completed 20 years of participation in the fund and is
15-12 otherwise eligible for a service pension under Section 4 of this
15-13 article. The election becomes effective on the first day of the
15-14 month following the month in which the board approves the member's
15-15 DROP election. Beginning on the effective date of the member's
15-16 DROP election, amounts equal to the deductions made from the
15-17 member's salary under Section 13(c) of this article shall be
15-18 credited to the member's DROP account. If a DROP participant
15-19 remains in active service after the fifth anniversary of the
15-20 effective date of the member's DROP election, subsequent deductions
15-21 from the member's salary under Section 13(c) of this article may
15-22 not be credited to the member's DROP account and may not otherwise
15-23 increase any benefit payable from the fund for the member's
15-24 service.
15-25 (c) Beginning in the month a member's DROP election becomes
15-26 effective, an amount equal to the monthly service pension the
15-27 member would have received under Section 4 of this article and
16-1 Section 11(c) of this article, if applicable, had the member
16-2 terminated active service on the effective date of the member's
16-3 DROP election shall be credited to a DROP account maintained for
16-4 the member. That monthly credit to the member's DROP account shall
16-5 continue until the earlier of the date the member terminates active
16-6 service or the fifth anniversary of the effective date of the
16-7 member's DROP election.
16-8 (d) A member's DROP account shall be credited with earnings
16-9 or losses at an annual rate equal to the average annual return
16-10 earned by the fund over the five years preceding, but not
16-11 including, the year during which the credit is given. Those
16-12 earnings or losses shall be computed and credited at a time and in
16-13 a manner determined by the board, except that earnings or losses
16-14 shall be credited not less frequently than once in each 13-month
16-15 period and shall take into account partial years of participation
16-16 in the DROP. If the member has not terminated active service, the
16-17 member's DROP account may not be credited with earnings or losses
16-18 after the fifth anniversary of the effective date of the member's
16-19 DROP election.
16-20 (e) A member who terminates active service after
16-21 participating in the DROP is entitled to receive, in addition to
16-22 the member's service pension under Section 4 of this article, a
16-23 benefit equal to the balance of the member's DROP account. Unless
16-24 the member elects to receive installment or partial distributions
16-25 in accordance with Subsection (f) or (h) of this section, the
16-26 balance of a member's DROP account shall be paid to the member in a
16-27 single lump-sum payment as soon as is administratively practicable
17-1 after the member's termination of active service.
17-2 (f) In lieu of a single lump-sum payment, a member may elect
17-3 to receive the balance of the member's DROP account in three
17-4 substantially equal installments. A member electing the installment
17-5 form of distribution is entitled to receive the first installment
17-6 within a reasonable period after terminating active service. The
17-7 second and third installments shall be paid to the member on the
17-8 first and second anniversaries of the date of the first
17-9 installment. A member electing to receive the member's DROP
17-10 account balance in installments may convert that election at any
17-11 time after receipt of the first installment to an election to
17-12 receive the remainder of the member's DROP account balance in a
17-13 lump-sum payment. If a member elects to receive installments, the
17-14 member's DROP account may not be credited with earnings or losses
17-15 occurring after the member leaves active service. The DROP account
17-16 balance of a member who elects to receive the member's DROP account
17-17 balance in installments may not be credited with interest after the
17-18 date of payment of the first installment.
17-19 (g) The board may adopt by a majority vote the provisions of
17-20 Subsections (h) and (i) of this section.
17-21 (h) In lieu of a single lump-sum payment, a member may elect
17-22 to receive partial payments from the member's DROP account for each
17-23 calendar year, in an amount elected by the member. The board may
17-24 establish procedures concerning partial payments, including
17-25 limitations on timing and frequency of those payments. A member
17-26 who elects partial payments may, at any time, elect to receive the
17-27 member's entire remaining DROP account balance in a single lump-sum
18-1 payment.
18-2 (i) If a member elects partial payments, for periods after a
18-3 member terminates active service and before the member's DROP
18-4 account is completely distributed, the member's DROP account shall
18-5 be credited with earnings or losses of the fund as computed under
18-6 Subsection (d) of this section and reduced by an administrative fee
18-7 of one percent of the account balance each year, determined before
18-8 adjustment for earnings or losses for the year.
18-9 (j) An election by a member concerning installment or
18-10 partial payments as provided by Subsections (f)-(i) of this section
18-11 must satisfy the requirements of Section 401(a)(9) of the code.
18-12 All distributions and changes in form of distribution must be made
18-13 in a manner and at a time that comply with that provision.
18-14 (k) A member who elects to participate in the DROP is
18-15 considered to have terminated active service on the effective date
18-16 of the member's DROP election for purposes of computing and
18-17 providing service pension benefits under Section 4 of this article
18-18 and for purposes of computing and providing death benefits under
18-19 Section 7 of this article. A salary earned or additional years of
18-20 participation completed after the member's DROP election becomes
18-21 effective may not be considered in the computation of retirement,
18-22 disability, or death benefits unless a DROP revocation is made as
18-23 prescribed by Subsection (n) of this section.
