Sec. 39-176. - Effect of compulsory military service.

Any member of the fire department who shall be compelled to perform compulsory military service in the armed forces of the United States shall, during the period of such compulsory military service, be considered as also having been in the continuous service of the fire department within the meaning of this division; provided, however, that such member shall resume his active service with the fire department upon the expiration of such compulsory military service, in accordance with the rules of such department.

(Code 1968, § 28A-65)

Sec. 39-177. - Definitions; disability retirement; amount of pension; full service pension; early retirement; effect of demotion or dismissal without cause of deputy chief or chief; cost of living increase.

(a)

Definition. The terms identified below when used in this plan shall have the meanings set forth in this subsection and shall be applicable to the calculation of service for the purposes of this division.

(1)

Authorized leave of absence means a period of absence from employment authorized in accordance with the fire department personnel regulations. Such period of absence shall not cause a break in service, but such period shall not be credited toward the calculation of years of service. The fire department shall notify the board of trustees of any authorized leave of absence.

(2)

Break in service means voluntary termination of a member's employment followed by a period of 365 days or more during which such member is not reemployed. Involuntary termination of employment not due to any fault or neglect of the member shall not cause a break in service.

(3)

Continuous period of service means a period of service during which a member has not incurred a break in service.

(4)

Termination of employment means separation from employment, whether voluntary or involuntary, other than in connection with an authorized leave of absence.

(5)

Years of service means those years of service which will be credited under this plan only with respect to employment with the city as a member of the fire department in accordance with the rules of this subsection:

a.

Prior to July 1, 1984, whole and partial years of service will be credited for service prior to July 1, 1984, in accordance with the terms of the plan set forth in this division in effect before April 5, 1984, the prior plan.

b.

After June 30, 1984, a member will be credited with service based on the elapsed time method described in this subsection: One year of service is credited for each 365 days of employment. A day of employment is credited for each day of the period beginning on the date the member commences employment, or recommences employment, and ending on the date the member terminates employment. Where a member's aggregate days of employment include a fractional period of less than 365 days, that fractional period shall be disregarded.

(6)

Normal retirement date means the first day of the month coincident with or next following the participant's termination of employment after the completion of 20 years of service.

(b)

Disability retirement. Whenever a member of the fire department of the city shall:

(1)

Have become disabled or incapacitated from injuries received while in the active performance of official duty and whenever any member of the fire department who has been credited with at least seven years of service shall have become permanently incapacitated from performing such regular active duty, he may be retired by the chief of fire from the regular active service and placed upon the retired list and shall receive a pension in the amount of one-half his salary at the time of his disability retirement.

(2)

Become permanently disabled or incapacitated so as not to be able to be employed in any capacity, from a job-connected injury, he shall be entitled to receive from the sum established in this subsection an amount equal to 75 percent of the amount of his salary at the time of his disability retirement.

(c)

Full service pension. All members of the fire department who shall have been credited with at least 20 years of service shall, upon their own application, be placed upon the retired list, whether they are disabled or not.

(1)

Each person so retiring shall be entitled to receive from the sum established by this division an amount equal to one-half of the amount of his salary at the time of his retirement, plus, if the service of such person was performed during a continuous period of service, two percent of such retiring salary, multiplied by the number of years of service in excess of 20 years, so long as he may remain upon the retired list, such sum to be paid monthly; provided, that beginning in fiscal year 1994 the "salary at the time of his retirement" shall also include the amount of the annual lump sum payment for "allotted days" as such term is used in the collective bargaining agreement between the city and the firefighters for the fiscal year in which the person retires, if the applicable collective bargaining agreement for that fiscal year in which the person retires provides for such payment for "allotted days," further provided that an amount equal to six percent pension contribution shall be deducted from such annual lump sum payment.

(2)

Any member who has been credited with at least 20 years of service and who is eligible for retirement, who continues to work for the department and who is subsequently disabled from a nonoccupational injury, is not eligible to receive a disability pension under subsection (b) of this section, notwithstanding any other provisions of this division to the contrary.

