June 8, 2007
September 18, 2007
October 8, 2007

ORDINANCE NO. 2007-____

 

AN ORDINANCE OF THE TOWN OF MELBOURNE BEACH, BREVARD COUNTY, FLORIDA, TO THE POLICE OFFICERS’ RETIREMENT SYSTEM; AMENDING AND RESTATING SECTION 11-54, TOWN CODE, RETIREMENT; PROVIDING FOR THE POLICE OFFICERS’ RETIREMENT SYSTEM; PROVIDING DEFINITIONS; AMENDING THE POWERS OF THE BOARD OF TRUSTEES, MEMBER CONTRIBUTIONS, BENEFITS, AND DISABILITY BENEFITS; PROVIDING OPTIONAL FORMS OF BENEFITS AND FOR BENEFICIARIES; AMENDING THE MAXIMUM BENEFIT LIMITATIONS AND DIRECT TRRANSFER OF ELIBILE ROLL OVER BENEFITS; SETTING FORTH THE DISTRIBUTION OF BENEFITS, MISCELLANEOUS PROVISIONS; PROVIDING FOR THE EXEMPTION FROM EXECUTION AND NON-ASSIGNABILITY, PENSION VALIDITY, FORFEITURE OF PENSION, AND INDEMNIFICATION; PROVIDING FOR SEVERABILITY AND INTERPRETATION; PROVIDING FOR REPEAL OF ORDINANCES AND RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING AN EFFECTIVE DATE.

 

WHEREAS, the Board of Trustees has conducted a review of the Retirement plan provisions contained in the Town Code of Ordinances at Section 11-54; and

WHEREAS, the Board’s legal counsel has recommended certain changes to the Retirement plan provisions for clarity and compliance with the governing State and Federal Statutes; and

WHEREAS, the Board has determined it is in the best interest of the Participants and Beneficiaries to make such changes to the Retirement plan; and

WHEREAS, The Town Commission desires to make such changes to the Retirement

Plan.

BE IT ENACTED by the Town of Melbourne Beach, Florida:

            Section 1.      That section 11-54 of the Town Code of the Town of Melbourne Beach, Florida, is hereby amended to read as follows:

§ 11-54. RETIREMENT.

(a)         There is hereby created and established a trust fund for benefit of the police officers of the Town of Melbourne Beach to be known as the Melbourne Beach Police Officers’ Retirement System.  Effective as of August 25, 1981 and except as modified

herein, the Melbourne Beach Police Officers' Retirement System shall be as set forth under Chapter 185, Florida Statutes; provided, however, that Section 185.16, Florida Statutes, shall be superseded in its entirety by section 11-54 (d) and (e) (c) and (d).  All other provisions of Chapter 185, Florida Statutes, not amended by this section shall be applicable.

(b)        As used herein, unless otherwise defined or required by the context, the
following words and phrases shall have the meaning indicated:

(1)     Accumulated Contributions means a Member’s own contributions

to the System.

(2)        Actuarial Equivalent means a benefit or amount of equal value,

based upon  the 1983 Group Annuity Mortality Table (unisex for equivalence) and an Interest rate of eight percent (8%) per year.

(3)        Average Final Compensation means one-twelfth (1/12) of the average

annual compensation of the five (5) best years of the last ten (10) years of Credited Service prior to retirement, termination or death.

(4)        Beneficiary means the person or persons entitled to receive benefits

 hereunder at the death of a Member who has or have been designated in writing by the  Member and filed with the Board. If no such designation is in effect or if no person so  designated is living at the time of death of the Member, the Beneficiary shall be the estate  of the Member.

(5)        Board means the Board of Trustees, which shall administer and

manage the  System herein provided and serve as trustees of the Fund.

(6)        Code means the Internal Revenue Code of 1986, as amended from

time to  time.

(7)       Compensation or salary means the total cash remuneration

including  "overtime" paid by the Town to a police officer for services rendered, but not including any payments for extra duty or a special detail work performed on behalf of a second party employer.

(A)       The member's compensation or salary contributed as employee-

elective salary reductions or deferrals to any salary reduction, deferred compensation, or tax-sheltered annuity program authorized under the Internal Revenue Code shall be deemed  to be the compensation or salary the member would receive if he or she were not participating in such program and shall be treated as compensation for retirement purposes under this System.