18-24 (l) If a DROP participant dies before complete distribution
18-25 of the member's DROP account has been made, the member's DROP
18-26 account balance shall be distributed to the member's eligible
18-27 beneficiaries, determined as follows:
19-1 (1) if the member is survived by a person who was the
19-2 member's spouse on the member's last day of active service and one
19-3 or more eligible children, one-half of the member's DROP account
19-4 balance shall be paid to that eligible spouse, and the remaining
19-5 one-half shall be divided equally among the member's eligible
19-6 children;
19-7 (2) if the member is survived by a spouse described by
19-8 Subdivision (1) of this subsection, but not by an eligible child,
19-9 the member's entire DROP account balance shall be paid to the
19-10 surviving spouse;
19-11 (3) if the member is survived by one or more eligible
19-12 children, but not by a spouse described by Subdivision (1) of this
19-13 subsection, the member's DROP account balance shall be divided
19-14 equally among the eligible children;
19-15 (4) if the member is not survived by a spouse
19-16 described by Subdivision (1) of this subsection or an eligible
19-17 child, the member's DROP account balance shall be divided equally
19-18 among the member's eligible parents;
19-19 (5) if the member is not survived by a spouse
19-20 described by Subdivision (1) of this subsection, an eligible child,
19-21 or an eligible parent, the member's DROP account balance shall be
19-22 distributed in accordance with the member's beneficiary designation
19-23 filed with the board or, if the member has failed to file a valid
19-24 beneficiary designation, to the member's estate; and
19-25 (6) if a member's spouse described by Subdivision (1)
19-26 of this subsection was not married to the member on the date the
19-27 member's DROP election became effective, the spouse shall receive a
20-1 reduced benefit equal to the benefit otherwise payable to the
20-2 surviving spouse under this subsection, multiplied by the
20-3 percentage of the period between the member's DROP election and the
20-4 date the member left active service during which the spouse and the
20-5 member were married, and the amount by which the spouse's benefit
20-6 is reduced shall be divided among any other eligible survivors as
20-7 if the member did not have an eligible spouse.
20-8 (m) An eligible beneficiary's share of a deceased member's
20-9 DROP account shall be distributed as soon as administratively
20-10 practicable after the member's death in the form of a single
20-11 lump-sum payment. All distributions to beneficiaries under this
20-12 subsection must be made in a manner and at a time that comply with
20-13 Section 401(a)(9) of the code.
20-14 (n) Except as otherwise provided by this subsection, a
20-15 member who participates in the DROP is ineligible for disability
20-16 benefits described by Section 6 of this article, and the member's
20-17 survivors are ineligible to receive enhanced death benefits
20-18 described by Section 7(c) of this article. A DROP participant who
20-19 is determined under Section 6(c) of this article to be incapable of
20-20 performing any substantial gainful employment because of an on-duty
20-21 disability may retroactively revoke the member's DROP election if
20-22 the revocation occurs before the member receives a distribution
20-23 from the member's DROP account or retirement benefits. If a DROP
20-24 participant dies in the course of the performance of the member's
20-25 duty or dies as a result of an on-duty disability described by
20-26 Section 6(c) of this article, the DROP participant's eligible
20-27 survivors under Section 7 of this article and the member's eligible
21-1 DROP beneficiaries under Subsection (l) of this section may, by
21-2 unanimous agreement, retroactively revoke the member's DROP
21-3 election if the revocation occurs before receipt of a distribution
21-4 from the member's DROP account, service pension benefits under
21-5 Section 4 of this article, or death benefits under Section 7 of
21-6 this article. For purposes of this subsection, an on-duty
21-7 disability must have occurred after the effective date of a
21-8 member's election to participate in the DROP. If a DROP election
21-9 revocation is made as prescribed by this subsection, the member's
21-10 DROP account is not distributed, and the member or the member's
21-11 beneficiary, as applicable, is entitled to benefits under this
21-12 article as if a DROP election had not been made.
21-13 (o) A retired member who previously participated in the DROP
21-14 and who returns to active service is subject to the terms of this
21-15 section in effect at the time of the member's return to active
21-16 service.
21-17 (p) After August 31, 2000, the board may set a date after
21-18 which additional members will not be allowed to elect to
21-19 participate in the DROP. A member whose election to participate in
21-20 the DROP becomes effective before a deadline established by the
21-21 board is entitled to continue participating in the DROP.
21-22 Sec. 6. DISABILITY PENSION BENEFITS. (a) If the board
21-23 determines that a member has suffered an on-duty disability, the
21-24 member is entitled to an on-duty disability pension as provided by
21-25 this section in lieu of any other benefit under this article.
21-26 (b) If the board determines that a member is not capable of
21-27 performing the usual and customary duties of the member's
22-1 classification or position because of the member's on-duty
22-2 disability, the member is entitled to receive a monthly disability
22-3 pension, beginning on the effective date of the member's
22-4 termination of active service, in an amount equal to the greater
22-5 of:
22-6 (1) 50 percent of the member's average monthly salary;
22-7 or
22-8 (2) the service pension the member would have been
22-9 entitled to receive under Section 4 of this article based on years
22-10 of participation as of the effective date of the member's
22-11 termination of active service.
22-12 (c) If the board determines that a member is not capable of
22-13 performing any substantial gainful activity because of the member's
22-14 on-duty disability, the member is entitled to receive a monthly
22-15 disability pension, beginning on the effective date of the member's
22-16 termination of active service, in an amount equal to the greater
22-17 of:
22-18 (1) 75 percent of the member's average monthly salary;
22-19 or
22-20 (2) the service pension the member would have been
22-21 entitled to receive under Section 4 of this article based on years
22-22 of participation on the effective date of the member's termination
22-23 of active service.
22-24 (d) If a full-time active member with at least six years of
22-25 service becomes disabled or dies from heart or lung disease or
22-26 cancer, and the member successfully passed a physical examination
22-27 before the claimed disability or death or on beginning employment
23-1 as a firefighter, and the examination failed to reveal any evidence
23-2 of the heart or lung disease or cancer, that condition will be
23-3 presumed to have caused an on-duty disability for purposes of
23-4 determining eligibility for disability benefits under this section,
23-5 and the amount of the disability benefit constitutes the pension
23-6 amount that shall be used to determine the death benefit payable
23-7 with respect to that member. Another statutory presumption
23-8 regarding the cause of illnesses or conditions does not affect any
23-9 benefit payable under this article.