(d)

Early retirement. Any member of the fire department who has received credit for at least five years of service shall be entitled to retire and receive a pension at the annual rate of 2½ percent times his salary at the time of retirement, times years of service, times the vested percentage indicated in the table below depending upon the number of years of service:

However, except as permitted by subsection (e) of this section, any firefighter who chooses to retire under this early retirement provision shall not begin to receive his pension benefits until the 20th anniversary of the date he was hired by the fire department.

(e)

Early retirement using purchased years of service credits under section 39-187 Any member of the fire department who has received credit for at least 15 years of service under the provisions of subsection (a) of this section may combine those credits with purchased years of service credits under the provisions of section 39-187 and begin to receive his pension on the date of retirement, as follows:

(1)

If the total of the combination of credited years of service under subsection (a) of this section and purchased years of service credits under section 39-187 is 20 or greater, the member shall be entitled to a monthly pension for life at the annual rate of one-half of the amount of his salary at the time of retirement; plus two percent of such retiring salary, multiplied by the number of years of combined service credits greater than 20.

(2)

If the total of the combination of credited years of service under subsection (a) of this section and purchased years of service credits under section 39-187 is less than 20, the member shall be entitled to a monthly pension for life at the annual rate of 2½ percent of his salary at the time of retirement, multiplied by the number of years of combined service credits.

(3)

To the extent that the receipt of pension benefits pursuant to subsection (1) or (2) of this subsection would have a financial impact upon this fund which exceeds the impact on this fund if the member had delayed receipt until his 20th anniversary, and which is not eliminated by the lump-sum payment described in section 39-187, in order to utilize this early retirement and payment provision the member must make an additional actuarially determined lump-sum payment into this fund to eliminate this financial impact. The lump-sum payment must be calculated and paid at the same time and under the same actuarial assumptions as required under the provisions of section 39-187. In addition, the member must pay a nonrefundable application fee, which fee shall cover the cost of the actuarial determination and shall not exceed $400.00.

(f)

Pension for members retired as of June 30, 1970. Notwithstanding any other provision of this division to the contrary, each member of the fire department of the city who is or shall be retired as of June 30, 1970, shall be entitled to receive a monthly pension equal to one-half of the monthly salary received as of June 30, 1970, by a firefighter on active duty of equivalent rank as that held by such member at the time of his retirement, plus, if the service of such member was performed during a continuous period of service, two percent of such monthly salary multiplied by the number of years of service in excess of 20 years.

(g)

Demotion or dismissal of deputy chief or chief. Upon a demotion or termination without cause of any member of the fire department holding the rank of deputy chief or chief, immediately prior to such demotion or termination such member may instead retire at the rank he held immediately prior to such demotion or termination, with his pension benefits calculated accordingly. If such deputy chief or chief has not been credited with at least 20 years of service in the department, such deputy chief or chief must first, prior to receiving his pension pursuant to this subsection, contribute to the firefighter's pension plan established in this division an amount equal to six percent of his current annual salary times the number of whole and partial years needed to reach 20 years of service from the date of such demotion or termination. Upon such contribution, such deputy chief or chief shall then receive his pension calculated using the rank he held immediately before the demotion or termination, as if it were a normal retirement.

If a deputy chief or chief of the department is demoted without cause and has not been credited with at least 20 years of service in the department at the time of the demotion, he shall also have the option to accept the demotion and continue to work at the lower rank. Upon achieving his 20th year of service, he may then retire and receive a pension calculated using the then-current salary of the rank he held immediately prior to such demotion, but this option will only be available if such deputy chief or chief retires upon achieving his 20th year of service.

(h)

Cost-of-living increase, effective November 1, 1991.

(1)

Effective on November 1, 1991, any member who has retired and commenced receipt of benefits prior to January 1, 1988, or any such member's surviving spouse, shall be entitled to an ad hoc cost-of-living benefit increase (COLA). The amount of the COLA payable to a member shall be equal to the product of multiplying A by B multiplied by C where:

a.

A is equal to one percent times the number of complete or partial years from the date of retirement to December 31, 1988, up to a maximum of 20 percent;

b.

