RULES COMMITTEE: 6/21/23
Item: B.1
File ID: ROGC 23-243
TO: Honorable Mayor & FROM: Toni J. Taber, CMC
City Council City Clerk
SUBJECT: The Public Record DATE: April 12, 2023
March 29 – April 6, 2023
ITEMS FILED FOR THE PUBLIC RECORD
Letters from Boards, Commissions, and Committees
Letters from the Public
1. Letter from Terri Williams dated June 15, 2023 regarding disabled retirees. ____________________________
Toni J. Taber, CMC
City Clerk
TJT/tt
I am writing again to appeal to the Mayor and City Council to amend City of San Jose Municipal codes (CSJ MC) that are discriminatory to a class of disabled retirees. The existing ordinances, as currently written, discriminate against CSJ employees with a disability- connected retirement who were offered the retirement eligibility of 30 years of service at any age as the muni code does not include this option for this class of employees/ retirees. .
To bring these CSJ MCs in line with the other two retirement eligibility criterion offered to both regular and disabled employees, specifically and list them, the municipal codes relating to disability retirees should be amended to add the “30 years-of-service” retirement option at any age.
This is critical for those employees who started working for the CSJ as a part time employee or ones who were younger than 18 years old when they were hired, as in my case. The addition of the years of service option is critical as this class of employees is being excluded from retirement options offered to service-connected retirees.
Retirement age vs Years of service
I am in search of some information or guidelines that would explain why the 30 years of service at any age retirement eligibility is being excluded from the municipal codes that govern disability retirees in the FCERS. The specific municipal codes I am referring to are:
3.28.1325 - Report of earnings from outside occupation
3.28.1330 - Deductions - Recipient’s earning from outside occupation
3.28.1400 - Recipient attaining age fifty-five (sixty-two for tier 2 recipients) to be deemed permanently disabled.
The muni code only includes two of the three retirement eligibilities that are offered to regular service retirees in the section pertaining to disabled retirees. I am curious why the group of disabled retirees who would have retired under the 30 years of service at any age eligibility is being excluded? Those in the subclass (disabled and have reached their 30th anniversary) are having the terms of their retirement offer changed and are forced to follow the terms of the next eligibility criterion which would be the age of 55. When tier 2 was created and the muni codes associated to disability retirees were amended in 2012 it gave additional proof that the eligibility requirements for service retirement and the rules for disabled retirees go hand in hand. Yet, the 30 years of service group are excluded and by that exclusion are being treated differently than other disability retirees.
I have brought this topic up in the past via emails to city council, and the city managers office and spoke for a few minutes at a council meeting. No one has provided a sufficient answer as to why this group of disabled city employees has had their rules for retirement changed; therefore, being discriminated against. I have been given different reasons for the exclusion of the 30 years at any age option for disabled retirees such as :
”55 is normal retirement age”. That is not true when you offer 30 years of service at any age, normal retirement age is when that threshold is met. In such circumstances, normal retirement age can be under 55. Normal retirement age is the age at which an employee is eligible to retire with unreduced benefits.
“Not working the whole 30 years.” Those disabled retirees that are under the age based retirement eligibility of 55 or 62 do not work up until their 55th or 62nd birthday either, but their retirement eligibility rules are not changed. This is no different from a “30 years at any age retiree” not working up until their 30th anniversary. Every year a disabled retiree under the aged based option gets one year closer to meeting their retirement criteria on their birthday and likewise, those under the 30 year anniversary criteria get one year closer on their work anniversary. “Disabled retirees are treated 'similarly.” That is untrue. If we are were treated similarly, then disabled retirees would get to abide by the retirement eligibility that we were hired under and not have that changed because we are disabled and started working for the CSJ at a younger age .
During my research on this topic I read through the EEOC compliance manual. The EEOC does not force retirement and disability retirement options to be offered, but where an employer establishes either or both types of plans, however, it may not discriminate against employees with disabilities. An employer may not discriminate against a qualified individual with a disability, on the basis of disability, with respect to fringe benefits and retirement plans are fringe benefits. I know that the Americans with Disability Act (ADA) does not require that service retirement and disability retirement plans provide the same level of benefits, because they are two separate benefits which serve two different purposes. As long as all employees may participate in the service retirement plan on the same terms, regardless of the existence of a disability. By excluding one of the retirement eligibility criteria you are changing the terms of the retirement that was offered to that subclass of retirees and that is punitive.
I have been told that only the City Council can amend the municipal code. I have also been told that the department associated to the specific municipal codes works with the city council on amending the codes. I have attempted with both City Council and Retirement Services and I have exhausted all my administrative efforts to get these discriminatory municipal codes changed to be inclusive of all retirees regardless of what retirement eligibility they fall under. The City of San Jose, ORS and the municipal code are not abiding by the terms I was offered at the time of my employment. I have reached one criterion that was in place. Thirty (30) years has gone by whether I worked or was disabled and I should be deemed permanently disabled and released from the rules and obligations imposed on disabled retirees. The CSJ has always tried to be a fair place for its citizens, yet it discriminates against employees who dedicated years of service and were unfortunately injured and forced to take disability retirements. I would like support from City Council to correct this discriminatory action against the class of disability retirees that this affects.
Terri Williams
Former Employee and Disabled Retiree