23-10 (e) If the board determines that a member is not capable of
23-11 performing the usual and customary duties of the member's
23-12 classification or position because of the member's off-duty
23-13 disability, the member is entitled to an off-duty disability
23-14 pension in lieu of any other benefit under this article. If the
23-15 board makes that determination, the member is entitled to receive a
23-16 monthly disability pension, beginning on the effective date of the
23-17 member's termination of active service, in an amount equal to the
23-18 greater of:
23-19 (1) 25 percent of the member's average monthly salary,
23-20 plus 2-1/2 percent of the member's average monthly salary for each
23-21 full year of participation in the fund, except that the total
23-22 monthly disability pension under this subdivision may not exceed 50
23-23 percent of the member's average monthly salary; or
23-24 (2) the service pension the member would have been
23-25 entitled to receive under Section 4 of this article based on years
23-26 of participation on the effective date of the member's termination
23-27 of active service.
24-1 (f) A member is not eligible for an on-duty or off-duty
24-2 disability pension as provided by this section if the member's
24-3 on-duty or off-duty disability is a direct and proximate result of
24-4 a condition that existed on the date the member began membership in
24-5 the fund. In that event, if the member is not eligible to receive
24-6 a service pension under Section 4 of this article, the member may
24-7 elect any deferred pension or refund of contributions for which the
24-8 member is eligible under Section 8 of this article. A member has a
24-9 preexisting condition under this subsection if the board determines
24-10 that the member had:
24-11 (1) symptoms that would cause an ordinarily prudent
24-12 person to seek diagnosis, care, or treatment during the five-year
24-13 period before the effective date of the member's membership in the
24-14 fund; or
24-15 (2) a condition for which medical advice or treatment
24-16 was recommended by or received from a physician during the
24-17 five-year period before the effective date of the member's
24-18 membership in the fund.
24-19 (g) A person may not receive an on-duty or off-duty
24-20 disability pension from the fund unless the person or the person's
24-21 legal representative files with the board an application for
24-22 disability benefits, in the form approved by the board, and
24-23 certificates of the member's disability signed and sworn to by the
24-24 member and the member's physician or by a physician selected by the
24-25 board. The board may require other or additional evidence of
24-26 disability before authorizing payment of disability pension
24-27 benefits.
25-1 (h) The board shall make all determinations concerning
25-2 benefits under this section in accordance with uniform principles
25-3 consistently applied on the basis of medical or other evidence that
25-4 the board determines is necessary or desirable.
25-5 Sec. 7. DEATH BENEFITS. (a) If a member dies who is
25-6 eligible to receive a service pension under Section 4 of this
25-7 article, a disability pension under Section 6 of this article, or a
25-8 deferred pension under Section 8(a) of this article, or who is
25-9 receiving those benefits, the member's eligible survivors are
25-10 entitled to death benefits as follows:
25-11 (1) if the member is survived by both an eligible
25-12 spouse and one or more eligible children, the eligible spouse is
25-13 entitled to receive a monthly death benefit equal to one-half of
25-14 the amount the member would have been entitled to receive, and the
25-15 surviving eligible children are entitled to receive a monthly death
25-16 benefit equal to the remainder of the amount the member would have
25-17 been entitled to receive, divided equally among the eligible
25-18 children;
25-19 (2) if the member is not survived by an eligible
25-20 child, or if at any time after the death of the member an eligible
25-21 child is not entitled to a benefit, the monthly death benefit to be
25-22 paid the eligible spouse is equal to the full amount the member
25-23 would have been entitled to receive;
25-24 (3) if the member is not survived by an eligible
25-25 spouse, or if the member's eligible spouse dies after being
25-26 entitled to a death benefit under this section, the surviving
25-27 eligible children are entitled to receive a monthly death benefit
26-1 equal to the full monthly pension benefit the member would have
26-2 been entitled to receive, divided equally among the member's
26-3 eligible children then living; and
26-4 (4) if the member is not survived by an eligible
26-5 spouse or an eligible child, a monthly death benefit equal to the
26-6 full monthly pension benefit the member would have been entitled to
26-7 receive shall be divided among the eligible parents of the deceased
26-8 member.
26-9 (b) If a member's eligible spouse was married to the member
26-10 for less than five years and was not married to the member at the
26-11 time the member left active service, the eligible spouse shall be
26-12 paid a reduced benefit equal to the benefit otherwise payable to
26-13 the eligible spouse under this section, multiplied by the time the
26-14 eligible spouse was married to the member, and divided by five
26-15 years. The amount by which the eligible spouse's benefit is
26-16 reduced shall be divided among any other eligible survivors as if
26-17 the member did not have an eligible spouse.
26-18 (c) Notwithstanding any other provision of this section, if
26-19 a member dies in the course of the performance of the member's
26-20 duties as a firefighter or suffers an on-duty disability and dies
26-21 as a result of the bodily injuries that caused the on-duty
26-22 disability, death benefits based on the member's service shall be
26-23 computed on the basis of a benefit equal to 100 percent of the
26-24 deceased member's average monthly salary.
26-25 (d) If a member dies after benefit payments have begun or at
26-26 a time the member could have terminated active service and elected
26-27 to receive a service pension or deferred pension immediately, the
27-1 death benefits payable under this section shall begin or continue
27-2 effective as of the member's date of death. If a member who is not
27-3 entitled to receive any monthly pension benefit under this article
27-4 other than a deferred pension under Section 8(a) of this article
27-5 dies before age 50, any monthly death benefits payable under this
27-6 section shall begin on the date the deceased member would have
27-7 reached age 50.