(B)       For any person who first becomes a member in any plan year

beginning  on or after January 1, 1996, compensation for any plan year shall not include any amounts  in excess of the Internal Revenue Code s. 401(a)(17) limitation (as amended by the Omnibus Budget Reconciliation Act of 1993), which limitation of $225,000 shall be adjusted  as required by federal law for qualified government plans and shall be further adjusted for changes in the cost of living in the manner provided by Internal Revenue Code s. 401(a)(17)(B). For any person who first became a member prior to the first plan year beginning on or after January 1, 1996, the limitation on compensation shall be not less than the maximum compensation amount that was allowed to be taken into account under the plan as in effect on July 1, 1993, which limitation shall be adjusted for changes in the cost of living since 1989 in the manner provided by Internal Revenue Code s. 401 (a)(17)(1991).

(8)       Credited Service means the aggregate number of years of service

and  fractional parts of years of service of any police officer, omitting intervening years and  fractional parts of years when such police officer may not have been employed by the Town  subject to the following conditions:

(A)       No member shall receive credit for years or fractional parts of

years of service if he or she has withdrawn his or her contributions to the System for those years or fractional parts of years of service, unless the member repays into the System the amount he or she has withdrawn, plus interest as determined by the board. The member shall have at least 90 days after his or her re-employment to make repayment.

(B)       A member may voluntarily leave his or her contributions in the

fund for a period of 5 years after leaving the employ of the Department, pending the possibility of his  or her being rehired, without losing credit for the time he or she has participated actively as  a police officer. If he or she is not re-employed as a police officer with the Department within  5 years, his or her contributions shall be returned to him or her without interest.

(C)       Credited service under this section shall be provided only for

service  as a Police Officer as defined below.

                             (D)       In determining the creditable service of any member, credit for

up to 5 years of the time spent in the military service of the Armed Forces of the United States shall  be added to the years of actual service, if:

1.         The police officer is a member in the active employ of

the municipality prior to such service and leaves a position, other than a temporary position, for the purpose of voluntary or involuntary service in the Armed Forces of the United States.

2.       The police officer is entitled to re-employment

under the provisions of the Uniformed Services Employment and Re­employment Rights Act.

                                                            3.         The police officer returns to his or her employment

as a police officer of the municipality within 1 year from the date of his or her release from such active service.

(9)        Department means the Town of Melbourne Beach Police Department.

(10)      Effective Date means August 25, 1981 with a complete restatement of the

plan effective upon adoption of this Ordinance.

(11)      Fund means the trust fund established herein as part of the System.

(12)      Member means an actively employed Police Officer who fulfills the

prescribed  membership requirements. Any benefit improvements which might be made in the future shall apply prospectively and shall not apply to Members who terminate employment or who retire prior to the effective date of any ordinance adopting such benefit improvements, unless such ordinance specifically provides to the contrary.

(13)      Police Officer means any person who is elected, appointed, or

employed full time by the Town, who is certified or required to be certified as a law enforcement officer in compliance with section 943.1395, Florida Statutes, who is vested with authority to bear arms and make arrests,  and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified  supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers, but does not include part-time law enforcement officers or auxiliary law enforcement officers as the same are defined in section 943.10(6) and (8), Florida Statutes, respectively.  However, Police Chief may opt not to participate in the System.

(14)     Retiree means a member who has entered retirement status.

(15)        Retirement  means a member's separation from Town employment as a

Police Officer with immediate eligibility for receipt of benefits under the plan.

(16)          System means the Town of Melbourne Beach Police Officers’

Retirement System as contained herein and all amendments thereto.

(17)     Town means the Town of Melbourne Beach, Florida.

(c) (b)   Powers of the Board of Trustees.

(1)         Subject to the limitations of this article and Chapter 185, Florida

Statutes, the Board of Trustees shall, from time to time, establish uniform rules and regulations for the administration of Funds created by this article and for the transaction of its business. The Board of Trustees shall engage such actuarial, accounting and other similar services as shall be required to transact the business of the Retirement System. The compensation of all persons engaged by the Board of Trustees and all other expenses of the Board necessary for the operation of the Retirement System shall be paid from the Fund at such rates and in such amounts as the Board of Trustees shall determine. Funds may be disbursed by the Town Finance Department or other disbursing agent as determined by the Board, but only upon written authorization by the Board of Trustees.

