RD:SH:SH
2/2/2022
T-35906\ 1639013_3.doc 1
Council Agenda: 2/15/22
Item No.: 2.8
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SAN JOSE
AMENDING SECTION 3.36.020 OF CHAPTER 3.36 OF
TITLE 3 OF THE SAN JOSE MUNICIPAL CODE TO
CLARIFY THE DEFINITION OF COMPENSATION IN THE
1961 POLICE AND FIRE DEPARTMENT RETIREMENT
PLAN
WHEREAS, Chapter 3.36 of Title 3 of the City of San Jose’s Municipal Code contains language that defines “Compensation” in the 1961 Police and Fire Department Retirement Plan; and
WHEREAS, the 2018 City Auditor’s report titled, “Pensionable Earnings: Tighter Controls and More Transparency Can Ensure Retirement Contributions Continue to Be Accurate”, contained a recommendation that the term “Fair Labor Standards Act (FLSA) premium pay” in Municipal Code Section 3.36.020.3 C should be clarified; and
WHEREAS, the City Council accepted the City Auditor’s recommendations on April 3, 2018; and
WHEREAS, the proposed ordinance was drafted to clarify the definition of Compensation in the 1961 Police and Fire Department Retirement Plan based on the City Auditor’s recommendation, as well as to provide when certain pays were incorporated into base pay for both firefighters and police officers; and
WHEREAS, the Office of Employee Relations brought forward the proposed ordinance to the Police and Fire Retirement Board for comment at its September 9, 2021 meeting and the Board had no comments; and
RD:SH:SH
2/2/2022
T-35906\ 1639013_3.doc 2
Council Agenda: 2/15/22
Item No.: 2.8
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
WHEREAS, the proposed ordinance was also provided to the San Jose Peace Officers Association and the International Association of Firefighter, Local 230 and there were no comments; and
WHEREAS, pursuant to the provisions and requirements of the California Environmental Quality Act of 1970, together with related State CEQA Guidelines and Title 21 of the San José Municipal Code (collectively, "CEQA"), it has been determined that the provisions of this Ordinance do not constitute a project, under File No. PP17- 008 (General Procedure and Policy Making resulting in no changes to the physical environment); and
WHEREAS, the City Council of the City of San José is the decision-making body for this Ordinance; and
WHEREAS, this Council has reviewed and considered the "not a project" determination under CEQA prior to taking any approval actions on this Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF SAN JOSE:
Section 3.36.020 of Chapter 3.36 of Title 3 of the San José Municipal Code is amended to read as follows:
3.36.020.3 "Compensation"
A. "Compensation" means the monthly remuneration paid in cash out of funds controlled by the City to a member in payment for his or her services to the City, excluding the monetary value, if any, of living quarters, board, lodging, fuel, laundry or other advantages of any nature furnished a member in payment of his or her services. Also, when the compensation of a member is a factor in any RD:SH:SH
2/2/2022
T-35906\ 1639013_3.doc 3
Council Agenda: 2/15/22
Item No.: 2.8
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
computation to be made under this Chapter, there shall be excluded from such compensation any payments based on overtime put in by a member except as expressly provided in subsection C below ,; any travel or uniform or expense allowance,; any insurance or medical or surgical or hospital benefits ,; any workers' compensation benefits except as expressly provided in subsection G. below,; peace officer standards training pay except as expressly provided in subsection H. below ,; any retirement or death or survivorship benefits ,; any payments paid on a per diem, per hour or any other basis than a monthly basis,; and any and all other fringe benefits or items of pay not expressly included in the definition of C ompensation under this section 3.36.020.3.
B. "Compensation" shall include holiday pay or any compensation paid to a member in lieu of holiday pay in the case of:
Any member who retires under the provisions of this Chapter, either for service or disability, on or after July 5, 1992; and
Any former member who separates from City service on or after July 5, 1992, and elects to allow his or her accumulated contributions to remain in the retirement fund pursuant to Section 3.36.1640.