27-8 (e) In addition to the monthly death benefit provided under
27-9 Subsection (a) of this section, if an active member or a member
27-10 receiving a service pension under Section 4 of this article or a
27-11 disability pension under Section 6 of this article dies on or after
27-12 July 1, 1998, the member's eligible survivors are entitled to a
27-13 one-time $5,000 death benefit, payable as a lump sum as follows:
27-14 (1) if the member is survived by an eligible spouse,
27-15 the eligible spouse is entitled to receive $5,000;
27-16 (2) if the member is not survived by an eligible
27-17 spouse, the member's eligible children are entitled to receive
27-18 $5,000, divided equally among those children; or
27-19 (3) if the member is not survived by an eligible
27-20 spouse or an eligible child, the $5,000 death benefit shall be
27-21 divided equally among the parents of the deceased member.
27-22 (f) A member in active service who dies, for purposes of
27-23 Subsection (a) of this section, shall be treated as having become
27-24 disabled because of the member's cause of death on the date of the
27-25 member's death.
27-26 (g) If a member in active service dies and does not leave an
27-27 eligible survivor, or the eligible survivors unanimously elect such
28-1 a benefit in lieu of any other death benefit, a lump-sum benefit
28-2 shall be paid in an amount equal to the refund, if any, to which
28-3 the member would have been entitled under Section 8 of this article
28-4 had the member terminated service on the date of the member's
28-5 death. That lump-sum benefit shall be paid to the eligible
28-6 survivors as provided by Subsection (a) of this section or, if
28-7 there are not any eligible survivors, to the member's designated
28-8 beneficiary. A member's beneficiary must be designated before the
28-9 member's death on a form approved by the board. If more than one
28-10 beneficiary is designated, the benefit shall be divided equally
28-11 among the beneficiaries unless a different allocation is provided
28-12 in the designation. If a member fails to properly designate a
28-13 beneficiary, the benefit provided by this subsection shall be
28-14 payable to the member's estate on application by the estate. Money
28-15 payable under this subsection may not escheat to the state.
28-16 (h) Death benefits are not payable under this article,
28-17 including benefits to any survivor, based on a member's service if
28-18 the board determines that the member's death resulted from suicide
28-19 or attempted suicide that occurred before the member completed two
28-20 years of participation or that the member's death resulted from a
28-21 disability arising out of an attempted suicide that occurred before
28-22 the member completed two years of participation.
28-23 (i) A benefit payable under this section to a member's
28-24 eligible child ceases when the child ceases to be an eligible
28-25 child.
28-26 (j) An eligible spouse is entitled to receive or continue to
28-27 receive survivor benefits on remarriage, except that a person who
29-1 is an eligible spouse of more than one member is entitled to
29-2 receive survivor benefits as the eligible spouse of only the member
29-3 whose survivor benefits provide the highest benefit to that
29-4 eligible spouse.
29-5 Sec. 8. DEFERRED PENSION AT AGE 50; REFUND OF CONTRIBUTIONS.
29-6 (a) A member who terminates active service for any reason other
29-7 than death with at least 10 years of participation, but less than
29-8 20 years of participation, is entitled to a monthly deferred
29-9 pension benefit, beginning at age 50, in an amount equal to 1.7
29-10 percent of the member's average monthly salary multiplied by the
29-11 amount of the member's years of participation.
29-12 (b) In lieu of the deferred pension benefit provided under
29-13 Subsection (a) of this section, a member who terminates active
29-14 service for any reason other than death with at least 10 years of
29-15 participation, but less than 20 years of participation, may elect
29-16 to receive a lump-sum refund of the member's contributions to the
29-17 fund with interest computed at five percent, not compounded. A
29-18 member's election to receive a refund of contributions must be made
29-19 on a form approved by the board. The member's refund shall be paid
29-20 as soon as administratively practicable after the member's election
29-21 is received.
29-22 (c) A member who terminates employment for any reason other
29-23 than death before the member has completed 10 years of
29-24 participation is entitled only to a refund of the member's
29-25 contributions without interest and is not entitled to a deferred
29-26 pension benefit under this section or to any other benefit under
29-27 this article. The member's refund shall be paid as soon as
30-1 administratively practicable after the effective date of the
30-2 member's termination of active service.
30-3 Sec. 9. PROOF OF CONTINUED DISABILITY. (a) The board may
30-4 at any time require a person receiving a disability pension or
30-5 receiving death benefits as a disabled child under this article to
30-6 undergo a medical examination by a physician appointed or selected
30-7 by the board for that purpose.
30-8 (b) A person retired for disability under Section 6(c) of
30-9 this article or a person receiving death benefits as a disabled
30-10 child under Section 7 of this article must file an annual report of
30-11 employment activities and earnings with the board. The board shall
30-12 establish the form of the report and the time for filing the
30-13 report.
30-14 (c) The result of the examination, the report by the
30-15 physician, and the report of employment activities and earnings
30-16 shall be considered by the board in determining whether the relief
30-17 in the case shall be continued, increased if less than the maximum
30-18 provided, decreased, or discontinued. The board may reduce or
30-19 entirely discontinue all benefits to a person receiving benefits
30-20 under this article who, after notice from the board, fails to
30-21 appear for a required medical examination or fails to file the
30-22 report of employment activities and earnings.
30-23 Sec. 10. NONSTATUTORY BENEFIT INCREASES. The benefits
30-24 provided by this article may be increased if:
30-25 (1) the increase is first approved by an actuary
30-26 selected by the board who, if an individual, is a Fellow of the
30-27 Society of Actuaries, a Fellow of the Conference of Actuaries in
31-1 Public Practice, or a member of the American Academy of Actuaries;
31-2 (2) a majority of the participating members of the
31-3 fund vote for the increase by a secret ballot;
31-4 (3) the increase does not deprive a member, without
31-5 the member's written consent, of a right to receive benefits that
31-6 have already become fully vested and matured in a member; and
31-7 (4) the State Pension Review Board approves the
31-8 increase, which approval may not be unreasonably withheld.
31-9 Sec. 11. GENERAL PROVISIONS FOR CALCULATION AND PAYMENT OF
31-10 BENEFITS. (a) A member, eligible survivor, or beneficiary of a
31-11 member is not entitled to receive payments from a fund under more
31-12 than one section of this article in a particular capacity.