             (2) (1)              The duties and responsibilities of the Board of Trustees shall include, but not necessarily be limited by the following:

(A)       To construe the provisions of the system and determine all

questions arising thereunder;

(B)          To determine all questions relating to eligibility and

participation;

(C)        To determine and certify the amount of all retirement

allowances or other benefits hereunder;

(D)To establish uniform rules and procedures to be followed

for administrative purposes, benefit applications and all matters required to administer the system;

(E)       To distribute to members, at regular intervals, information

concerning the system;

(F)           To receive and process all applications for participation and

benefits;

(G)To authorize all payments whatsoever from the Fund, and to

notify the disbursing agent, in writing, of approved benefit payments and other expenditures arising through operation of the system and Fund;

(H)       To have performed actuarial studies and actuarial valuations and

make recommendations regarding any and all changes in the provisions of the system; and

                                    (I)                     To perform such other duties as are specified in Chapter 185,

Florida Statutes.

             (3) (2)              As part of the system, there is hereby established the Fund, into which shall be deposited all of the contributions and present assets whatsoever attributable to the system and held by the System’s custodian First National Bank of Topeka as former Trustee. The actual custody and supervision of the Fund, and assets thereof, shall be vested in the Board of Trustees.

(4) (3)   The Board, in its sole discretion as to the selection, shall be required to

appoint a national or state bank with trust powers for the purpose of serving as custodian of the Board and assets of the Fund shall be promptly and continually deposited therewith. In order to fulfill its investment responsibilities as set forth herein, the Board, also in its sole discretion as to the selection, may retain the services of the Custodian Bank, an investment advisor registered under the Investment Advisors Act of 1940, an insurance company or a combination of these, for purposes of investment decisions and management. Such investment manager(s) shall have full discretion, subject to any Board guidelines as prescribed by the Board, in the investment of all Fund assets.

(5)  (4)             All Funds and securities of the system may be commingled in

the Fund, provided that accurate records are maintained at all times, reflecting the financial composition of the Fund, including accurate current accounts and entries as regards the following:

(A)        Current amounts of contributions of Members on both an individual

and aggregate account basis;

(B)       Receipts and disbursements;

(C)Benefit payments;

(D)Current amounts clearly reflecting all monies, funds and

assets whatsoever attributable to contributions and deposits from the State of Florida or the town; and

(E)       All interest, dividends and gains (or losses) whatsoever;

and

(F)        Such other entries as may be properly required so as to reflect a

clear and complete financial report of the Fund.

(6) (5)          The Board of Trustees shall have the following investment powers and authority:

(A)        The Board of Trustees shall be vested with full legal title to said

Fund, subject to the authority and power of the Town Commission to amend or terminate this Trust, provided that no amendment or Fund termination shall ever result in the use of any assets of this Fund, except for the payment of regular expenses and benefits under this system. All contributions from time to time paid into the Fund and the income thereof, without distinction between principal and income, shall be held and administered by the Board or its agent in the Fund and the Board shall not be required to segregate or invest separately any portion of the Fund.

(B)           The Fund may be invested and reinvested in such securities

or property, real or personal, wherever situated and of whatever kind, as shall be approved by the Board of Trustees, including but not limited to stocks, common or preferred bonds, common trust Funds and other evidence of indebtedness or ownership. In any event, however, the provisions of Section 185.06(1)(b)4, Florida Statutes, shall not be superseded, nor shall the trust fund be operated inconsistent therewith, except as set forth in this sub­paragraph. The Board of Trustees may invest up to the aggregate of 70% (at market) 50% (at cost) of the Retirement System's investments in bonds, stocks, or other evidences of

indebtedness issued or guaranteed by a corporation organized under the laws of the United

States, any state or territory of the U.S., or the District of Columbia.  Further, no foreign
investments shall be allowed up to the limits contained in section 185.06, Florida Statutes.

             (C)       The Board of Trustees may retain in cash and keep unproductive unproducting of income such amount of the Fund as it may deem advisable, having regard for the cash requirements of the system.

(D)        No person or entity shall be liable for the making, retention, or

sale of any investment or reinvestment made as herein provided, nor for any loss or diminishment of the Fund, except that due to his or its own negligence, willful misconduct or lack of good faith.

(E)          The Board may cause any investment in securities held by it to

be registered in or transferred into its name as Trustee or into the name of such nominee as it may direct, or it may retain them unregistered and inform permitting transferability. The books and records shall at all times show that all investments are part of the Trust Fund.