Effective June 28, 2009, compensation in lieu of hol iday pay paid to members of this Plan who are employed in the Police Department is incorporated into base pay and thus considered Compensation under subsection A for employees of the Police Department on and after such effective date. Effective October 7, 2018, compensation in lieu of holiday pay paid to members of this Plan who are employed in the Fire Department is incorporated into base pay and thus considered Compensation under subsection A for employees of the Fire Department on or after such date.
RD:SH:SH
2/2/2022
T-35906\ 1639013_3.doc 4
Council Agenda: 2/15/22
Item No.: 2.8
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
C. "Compensation" shall include premium pay paid pursuant to the Fair Labor Standards Act (FLSA premium pay) for regularly scheduled hours for employees who perform fire suppression duties and are assigned to a work schedule in excess of 212 hours in a 28 day work period work week averaging fifty-six (56) hours per week over a twelve (12) -month period, subject to the following limitations:
1. "Compensation" shall only include FLSA premium pay which is earned and payable on or after December 28, 1997.
2. "Final compensation" including FLSA premium pay shall not exceed the one hundred eight percent (10 8%) limitation imposed by Section
3.36.020.5.B.2.
3. This subsection C. shall apply only in the case of:
a. A member who retires under the provisions of this Chapter, either for service or disability, on or after July 5, 1998; and b. A former member who separates from City service on or after July 5, 1998, and elects to allow his or her accumulated contributions to remain in the retirement fund pursuant to Section 3.36.1640; and
c. A member who dies on or after July 5, 1998, while in C ity service for which the member receives service credit in this Plan.
D. "Compensation" shall include incentive pay for successful completion, on an annual basis, of training in Police Anti -Terrorist Tactics as certified by the Police Department to the City Finance Department. Effective March 22, 2009, incentive pay for training in Police Anti -Terrorist Tactics i s incorporated into base RD:SH:SH
2/2/2022
T-35906\ 1639013_3.doc 5
Council Agenda: 2/15/22
Item No.: 2.8
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
pay and thus considered Compensation under subsection A on and after such date.
E. "Compensation" shall include incentive pay for completing and maintaining an Emergency Medical Technician (EMT) certificate, but only such EMT incentive pay which is earned and payable on or after July 7, 1991. Effective October 7, 2018, EMT incentive pay is incorporated into base pay and thus considered Compensation under subsection A on and after such date.
F. "Compensation" shall include anti -terrorism training pay received by members of the Plan who are employed in the Fire Department, but only such pay which is earned and payable on or after July 1, 2006. Effective October 7, 2018, anti- terrorism training pay received by members of this Plan who are employed in the Fire Department is incorporated into base pay and thus considered Compensation under subsection A on and after such date.
G. "Compensation" shall include disability leave payments paid by the City to a member pursuant to which a member continues to receive full monthly compensation, including but not limited to, disability leave payments made pursuant to Labor Code Section 4850.
H. "Compensation" shall include Peace Officer Standards Training (POST) payments paid by the City to a member except that only POST payments received by such Tier 2 member on or after March 31, 2017 shall be a factor for any computation made under this Chapter.
I. Notwithstanding any other provisions of Chapter 3.36, "Compensation" shall not include any non-pensionable compensation increase, which represents a wage increase, that is effective on or after January 3, 2016. Compensation also shall RD:SH:SH
2/2/2022
T-35906\ 1639013_3.doc 6
Council Agenda: 2/15/22
Item No.: 2.8
DRAFT--Contact the Office of the City Clerk at (408)535-1260 or [email protected] for final document.
not include any subsequent increases to non- pensionable compensation due to future increases to base pay, such as merit increases, step increases, and general wage increases.
PASSED FOR PUBLICATION of title this _____ day of ___________, 2022, by the following vote:
AYES:
NOES:
ABSENT:
DISQUALIFIED:
SAM LICCARDO
Mayor
ATTEST:
TONI J. TABER, CMC
City Clerk