31-13 However, a person may be entitled to benefits both as a member and
31-14 as a survivor or beneficiary of another member.
31-15 (b) After a member terminates active service, the amounts of
31-16 all benefits that the member or the member's beneficiaries may
31-17 become entitled to receive from the fund shall be computed on the
31-18 basis of the schedule of benefits in effect for the fund on the
31-19 effective date of the termination of the member's active service,
31-20 without adjustment for any subsequent increases of benefits unless
31-21 those increases are expressly made applicable to previously retired
31-22 members or their beneficiaries.
31-23 (c) The benefits, including survivor benefits, payable based
31-24 on the service of a member who completed 30 or more years of
31-25 participation, is or would have been at least 50 years old, or
31-26 received or is receiving an on-duty disability pension under
31-27 Section 6(c) of this article shall be increased by three percent in
32-1 October of each year and, if the benefit had not previously been
32-2 subject to that adjustment, in the month of the member's 50th
32-3 birthday.
32-4 (d) In computing a member's years of participation, time
32-5 served in the armed forces of the nation during war or national
32-6 emergency is considered continuous service. Except for that
32-7 military service, credit for prior service shall be given only if a
32-8 member returns to active service as a firefighter before the fifth
32-9 anniversary of a previous effective date of termination.
32-10 (e) A retired firefighter may be recalled to duty by the
32-11 chief of the fire department in case of great conflagration and
32-12 shall perform those duties the chief directs but does not have a
32-13 claim against a municipality or the fund of that municipality for
32-14 payment for the duty performed.
32-15 (f) A member, eligible survivor, or beneficiary who is
32-16 entitled to receive a benefit payment under this article is
32-17 entitled to receive the benefit beginning on the date the member
32-18 ceases to carry out the member's regular duties as a firefighter,
32-19 notwithstanding the fact that the member may remain on the payroll
32-20 of the member's fire department or receive sick leave, vacation, or
32-21 other pay after the effective date of termination of the member's
32-22 regular duties as a firefighter. If there is a delay in beginning
32-23 payment of benefits resulting from the requirements of Section 6(g)
32-24 of this article for disability pensions, the member or beneficiary
32-25 shall, when the disability pension is approved by the board, be
32-26 paid the full amount of the disability pension that has accrued
32-27 since the effective date of termination of the member's regular
33-1 duties as a firefighter.
33-2 (g) A member may designate a trustee to receive the benefit
33-3 payable to any eligible survivor or beneficiary other than the
33-4 member's eligible spouse or a spouse eligible to receive a benefit
33-5 under the DROP. Any such designation must be made on a form
33-6 approved by the board.
33-7 (h) A benefit payable under this article to a minor may be
33-8 made only to the guardian of the estate of the minor. If a benefit
33-9 becomes payable to any other person under a legal disability,
33-10 payment of that benefit may be made only to the conservator or the
33-11 guardian of that person's estate appointed by a court of competent
33-12 jurisdiction. A payment made in accordance with this section on
33-13 behalf of a minor or other person under a legal disability fully
33-14 discharges the fund's obligation to that person.
33-15 (i) Notwithstanding any other provision of this article, a
33-16 person entitled to receive benefit payments from the fund may:
33-17 (1) make a one-time election to receive a smaller
33-18 pension or survivor benefit than is otherwise provided under this
33-19 article;
33-20 (2) make a one-time election not to receive any future
33-21 annual increases in the pension or survivor benefits received by
33-22 the person or the person's beneficiary; or
33-23 (3) make a one-time election not to receive a specific
33-24 benefit enhancement.
33-25 (j) An election under Subsection (i) of this section must be
33-26 made in writing and submitted to the board for approval. On the
33-27 date the board grants approval of an election under Subsection (i)
34-1 of this section, the election becomes irrevocable.
34-2 (k) A benefit under this article may not be integrated with
34-3 benefits payable under the federal Social Security Act. In a
34-4 municipality in which firefighters are eligible to enroll for or
34-5 receive retirement benefits under the Social Security Act, benefits
34-6 that may be available to a member under the Social Security Act may
34-7 not be taken into account in determining the amount of benefits a
34-8 member may receive under this article.
34-9 (l) If the board determines that the amount in the fund is
34-10 insufficient to pay in full any pension or disability benefits, all
34-11 pension and disability benefits made after the date of the
34-12 determination shall be reduced pro rata for the period the
34-13 insufficiency exists.
34-14 (m) A benefit payable under this article because of the
34-15 death of a member or eligible beneficiary may not be paid to a
34-16 person convicted of causing that death but instead shall be paid as
34-17 if the convicted person predeceased the deceased member or
34-18 beneficiary. If no beneficiary is entitled to the benefit as a
34-19 result, the benefit shall be paid to the decedent's estate. Except
34-20 as otherwise permitted by this subsection with respect to
34-21 suspension of benefits, the board is not required to withhold
34-22 payment to a person convicted of causing the death of a member or
34-23 eligible beneficiary until the board receives actual notice of the
34-24 conviction of that person. The board may suspend payment of a
34-25 benefit payable on the death of a member or an eligible beneficiary
34-26 on the indictment of the person who would otherwise be entitled to
34-27 the benefit, and the suspension remains in effect until the board
35-1 determines that a final disposition of the charges relating to the
35-2 cause of death has occurred. If a benefit payment is suspended
35-3 under this subsection and the person is not convicted, the benefit
35-4 again becomes payable with interest computed at the rate earned by
35-5 the fund during the time the benefit payment was suspended. For
35-6 purposes of this subsection, a person has been convicted of causing
35-7 the death of a member or eligible beneficiary if:
35-8 (1) the person has pleaded guilty or nolo contendere
35-9 to, or the person has been found guilty by a court of, an offense
35-10 at the trial of which it is established that the person's
35-11 intentional or knowing act or omission caused the death of the
35-12 member or eligible beneficiary, regardless of whether sentence is
35-13 imposed or probated; and
35-14 (2) an appeal of the conviction is not pending, and
35-15 the time provided for appeal has expired.