B is equal to the 1988 base pension payroll level for a firefighter retiring with 20 years service and of the same rank as that held by the member at the time of the member's retirement; and

c.

C is equal to 0.79.

A surviving spouse shall be entitled to a COLA that is one-half of the COLA that would otherwise have been received by the member whom the surviving spouse survived. The amount of COLA stipulated above is conditional upon the continued funding of the cost of such COLA by the city with state matching contributions.

(2)

If the state should cease its contributions prior to the completion of the amortization of the actuarial liability attributable to the COLA, determined as of November 1, 1991, the COLA shall be reduced prospectively to reflect the insufficient contributions. Such reduced COLA shall be determined by multiplying the full COLA amount by the ratio of D to E, where:

a.

D is equal to the accumulated value with interest of all state and city contributions to the COLA less the accumulated value with interest of all COLA payments paid; and

b.

E is the actuarial present value of future COLA payments determined;

all determined as of the date the state contributions ceased. All calculations shall be made on the basis of the 1983 Group Annuity Mortality Table and interest at the rate of 8½ percent.

(i)

Cost of living increase, effective July 1, 1997, for firefighters' pension fund members.

(1)

Effective on July 1, 1997, any member who has retired and commenced receipt of benefits prior to July 1, 1996, or any such member's surviving spouse, shall be entitled to an ad hoc cost-of-living benefit increase (COLA). The amount of the COLA payable to a member shall be equal to the product of multiplying "(1)" by "(2)" by "(3)" multiplied by "(4)" where:

a.

"(1)" is equal to one percent times the number of complete or partial years from the date of retirement to June 30, 1996, up to a maximum of 20 percent; and

b.

"(2)" is equal to the 1988 base salary level by rank at retirement of city policemen; and

c.

"(3)" is equal to .864; and

d.

"(4)" is equal to .98.

A surviving spouse shall be entitled to 50 percent of the increase calculated above.

(2)

In the event that the state should cease its contributions prior to completion of the amortization of the actuarial liability attributable to the COLA, then the above-referenced pension increases shall be deleted and revert to the benefit schedule in place before such increases were implemented. In addition, any and all city contributions to this COLA program shall cease.

(j)

Cost-of-living increase effective July 1, 2006 for city firefighters' pension fund members.

(1)

Effective on July 1, 2006, any member who has retired and commenced receipt of benefits prior to January 1, 2005, or any such member's surviving spouse, shall be entitled to an ad hoc cost-of-living benefit increase (COLA). The amount of the COLA payable to a member shall be equal to the product of multiplying "(1)" by "(2)" by "(3)" multiplied by "(4)" where:

a.

"(1)" is equal to one percent times the number of complete or partial years from the date of retirement to January 1, 2005, up to a maximum of 20 percent;

b.

"(2)" is equal to the 1988 base salary level by rank at retirement of city firefighters;

c.

"(3)" is equal to .864; and

d.

"(4)" is equal to .49.

A surviving spouse shall be entitled to 50 percent of the increase calculated above.

(2)

In the event that the state should cease its contributions prior to completion of the amortization of the actuarial liability attributable to the COLA, then the above-referenced pension increases shall be deleted and revert to the benefit schedule in place before such increases were implemented. In addition, any and all city contributions to this COLA program shall cease.

(k)

Cost-of-living increase, effective July 1, 2003 for Firefighters Pension Fund members.

(1)

Effective on July 1, 2003, any member who has retired and commenced receipt of benefits prior to January 1, 2001, or any such members' surviving spouse, shall be entitled to an ad hoc cost-of-living benefit increase (COLA). The amount of the (COLA) payable to a member shall be equal to the product of multiplying "(1)" by "(2)" by "(3)" multiplied by "(4)", then divided by the number two, where:

a.

"(1)" is equal to one percent times the number of complete or partial years from the date of retirement to December 31, 2000, up to a maximum of 20 percent;

b.

"(2)" is equal to the 1988 base salary level by rank at retirement of city firefighters;

c.

"(3)" is equal to .864;

d.

"(4)" is equal to .98.

e.

Divide the product of the aforesaid multiplication by the number two. The result of the division shall constitute the amount of the (COLA) increase.