(F)       The Board is empowered, but is not required, to vote upon any

stocks, bonds or securities of any corporation, association or trust and to give general or specific proxies or powers of attorney with or without power of substitution; to participate in mergers, reorganizations, recapitalizations, consolidations and similar transactions with respect to such securities; to deposit such stock or other securities in any voting trust or any protective or like committee with the Trustees or with depositories designated thereby; to amortize or fail to amortize any part or all of the premium or discount resulting from the acquisition or disposition of assets and generally, to exercise any of the powers of an owner with respect to stocks, bonds or other investments comprising the Fund which it may deem to be the best interest of the Fund to exercise.

(G)The Board shall not be required to make any inventory or

appraisal or report to any court, nor to secure any order of court for the exercise of any power herein contained.

                        (7)  (H)            Where any action which the Board is required to take or any duty or

function which it is required to perform either under the terms herein or under the general law applicable to it as Trustee under this ordinance, can reasonably be taken or performed only after receipt by it from a member, the town or any other entity, of specific information, certification, direction or instructions, the Board shall be free of liability in failing to take such action or perform such duty or function until such information, certification, direction or instruction has been received by it.

(8)  (I)     Any overpayments or underpayments from the Fund to a member or

beneficiary caused by errors of computation shall be adjusted with interest at a rate per annum approved by the Board. Overpayments shall be charged against payments next succeeding the correction. Underpayments shall be made up from the Trust Fund.

Text Box:                         (9)  (J)             The Board shall sustain no liability whatsoever for the sufficiency of the Fund to meet the payments and benefits herein provided.

Text Box: (10) (K)         The Board has the power to sue and/or be sued.  In any

application to or proceeding or action in the courts, only the town and the Board shall be necessary parties, and no member or other person having an interest in the fund shall be entitled to any notice or service of process. Any judgment entered in such a proceeding or action shall be conclusive upon all persons.

(11)  (6)       Any of the foregoing powers and functions reposed in the

Board may be performed or carried out by the Board through duly authorized agents, provided that the Board at all times maintains continuous supervision over the acts of any such agent; provided further, that legal title to said fund shall always remain in the Board of Trustees.

            (d)  (c)            Member contributions.

                        (1)        Amount.  Effective on October 1, 1994, 5% of the respective salaries

of  each member shall be deposited to the trust on a pre-tax basis in accordance with the provisions of Section 414(h)(2) of the U.S. Internal Revenue Code. Such contributions shall be collected and deposited to the trust immediately after each pay period no less frequently than monthly.

(2)        Guaranteed Refund.  All benefits payable under this system are in lieu

of a refund of Accumulated Contributions, without interest. In any event, however, each member shall be guaranteed the payment of benefits on his behalf at least equal in total amount of his accumulated contributions, without interest.

(3)      Membership.

(A)        Each Police Officer who is a member of the System as of the

effective date of this Ordinance shall continue as a member without interruption.

(B)        Each Police Officer hired after _____________, 2007 [the

effective date of ordinance no. 2007-__] shall become a Member of this System as a condition of employment on his date of full-time  employment.

              (4)       Each Police Officer/Member shall complete a form prescribed by the Board providing the following information:

(A)     Designation of a Beneficiary for Beneficiaries, and

(B)     Authorization of payroll deduction, and

(C)     A sworn statement as to prior medical history, and

(D) Any other information deemed necessary or appropriate by the

Board.

             (5)      Change in Designation of Beneficiary - A Member may from time to time change his designated Beneficiary by written notice to the Board upon forms provided by the Board.     Upon such change, the rights of all previously designated Beneficiaries to receive any benefits under the System shall cease.

            (e)  (d)           Benefits.

                     (1)           Retirement date.

(A)        Normal retirement. A member's normal retirement date shall be

the first day of the month coincident with or next following the earlier of: 1) attainment of age fifty-five (55) and the completion of ten (10) years of creditable service; or 2) attainment of age fifty-two (52) and the completion of twenty (20) years of creditable service. Members who continue in employment beyond their normal retirement date continue to earn benefit credit under the system. Each member shall become 100% vested in his or her accrued benefit on his or her normal retirement date.

(B)       Early retirement. A member's early retirement date shall be the

first day of the month coincident with or next following the attainment of age fifty (50) and the completion of ten (10) years of creditable service, or any later date prior to the normal retirement date.

                        (2)        Retirement benefits.

(A)      Normal retirement. A member retiring hereunder on or

after the member's normal retirement date shall receive a monthly benefit which shall commence on the member's retirement date and be continued thereafter during said individual's lifetime with the first 120 payments guaranteed as payable in any event. The monthly retirement benefit shall be equal to 3% of average final compensation multiplied by the years of credited service.