35-16 Sec. 12. APPEALS OF BENEFIT DECISIONS. (a) A member who is
35-17 eligible for retirement for length of service or disability or who
35-18 has a claim for temporary disability, or any of the member's
35-19 beneficiaries, who is aggrieved by a decision or order of the
35-20 board, whether on the basis of rejection of a claim or of the
35-21 amount allowed, may appeal from the decision or order of the board
35-22 to a district court in the county in which the board is located by
35-23 giving written notice of the intention to appeal. The notice must
35-24 contain a statement of the intention to appeal, together with a
35-25 brief statement of the grounds and reasons the party feels
35-26 aggrieved. The notice must be served personally on the chair,
35-27 secretary, or treasurer of the board not later than the 20th day
36-1 after the date of the order or decision. After service of the
36-2 notice, the party appealing shall file with the district court a
36-3 copy of the notice of intention to appeal, together with the
36-4 affidavit of the party making service showing how, when, and on
36-5 whom the notice was served.
36-6 (b) Not later than the 30th day after the date of service of
36-7 the notice of intention to appeal on the board, the secretary or
36-8 treasurer of the board shall file with the district court a
36-9 transcript of all papers and proceedings in the case before the
36-10 board. When the copy of the notice of intention to appeal and the
36-11 transcript have been filed with the court, the appeal is considered
36-12 perfected, and the court shall docket the appeal, assign the appeal
36-13 a number, fix a date for hearing the appeal, and notify both the
36-14 appellant and the board of the date fixed for the hearing.
36-15 (c) At any time before issuing a decision on the appeal, the
36-16 court may require further or additional proof or information,
36-17 either documentary or under oath. On issuing a decision on the
36-18 appeal, the court shall give to each party to the appeal a copy of
36-19 the decision and shall direct the board as to the disposition of
36-20 the case. The final decision or order of the district court is
36-21 appealable in the same manner as are civil cases generally.
36-22 Sec. 13. MEMBERSHIP AND CONTRIBUTIONS. (a) Each person who
36-23 becomes a firefighter before age 36 becomes a member of the fund if
36-24 the person's application for membership is accepted by the board.
36-25 In accepting employment as a firefighter, and on becoming a member
36-26 of the fund, a firefighter agrees to make contributions required
36-27 under this article of members of the fund who are in active service
37-1 and is entitled to participate in the benefits of membership in the
37-2 fund as provided by this article.
37-3 (b) The board shall establish minimum physical requirements
37-4 for membership in the fund that may not exceed the physical
37-5 requirements established by the Fire Fighters' and Police Officers'
37-6 Civil Service Commission under Section 143.022, Local Government
37-7 Code, and that must be the same for all applicants. At the time
37-8 that physical examinations are administered on behalf of the
37-9 municipality, each applicant must be provided written notice that a
37-10 copy of the results of the examination will be forwarded to the
37-11 board to determine eligibility for membership in the fund and the
37-12 existence of any preexisting condition. Not later than the 10th
37-13 day after the date of a physical examination performed on an
37-14 applicant for a beginning position in the fire department as
37-15 required by Section 143.022, Local Government Code, the
37-16 municipality shall provide to the board a copy of all documents
37-17 resulting from the physical examination. The board may require
37-18 additional physical examinations if necessary to determine whether
37-19 the applicant meets the minimum physical requirements for
37-20 membership in the fund. The fund shall pay the cost of any
37-21 additional physical examination the board requires. Within a
37-22 reasonable time after receiving the examination reports of an
37-23 applicant, the board shall, on the basis of one or more physical
37-24 examinations, determine whether the applicant meets the minimum
37-25 physical requirements for membership in the fund. The board shall
37-26 notify the applicant and the chief of the fire department not later
37-27 than the 10th calendar day after the date of the board's decision
38-1 on the applicant's satisfaction of the minimum physical
38-2 requirements. If the board rejects the applicant, the applicant
38-3 may request further examination by a board of three physicians
38-4 appointed by the board at the expense of the applicant. If a
38-5 physician board finds that an applicant meets the minimum physical
38-6 requirements for membership in the fund, the board shall accept the
38-7 applicant for membership. If accepted by the board, the
38-8 applicant's membership in the fund is effective on being appointed
38-9 to the position of probationary firefighter.
38-10 (c) Each member in active service shall make contributions
38-11 to the fund in an amount equal to 7.7 percent of the member's
38-12 salary at the time of the contribution. The governing body of the
38-13 municipality shall deduct the contributions from the member's
38-14 salary and shall forward the contributions to the fund as soon as
38-15 practicable.
38-16 (d) The municipality shall make monthly contributions to the
38-17 fund in an amount equal to the product of the contribution rate
38-18 certified by the board and the aggregate salaries paid to members
38-19 of the fund during the month for which the contribution is made.
38-20 The board shall certify the municipality's contribution rate for
38-21 each year or portion of a year based on the results of actuarial
38-22 valuations made at least every three years. The municipality's
38-23 contribution rate shall be composed of the normal cost plus the
38-24 level percentage of salary payment required to amortize the
38-25 unfunded actuarial liability over a period of 40 years beginning on
38-26 January 1, 1983, computed on the basis of an acceptable actuarial
38-27 reserve funding method approved by the board. Notwithstanding any
39-1 other provision of this article, the contributions by the
39-2 municipality, when added to any contributions with respect to a
39-3 qualified governmental excess benefit arrangement maintained in
39-4 accordance with Section 14(c) of this article, may not be less than
39-5 twice the amount paid into the fund by contributions of the
39-6 members.