A surviving spouse shall be entitled to 50 percent of the increase calculated above.

(2)

In the event that the state should cease its contributions prior to the amortization of the actuarial liability attributable to the (COLA) then the above-referenced pension increases shall be deleted and revert to the benefits schedule in place before such increases were implemented. In addition, any and all city contributions to this (COLA) program shall cease.

(Code 1968, § 28A-66; Ord. No. 91-073, § 1, 10-17-91; Ord. No. 94-033(sub 1), § 1, 6-30-94; Ord. No. 98-045(sub 1), § 1, 4-23-98; Ord. No. 01-076, § 1, 7-26-01; Ord. No. 03-052, § 1, 10-16-03; Ord. No. 06-057(sub 1), § 1, 8-31-06; Ord. No. 11-003, § 1, 2-3-11)

Sec. 39-178. - Surviving spouse's and dependents' benefits.

(a)

The surviving spouse of any member of the fire department who shall have lost his life in the performance of duty shall receive from this firefighters' pension plan a lump sum equal to the member's last year's full salary, and then she shall receive regular annual payments of one-half of his salary until her death or remarriage; and each surviving child after the first year of the member's death shall receive $30.00 per month for each living dependent child born or conceived before such death and currently under the age of 18 years, with a maximum payment of $90.00 per family per month for such dependent children.

(b)

The surviving spouse of any member or retired member of the fire department who shall have died under circumstances other than in the performance of duty after being credited with at least seven years of service or the sole surviving dependent parent of any member or retired member who shall have lost his life in the performance of duty, or who shall have died under any other circumstances after being credited with at least seven years of service performed during a continuous period of service shall receive an annual pension equal to one-half of the amount of the pension such member would have been entitled to a retired firefighter at the time of his death; provided, however, that no surviving spouse shall be entitled to a pension who shall have married such member during his last illness or after he shall have been placed on the retired list; and provided further, that if any surviving spouse entitled to a pension shall remarry, then such pension shall cease; provided, however, that if any such surviving spouse or dependent parent of any member of the fire department shall receive any money under and by virtue of 19 Del. C. ch. 23 (§ 2301 et seq.) (the workers' compensation law), such money so received by them, or any of them, shall be deducted from the amount that they, or any of them, would be entitled to receive under this subsection.

(c)

Upon the death of any surviving spouse who is receiving pension benefits under this plan, survived by a child or children under the age of 18 years, the death of the surviving spouse shall not cause such pension to cease, but such pension benefits shall continue to be paid to the surviving child or children until the youngest child attains the age of 18 years. Such benefits shall be paid to such child or children in lieu of the benefits paid to such child or children pursuant to subsection (a) of this section.

(d)

Notwithstanding any other provisions of this division to the contrary, any surviving spouse of a member who is or shall be entitled to receive a pension under subsection (a) of this section as of June 30, 1970, shall be entitled to receive a monthly pension equal to one-half of the monthly salary received as of June 30, 1970, by a firefighter on active duty of equivalent rank as that held by such member at the time of his death.

(e)

Notwithstanding any other provisions of this division to the contrary, any surviving spouse or sole dependent parent of a member, as the case may be, who is or shall be entitled to receive a pension under subsection (b) of this section as of June 30, 1970, shall be entitled to receive a monthly pension equal to one-fourth of the monthly salary received as of June 30, 1970, by a firefighter on active duty of equivalent rank as that held by such member at the time of his retirement or death as the case may be, plus, if the service of such member was performed during a continuous period of service, two percent of such monthly salary multiplied by the number of years of service of such member in excess of 20 years.

(f)

Payment of benefit to an unmarried participant. If a terminated vested participant is not married on his retirement date, his pension will be paid to him monthly in the form of a ten-year certain and life basis annuity. That is one-twelfth of his annual pension will be paid to him on the first day of each month beginning with his retirement date and continuing until and including the first day of the month in which he dies. If he dies before 120 monthly payments have been made to him, these monthly payments will continue to his designated beneficiary, or the beneficiary's estate, until a total of 120 monthly payments have been made to him and his beneficiary, or beneficiary's estate, combined.