1.  i. Provided, further, members retiring on or after October 1,

1998 who complete 20 or more years of credited service, or members retiring on or after October 1, 2002 who have reached their normal retirement date as defined in section 11-54(e)(1)(A) 11-54(d)(1)(A) of this code, shall receive an additional monthly benefit equal to $10 times (x) the number of full years of credited service. This additional monthly amount shall commence on the member's retirement date and be continued thereafter during said individual's lifetime with the first 120 payments guaranteed as payable in any event.

2. ii. Members (including terminated vested members and

their beneficiaries, but excluding disability retirees) who begin receiving monthly benefit payments on or after October 1, 2001, shall receive a 3% annual increase in benefits beginning on October 1 following the later of: 1) the date of termination of employment; or 2) the date that the member would have met the requirements for normal retirement (based on actual service at the date of termination of employment). The final 3% increase shall occur on October 1 preceding the attainment of age 62, or, in the case of beneficiaries of deceased members, the October 1 preceding the date the deceased member would have attained age 62.

(B)       Early retirement. A member retiring hereunder on said

member's early retirement date may receive either a deferred or an immediate benefit payable for life, with the first 120 payments guaranteed payable in any event, as follows:

1. i. A deferred monthly retirement benefit which shall

commence on what would have been said member's normal retirement date. The amount of each such deferred monthly retirement benefit shall be determined in the same manner and paid in the same form as retirement at the member's normal retirement date, except that credited service and average monthly earnings shall be determined as of the member's early retirement date; or

2  ii. An immediate monthly retirement benefit which shall

commence on the member's early retirement date. The benefit payable shall be computed and paid in the same manner as normal retirement but shall be reduced three percent (3%) for each year by which the early retirement date precedes the otherwise normal retirement date.

             (3)        Death prior to retirement; refunds of contributions or payment of death benefits.

(A)       If a member dies before attaining 10 years of service, the

beneficiary(ies) named by the Member shall be entitled to a refund of 100 percent, without interest, of the contributions made to the System by such deceased member. If there is no named beneficiary, then the refund of contributions shall be paid to the estate of the member.

(B)        If a member with at least 10 years of credited service dies

prior to retirement, his or her beneficiary is entitled to the benefits otherwise payable to the member at early or normal retirement age.

                        (4)      Separation from Department; refunds.

(A)      If any Member leaves the service of the Department

before accumulating aggregate time of 10 years toward retirement and before being eligible to retire under the provisions of this chapter, such Member shall be entitled to a refund of all of his or her contributions made to the System without interest, less any benefits paid to him or her.

(B)       If any Member who has been in the service of the Department

for at least 10 years elects to leave his or her accrued contributions in the System, such Member may retire at the amount of such retirement income otherwise payable to him or her, at his  or her early or normal retirement date.

            (f)  (e)     Disability benefits.

(1)        Service incurred.  Any member who receives a service-connected

injury, disease or disability, which injury, disease or disability causes said member to be totally and permanently disabled by reason of any cause other than as set forth in sub-section (f)(4)  (e)(4) on or after the effective date of the plan, shall receive in equal monthly installments an amount equal to 50% of his rate of regular base salary in effect as of the date of disability. The benefit shall be paid as of the date of disability until the earlier of recovery, as determined by the Board, or death. In the event of death within ten years of the date of disability and during the existence of the disability, benefits shall be continued to the member's beneficiary for the balance of the ten year period.

(A)          Any condition or impairment of health of any and all police

officers employed in the Department and who are members of the Plan caused by tuberculosis,  hypertension, heart disease, or hardening of the arteries, resulting in total or partial disability or death, shall be presumed to be accidental and suffered in line of duty unless the contrary be shown by competent evidence. Any condition or impairment of health caused directly or proximately by exposure, which exposure occurred in the active performance of duty at some definite time or place without willful negligence on the part of the member, resulting  in total or partial disability shall be presumed to be accidental and suffered in the line of duty, provided that such member shall have successfully passed a physical examination upon entering such service, which physical examination, including electrocardiogram, failed to reveal any evidence of such condition. In order to be entitled to the presumption in the case of hepatitis, meningococcal meningitis, or tuberculosis, the member must meet the requirements of section 112.181, Florida Statutes.

         (2)     Nonservice-incurred. Any member who receives a nonservice-connected injury, disease or disability and which injury, disease or di