39-7 (e) Notwithstanding Subsection (d) of this section, if one
39-8 or more members of the fund are appointed to positions in the fire
39-9 department, and those appointments are not made based on the
39-10 results of a competitive examination, the minimum contribution rate
39-11 required of the municipality for any year is increased by an amount
39-12 equal to the difference, if any, between:
39-13 (1) the municipality's actuarially determined
39-14 contribution rate computed in accordance with Subsection (d) of
39-15 this section, without regard to the minimum contribution rate
39-16 specified, computed based on the actual monthly salary or
39-17 compensation for all members; and
39-18 (2) the municipality's actuarially determined
39-19 contribution rate computed in accordance with Subsection (d) of
39-20 this section, without regard to the minimum contribution rate
39-21 specified, but for each member so appointed, computed based, for
39-22 all months of participation after the date of appointment, on the
39-23 monthly salary or compensation being paid to the person who holds
39-24 the position the member held immediately before the member was
39-25 appointed to the new position.
39-26 (f) Money deducted from salaries or compensation as provided
39-27 by this section and the payments and contributions provided by this
40-1 section become a part of the fund of the municipality in which the
40-2 contributing member serves at the time of the contribution. In
40-3 accordance with Section 14(c) of this article, contributions under
40-4 any qualified governmental excess benefit arrangement do not become
40-5 part of the trust fund assets of the fund.
40-6 (g) On action of its governing body, a municipality may pick
40-7 up members' contributions prescribed under Subsection (c) of this
40-8 section for purposes of Section 414(h)(2) of the code. A member's
40-9 salary is affected by this subsection only as this subsection
40-10 relates to the computation of pension contributions and gross pay
40-11 for federal tax purposes. The computation of pension benefits,
40-12 severance pay, and other benefits is not affected.
40-13 (h) If the municipality's actuarially determined
40-14 contribution rate computed in accordance with Subsection (d) of
40-15 this section would exceed the minimum contribution rate specified,
40-16 the benefits payable under Sections 4(d), 4(e), and 7(e) of this
40-17 article may not be paid, an eligible spouse whose benefit is
40-18 reduced under Section 7(b) of this article may not be paid a
40-19 benefit if there are no other eligible survivors, and the
40-20 municipality's actuarially determined contribution rate shall be
40-21 recomputed on the basis of the assumption that those benefits are
40-22 suspended indefinitely. If the recomputation results in an
40-23 actuarially determined contribution rate less than the minimum
40-24 contribution rate specified, a portion of the benefits shall be
40-25 paid, as determined by the board, to the extent that, with the
40-26 payments determined, the two contribution rates are equal. This
40-27 subsection expires July 31, 1999, unless on that date the
41-1 municipality's actuarially determined contribution rate computed in
41-2 accordance with Subsection (d) of this section would exceed the
41-3 minimum contribution rate specified.
41-4 Sec. 14. INTERNAL REVENUE CODE LIMITATIONS. (a)
41-5 Notwithstanding any other provision of this article, a member may
41-6 not accrue a benefit or allowance under this article in excess of
41-7 an amount that, when added to all other pension benefits received
41-8 under plans of the municipality that are qualified under Section
41-9 401 of the code, results in an annual benefit in excess of the
41-10 applicable limits provided by Section 415 of the code. That
41-11 accrual limitation applies only as long as satisfaction of Section
41-12 415 of the code is necessary to maintain the tax-qualified status
41-13 of the fund under Section 401 of the code. Any benefit accruals
41-14 limited under this subsection must be certified by a qualified
41-15 actuary selected by the board.
41-16 (b) Notwithstanding any other provision of this article, the
41-17 fund shall be administered in a manner that complies with the code,
41-18 United States Treasury Department regulations, and Internal Revenue
41-19 Service rulings and notices applicable to public retirement
41-20 systems. The board shall adopt rules and amend or repeal
41-21 conflicting rules to ensure compliance with this subsection.
41-22 (c) The board may establish and maintain a qualified
41-23 governmental excess benefit arrangement, in accordance with Section
41-24 415(m) of the code, solely for the purpose of providing to members
41-25 the amount of each member's pension benefit otherwise payable under
41-26 the fund that exceeds the limitations on benefits imposed by
41-27 Section 415 of the code. The board may maintain a separate trust
42-1 solely for providing benefits under the arrangement or may maintain
42-2 the arrangement on an unfunded basis through municipal
42-3 contributions as benefits become payable. Benefits provided by
42-4 that arrangement may not be paid from the trust fund assets that
42-5 are available for payment of any other benefit under this article.
42-6 Benefits under any qualified governmental excess benefit
42-7 arrangement shall be paid or funded entirely through municipal
42-8 contributions in an amount approved by the board. An election may
42-9 not be provided at any time to a member, directly or indirectly, to
42-10 defer compensation under the arrangement. The operation and
42-11 administration of any qualified governmental excess benefit
42-12 arrangement is the responsibility of the board, which has the same
42-13 powers concerning the arrangement as are provided to the board
42-14 under this article concerning the fund.
42-15 Sec. 15. EXEMPTION OF BENEFITS FROM JUDICIAL PROCESS. The
42-16 fund may not, either before or after its order of disbursement by
42-17 the board to a member, a spouse eligible to receive a benefit under
42-18 the DROP, an eligible spouse, the guardian of an eligible child, or
42-19 an eligible parent, be held, seized, subjected to, or levied on by
42-20 virtue of any execution, attachment, garnishment, injunction, or
42-21 other writ, order, or decree, or any process issued out of, or by,
42-22 any court for the payment or satisfaction of any debt, damage,
42-23 claim, demand, or judgment against a member, a spouse eligible to
42-24 receive a benefit under the DROP, an eligible spouse, the guardian
42-25 of an eligible child, or an eligible parent. The fund or any claim
42-26 against the fund may not be directly or indirectly assigned or
42-27 transferred, and any attempt to assign or transfer the fund or a
43-1 claim is void. The fund shall be sacredly held, kept, and
43-2 disbursed only for the purposes provided by this article.