(Code 1968, § 28A-67; Ord. No. 97-101, § 1, 1-8-98)

Sec. 39-179. - Certain diseases presumed to be service-connected.

Notwithstanding the provisions of this division or of any general or special law to the contrary, any condition or impairment of health caused by tuberculosis, heart disease, terminal cancer, or emphysema, resulting in total or partial disability of any member of the fire department of the city who successfully passed the physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be presumed to have suffered or incurred such ailments in the line of duty, unless the contrary be shown by competent evidence. Any disability as specified in this section which removes the member of the fire department from active service shall entitle the member to the benefits of this division regardless of the period of service at the time the disability occurred.

(Code 1968, § 28A-68)

Sec. 39-180. - Voluntary and involuntary retirement; notice and hearing prerequisite to retirement; physical examination and report.

No member of the fire department subject to this plan shall be retired until he has been duly notified by the chief of fire of his intention to so retire him, and until he has had a fair opportunity of being heard in opposition thereto; provided, that any member of the fire department subject to this plan deeming himself entitled to the benefits of this division may make written application to the chief of fire for that purpose. No member of the fire department shall be placed upon such retired list until he shall have first undergone an examination as to his physical condition to be made by a board of physicians, consisting of the fire surgeon of the city, the family physician of such firefighter and a third reputable physician of the city, to be selected by the other members of such board. Such board shall report in writing to the chief of fire the results of such physical examination, together with a statement as to how far in the opinion of such board, the firefighter examined is incapacitated from performing regular active duty in the fire department. Upon the receipt of such report of the board of physicians, the chief of fire may retire such firefighter in accordance with the provisions of this division.

(Code 1968, § 28A-69)

Sec. 39-181. - Reexamination of person on retired list; return to duty.

The chief of fire may at any time require any firefighter on the retired list on account of disability who has not passed his 20th anniversary of date of hire to be reexamined by the surgeon of the fire department or some other competent physician authorized by the chief of fire to act in the premises, and if on such reexamination, such firefighter is reported capable of performing regular duty, he may be required by the chief of fire to return to regular duty in the same rank and grade in which he was serving at the time of his retirement.

(Code 1968, § 28A-70)

Sec. 39-182. - Board of trustees generally.

(a)

The board of trustees of the firefighters' pension plan shall consist of the chief of fire, the city treasurer, the director of finance, the personnel director, the chairman of the finance committee of the council, the chairman of the public safety committee of the council and five members of the fire department of the city, such five members to be elected every four years by vote of the members of the fire department of the city. Those members of the board of trustees elected as of January 1, 2002, shall serve until December 31, 2006. The first general election shall occur in January 2006 and every four years thereafter.

(b)

The chief of fire shall be the president of the board of trustees of the firefighters' pension plan. The board of trustees of the firefighters' pension plan shall appoint a secretary from among their own number. The secretary shall execute a bond for the faithful performance of his duties with respect to the firefighters' pension plan in such sum and form with such surety as will be satisfactory to the board of trustees. The cost of such bond shall be deducted from the reserve account described in section 39-183, or from the pension fund established under the prior plan.

(Code 1968, § 28A-71; Ord. No. 02-043, § 1, 5-2-02)

Cross reference— Boards, commissions and similar entities, § 2-56 et seq.

Sec. 39-183. - Reserve account.

(a)

All moneys collected in payment of fines imposed by the chief of fire upon members of the fire department subject to this plan, all moneys deducted or withheld from the pay of the members of the fire department subject to this plan by reason of absence from duty from any cause, all moneys donated to this pension plan, and all rewards and testimonials paid to the members of the fire department subject to this plan shall be set aside for bookkeeping purposes in a nontrusteed reserve account of the city. Participants shall have no rights with respect to any assets thus set aside.

(b)

In addition, the base salary of each member of the fire department of the city who shall participate in the benefits of this plan shall be reduced by six percent, and the amount of such reduction shall be credited to the reserve account. No such member of the fire department shall have the option of receiving such amount directly, and such amount shall be forfeitable in accordance with section 39-177. These amounts shall be treated as allocations by the city to the reserve account.

(c)

Earnings attributable to the assets allocated to the reserve account described in this section shall also be allocated for bookkeeping purposes to such account.

(d)

The city will also make contributions to the board of trustees to fund this plan in accordance with actuarial determinations made not less frequently than once every three years. The actuarial assumptions to be used by the actuary shall be determined from time to time by the board of trustees with the advice of an actuary. The city's contributions over and above those made in subsections (a) through (c) of this section shall be designed to amortize any unfunded liability over a period not to exceed 40 years. In any event the city's contribution in any one year shall not be less than the full current costs plus the interest on any unfunded liability, less any funds coming into this plan under subsections (a) through (c) of this section. The board of trustees' annual financial report, filed pursuant to section 39-185, shall include a recommendation with respect to the city's contribution required to meet the funding requirements under this plan.

(e)

The board of trustees shall be responsible for developing a funding policy for the investment of assets represented by the reserve account and the pension fund established under the prior plan and it shall be responsible for the management and investment of such assets. It may hire consultants or investment advisors to assist in this regard. It may delegate the authority to manage and invest such assets to any investment manager which acknowledges that it is a fiduciary with respect to this plan.

(Code 1968, § 28A-72)

Sec. 39-184. - Disbursements.

(a)

The city treasurer shall be the custodian of the plan and shall disburse from the general revenues of the city or from the pension fund established under the prior plan all amounts owed by the plan, at the written order of the board of trustees. When disbursements are made from general revenues of the city which are allocated for bookkeeping purposes to this reserve account, deductions shall be made from such account.

(b)

The city treasurer shall execute a bond for the faithful performance of his duties with respect to this plan and in such sum and form and with such surety as will be satisfactory to the board of trustees. The cost of such bond shall be deducted from the reserve account or from the pension fund established under the prior plan.

(Code 1968, § 28A-73)

Sec. 39-185. - Annual report to council.

The board of trustees shall submit to the city council a financial report for each fiscal year, audited by an independent certified public accountant, regarding the earnings attributed to the reserve account for bookkeeping purposes, and regarding the investment of the pension fund established under the prior plan, not later than five months after the close of this plan's fiscal year. For purposes of this report, the fiscal year of this plan shall begin on July 1 of each year, and end on June 30 of the following year.

(Code 1968, § 28A-74)

Sec. 39-186. - Transfer of members to police department.

Whenever a member of the fire department subject to this plan shall transfer to and be a member of the police department, all pension and retirement benefits and rights accrued to such member shall be transferred to the pension plan for members of the police department described in division 2 of this article.

(Code 1968, § 28A-75)

Sec. 39-187. - Purchase of years of service credits.

(a)

In addition to the years of service credits accrued pursuant to section 39-177(a), a member of the fire department covered by this pension plan may elect to purchase:

(1)

Up to five years of service credits for full time active duty in the armed services of the United States predating employment by the fire department; and/or

(2)

Up to five years of service credits for full time employment performed for the city for which the member will not receive pension credits in another pension fund supported in whole or in part by the city;

provided that the member pays into this plan, on or before the date of issuance of the first benefit payment, a single lump-sum payment equal to the actuarial value of the pension benefits to be derived from such service credits computed on the basis of actuarial assumptions approved by the board of trustees. A member may not accrue a total of more than ten years of service credits under this section, and except as provided in section 39-177(f), any years of service credits purchased under this section shall not be used to determine eligibility for benefits under this division. The years of service credits available under this section shall be calculated as if accrued under the provisions of section 39-177(a).

(b)

The amount of the lump-sum payment described in subsection (a) of this section shall be determined by the actuaries utilized at that time by the city's board of pensions and retirement. The fee charged by the actuary for calculating the lump-sum payment amount shall be borne by the member seeking to utilize this section. The fee shall be paid at the time the member applies for a calculation pursuant to this section, using a form developed by the city treasurer. The member shall pay the calculation fee regardless of the member's decision whether to make the lump sum payment permitted by this section.

(Code 1968, § 28A-77)

Secs. 39-188—39-205. - Reserved.