43-3 Sec. 16. SERVICE CREDIT FOR MEMBERS PREVIOUSLY MEMBERS OF
43-4 SIMILAR FUNDS. (a) A person who becomes a firefighter in a
43-5 municipality to which this article applies may receive service
43-6 credit for prior employment with the fully paid fire department of
43-7 another municipality in this state with a similar fund benefiting
43-8 only firefighters of that municipality to which the firefighter
43-9 contributed if:
43-10 (1) the firefighter is under 36 years of age at the
43-11 time of applying to the fund;
43-12 (2) the firefighter passes a physical examination
43-13 taken at the firefighter's expense and performed by a physician
43-14 selected by the board;
43-15 (3) the firefighter pays into the fund an amount equal
43-16 to the total contribution the firefighter would have made had the
43-17 firefighter been employed by the municipality, at the
43-18 municipality's pay scale, instead of the municipality by which the
43-19 firefighter was previously employed, plus six percent interest,
43-20 compounded annually;
43-21 (4) the firefighter applies for that credit not later
43-22 than the 60th day after the date on which membership begins; and
43-23 (5) the firefighter has moved directly into employment
43-24 at the fire department from the fire department for which the prior
43-25 service credit is sought, without any intervening employment or
43-26 extended interruption.
43-27 (b) A member may receive credit for prior service in more
44-1 than one fire department under Subsection (a) of this section only
44-2 if there have not been interruptions in employment and each
44-3 preceding service meets the other requirements of Subsection (a) of
44-4 this section.
44-5 (c) The municipality to which the member has transferred
44-6 shall pay an amount equal to the amount it would have paid had the
44-7 member been employed by that municipality instead of the
44-8 municipality by which the firefighter was previously employed,
44-9 based on the municipality's pay scale, plus six percent interest,
44-10 compounded annually. Both the municipality's contribution and the
44-11 member's contribution must be paid promptly on approval of the
44-12 member's application for service credit.
44-13 (d) A firefighter may not participate under this section in
44-14 the fund of the municipality to which the firefighter has
44-15 transferred until the firefighter has fully complied with this
44-16 article and the municipality has complied with Subsection (c) of
44-17 this section.
44-18 (e) A firefighter eligible for prior service credit may
44-19 participate in the fund, subject to the other requirements of this
44-20 article, without obtaining that credit, and if the firefighter does
44-21 not comply with the provisions and time limits of this section, the
44-22 firefighter is ineligible for the credit.
44-23 Sec. 17. CONFIDENTIALITY OF INFORMATION ABOUT MEMBERS OR
44-24 BENEFICIARIES. (a) Information contained in records that are in
44-25 the custody of a fund established under this article concerning an
44-26 individual member, retiree, or beneficiary is confidential under
44-27 Chapter 552, Government Code, and may not be disclosed in a form
45-1 identifiable with a specific individual unless:
45-2 (1) the information is disclosed to:
45-3 (A) the individual;
45-4 (B) the individual's attorney, guardian,
45-5 executor, administrator, or conservator, or other person who the
45-6 board determines is acting in the interest of the individual or the
45-7 individual's estate;
45-8 (C) a spouse or former spouse of the individual
45-9 if the board determines that the information is relevant to the
45-10 spouse's or former spouse's interest in member accounts, benefits,
45-11 or other amounts payable by the fund; or
45-12 (D) a person with written authorization from the
45-13 individual to receive the information; or
45-14 (2) the information is disclosed under an
45-15 authorization of the board that specifies the reason for the
45-16 disclosure.
45-17 (b) This section does not prevent the disclosure of the
45-18 status or identity of an individual as a member, former member,
45-19 retiree, deceased member, or beneficiary of the fund.
45-20 (c) A determination and disclosure under Subsection (a)(2)
45-21 of this section may be made without notice to the individual
45-22 member, retiree, or beneficiary.
45-23 SECTION 2. (a) Article 6243e.2(1), Revised Statutes, as
45-24 added by this Act, restates and amends Chapter 432, Acts of the
45-25 64th Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil
45-26 Statutes), as that law existed before repeal by this Act, and
45-27 continues in effect each firemen's relief and retirement fund
46-1 established under that law.
46-2 (b) Notwithstanding Article 6243e.2(1), Revised Statutes, as
46-3 added by this Act, a member of the board of trustees of a
46-4 firefighters' relief and retirement fund in a municipality to which
46-5 that article applies serving on October 31, 1997, continues to
46-6 serve until the expiration of the term for which the member was
46-7 elected or appointed under Chapter 432, Acts of the 64th
46-8 Legislature, 1975 (Article 6243e.2, Vernon's Texas Civil Statutes),
46-9 as that law existed before repeal by this Act, and that law is
46-10 continued in effect for that purpose.
46-11 SECTION 3. Chapter 432, Acts of the 64th Legislature, 1975
46-12 (Article 6243e.2, Vernon's Texas Civil Statutes), is repealed.
46-13 SECTION 4. This Act takes effect November 1, 1997.
46-14 SECTION 5. The importance of this legislation and the
46-15 crowded condition of the calendars in both houses create an
46-16 emergency and an imperative public necessity that the
46-17 constitutional rule requiring bills to be read on three several
46-18 days in each house be suspended, and this rule is hereby suspended.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3170 was passed by the House on April
30, 1997, by a non-record vote; and that the House concurred in
Senate amendments to H.B. No. 3170 on May 21, 1997, by a non-record
vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 3170 was passed by the Senate, with
amendments, on May 19, 1997, by the following vote: Yeas 31, Nays
0.
_______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor