§ 11-54.  RETIREMENT.
   (a)   There is hereby created and established a trust fund for the 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be as set forth under Chapter 185, Florida Statutes; provided, however, that Section 185.16, Florida Statutes, shall be superseded in its entirety by § 11-54(d) and (e).  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:
      ACCUMULATED CONTRIBUTIONS. A member’s own contributions to the System.
      ACTUARIAL EQUIVALENT. A benefit or amount of equal value, based upon the RP 2000 Mortality Table (unisex for equivalence) and an interest rate of 8% per year.
      AVERAGE FINAL COMPENSATION. One- twelfth of the average annual compensation of the five best years of the last ten years of credited service prior to retirement, termination or death.
      BENEFICIARY. 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.
      BOARD. The Board of Trustees, which shall administer and manage the System herein provided and serve as trustees of the Fund.
      CODE. The Internal Revenue Code of 1986, as amended from time to time.
      COMPENSATION or SALARY. 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. Effective for overtime earned after July 1, 2011, overtime hours included in this definition will be limited to no more than 300 hours per year of service; there is no limitation on the number of hours of overtime included in this definition prior to July 1, 2011. Additionally, unused accumulated sick and annual leave earned after July 1, 2011 may not be included in this definition but hours earned before July 1, 2011, which remain unused at retirement and are paid for by the town in accordance with the town's policies for payment for unused sick or annual leave will be included regardless of when the payment is made. These changes only apply to members who are not eligible for normal retirement on July 1, 2011.
         (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 Section 401(a)(17) limitation (as amended by the Omnibus Budget Reconciliation Act of 1993), which limitation of $200,000 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 Section401(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 Section 401(a)(17).
         (C)   Effective for payments after December 31, 2008, as provided for by Internal Revenue Code Section 414(u)(7), this definition of COMPENSATION shall include any differential wage payment from the employer to a member as a result of the member’s absence from employment while serving in qualified military service.
      CREDITED SERVICE. 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 five 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 five 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 five 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 one year from the date of his or her release from such active service except that members who die or become disabled while serving on active duty military service shall be entitled to the rights of this section even though such member was not re-employed by the town. Members who die or become disabled while on active duty military service shall be treated as though re-employed the day before the member became disabled or died, was credited with the service they would have been entitled to under this section, and then either died a non-duty death while employed or became disabled from a non-duty disability.
      DEPARTMENT. The Town of Melbourne Beach Police Department.
      EFFECTIVE DATE. August 25,1981, with a complete restatement of the plan effective upon adoption of this section.
      FUND. The trust fund established herein as part of the System.
      MEMBER. 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.
      POLICE OFFICER. 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.
      RETIREE. A member who has entered retirement status.
      RETIREMENT. A member’s separation from town employment as a police officer with immediate eligibility for receipt of benefits under the plan.
      SYSTEM. The Town of Melbourne Beach Police Officers’ Retirement System as contained herein and all amendments thereto.
      TOWN. The Town of Melbourne Beach, Florida.
   (c)   Powers of the Board of Trustees.  The Board of Trustees selected in accordance with the provisions of Section 185.05(1)(a), Florida Statutes, shall have four year terms effective for terms beginning after the effective date of this amendment [by Ord. 2012-02].
      (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)   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)   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.  The actual custody and supervision of the Fund, and assets thereof, shall be vested in the Board of Trustees.
      (4)   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)   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)   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 sub- paragraph.  The Board of Trustees may invest  up to the aggregate of 70% (at market) of the Retirement System's investments in stocks.  Further, 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 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.
         (H)   Notwithstanding anything else in this subsection and as provided in Section 215.473, Florida Statutes, the Board of Trustees must identify and publicly report any direct or indirect holdings it may have in any scrutinized company, as defined in that section. Beginning January 1, 2010, the Board must proceed to sell, redeem, divest, or withdraw all publicly traded securities it may have directly in that company. The divestiture of any such security must be completed by September 10, 2010. The Board and its named officers or investment advisors may not be deemed to have breached their fiduciary duty in any action taken to dispose of any such security, and the Board shall have satisfactorily discharged the fiduciary duties of loyalty, prudence, and sole and exclusive benefit to the participants of the pension fund and their beneficiaries if the actions it takes are consistent with the duties imposed by Section 215.473, Florida Statutes, as provided for in Section 185.06(7), Florida Statutes, and the manner of the disposition, if any, is reasonable as to the means chosen. For purposes of determining which companies are scrutinized companies, the Board may utilize the list of scrutinized companies as developed bv the Florida State Board of Administration. No person may bring any civil, criminal, or administrative action against the Board of Trustees or any employee, officer, director, or advisor of such pension fund based upon the divestiture of any security pursuant to this subsection.
      (7)   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)   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.
      (9)   The Board shall sustain no liability whatsoever for the sufficiency of the Fund to meet the payments and benefits herein provided.
      (10)   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)   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)   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.
      (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 November 14, 2007 shall continue as a member without interruption.
         (B)   Each police officer hired after November 14, 2007 (effective date of Ordinance No. 2007-09) shall become a member of this System as a condition of employment on his or her 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 or beneficiaries;
         (B)   Authorization of payroll deduction;
         (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 or her 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.  A retiree may change his or her joint pensioner or beneficiary up to two times in accordance with the provisions of § 11-54(g)(2).
   (e)   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.   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 § 11-54(e)(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.   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.   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.   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 ten years of service, the beneficiary(ies) named by the member shall be entitled to a refund of 100%, 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 ten 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)   Defined contribution component. Pursuant to the requirements of Florida Statutes Section 185.35(6) effective October 1, 2015, a defined contribution plan component is established in addition to the defined benefit component of this local law plan. Where the Chapter 185 money exceeds $54,044.91, this defined contribution component will be funded with one half of each dollar received over the $54,044.91. Once the plan is funded, the Board of Trustees has the authority to adopt rules regarding the operation of the defined contribution component of the local law plan.
      (5)   Separation from Department; refunds.
         (A)   If any member leaves the service of the Department before accumulating aggregate time of ten 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 ten 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)   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 subsection (f)(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 the Board determines entitlement to such disability retirement and will continue to be paid 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 of 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 electrodardiogram, failed to reveal any evidence of such condition, and, further, that such presumption shall not apply to benefits payable under or granted in a policy of life insurance or disability insurance. 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.
         (B)   The final decision as to whether a member meets the requirements for duty disability pension rests with the Board and shall be based on substantial competent evidence on the record as a whole.
      (2)   Nonservice-incurred.  Any member who receives a nonservice-connected injury, disease or disability and 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 subsection (f)(4) on or after the effective date of the plan, shall receive a refund of his own  member contributions.  This subsection (f)(2) shall  not apply to any member with ten or more years of service.  The benefit payable to a member who retires from the service of the town, after ten years of service, with a total and permanent disability as a result of a non- line of duty injury or illness is the accrued normal retirement benefit payable for ten years certain and life, but shall not be less than 25% of his or her average monthly compensation as of the member’s disability retirement date. The benefit shall be payable as of the date that the Board determines entitlement to such disability retirement. The final decision as to whether a member meets the requirements for duty disability pension rests with the Board and shall be based on substantial competent evidence on the record as a whole.
      (3)   Determination of disability. All questions relating to eligibility for initial payment or continuance of disability benefits shall be determined by the Board of Trustees, taking into consideration the recommendations of a qualified physician or surgeon appointed by the Board of Trustees and based upon the methods and procedures established by the Board of Trustees.  In the event that any disabled member could otherwise still be employed or reemployed as a police  officer  within the  department, except that the position for which he is qualified is not available due to being currently filled, the benefit shall be payable only until such position again becomes available.  The Board shall require, at its expense, periodic medical reexamination of disabled members. The final decision as to whether a member meets the requirements for disability pension rests with the Board and shall be based on substantial competent evidence on the record as a whole.
      (4)   Exclusions.  Monthly disability benefits shall not be payable in cases where the disability is a result of:
         (A)   Excessive and habitual use by the police officer of drugs, intoxicants, or narcotics;
         (B)   Injury or disease sustained by the police officer while willfully and illegally participating in fights, riots, civil insurrections or while committing a crime;
         (C)   Injury or disease sustained while serving in the Armed Forces. This exclusion does not affect members who have become disabled as a result of intervening military service under the federal Heroes Earnings Assistance and Relief Tax Act of 2008 (H.R. 6081; P.L. 110-245);
         (D)   Injury or disease sustained while working for anyone other than the Town and arising out of such employment; or
         (E)   Injury or disease sustained by the police officer after employment has terminated.
      (5)   Recovery.  In the event of recovery from disability as determined by the Board and immediate re-employment by the town as a police officer, the period of time while disabled shall be included as credited service.  In the event of the recovery, but without immediate re-employment as an employee, the member's future benefits shall be determined as though initially terminated employment on his date of disability.
      (6)   Medical Board.  No police officer shall be permitted to retire under the provisions of this subsection (f) until examined, by a duly qualified physician, psychologist/psychiatrist, or surgeon to be selected by the Board of Trustees for that purpose, and found to be disabled in the degree and manner specified in this subsection (f).  Any police officer retiring under this subsection (f)  shall be examined periodically by a duly qualified physician, psychologist/psychiatrist, or surgeon to be selected by the Board of Trustees for that purpose, to determine if such disability has ceased to exist.
         (A)   Permanent and total disability.  A police officer will be considered totally disabled if, in the opinion of the Board of Trustees, said police officer is wholly prevented from rendering useful and efficient service as a police officer; and a police officer will be considered permanently disabled if, in the opinion  of  Board  of  Trustees,  said  police officer is likely to remain so disabled continuously and permanently from a cause other than as specified in subsection (f)(4).
         (B)   Nonservice-incurred.  A non- service-incurred injury, disability, or disease shall be one incurred other than in the line of duty.
   (g)   Optional forms of benefits.
      (1)   In lieu of the amount and form of retirement income payable in the event of normal, early or disability retirement, a member, upon written request to the Board of Trustees and subject to the approval of the Board of Trustees, may elect to receive a retirement income or benefit of equivalent actuarial value payable in accordance with one of the following options:
         (A)   Life only. A retirement income of larger monthly amount, payable to the police officer for his or her lifetime only.
         (B)   Survivor annuity. A retirement income of a modified monthly amount, payable to the police officer during the joint lifetime of the police officer and a joint pensioner designated by the police officer, and following the death of either of them, 100%, 75%, 66 2/3%, or 50% of such monthly amount payable to the survivor for the lifetime of the survivor.
         (C)   Other. Such other amount and form of retirement payments or benefit as, in the opinion of the Board of Trustees, will best meet the circumstances of the retiring member.
      (2)   The member upon electing any option of this section will designate the joint pensioner or beneficiary (or beneficiaries) to receive the benefit, if any, payable under the plan in the event of the member’s death, and will have the power to change such designation from time to time. Such designation will name a joint pensioner or one or more primary beneficiaries where applicable. If a member has elected an option with a joint pensioner or beneficiary and his or her retirement income benefits have commenced, he or she may thereafter change the designated joint pensioner or beneficiary up to twice in accordance with Section 185.341, Florida Statutes, without the approval of the Board of Trustees or the current annuitant or beneficiary. The retired member is not required to provide proof of the good health of the joint annuitant or beneficiary being removed, and the joint annuitant or beneficiary being removed need not be living. Any retired member who desires to change his or her joint annuitant or beneficiary shall file with the Board of Trustees a notarized notice of such change. Upon receipt of a completed change of joint annuitant form or such other notice, the Board of Trustees shall adjust the retired member's monthly benefit by the application of actuarial tables and calculations developed to ensure that the benefit paid is the actuarial equivalent of the present value of the member's current benefit and there is no impact to the Plan. The beneficiary or joint annuitant being removed will be assumed deceased by the actuary in determining the actuarially equivalent amount of the revised monthly payment. No retired member's current benefit shall be increased as a result of the change of beneficiary. The retired member shall also be responsible for the cost of the recalculation of the benefit by the actuary. Any subsequent change may be made only if the Board of Trustees consents to such change and if the joint pensioner last previously designated by the police officer is alive when he or she files with the Board of Trustees a request for such change. The consent of a member’s joint pensioner or beneficiary to any such change shall not be required. The Board of Trustees may request such evidence of the good health of the joint pensioner that is being removed as it may require and the amount of the retirement income payable to the police officer upon the designation of a new joint pensioner shall be actuarially redetermined taking into account the ages and sex of the former joint pensioner, the new joint pensioner, and the member. Each such designation will be made in writing on a form prepared by the Board of Trustees, and on completion will be filed with the Board of Trustees. In the event that no designated beneficiary survives the member, such benefits as are payable in the event of the death of the member subsequent to his or her retirement shall be paid as provided in § 11-54(h).
      (3)   Retirement income payments shall be made under the option elected in accordance with the provisions of this section and shall be subject to the following limitations:
         (A)   If a member dies prior to his or her normal retirement date or early retirement date, whichever first occurs, no benefit will be payable under the option to any person, but the benefits, if any, will be determined under § 11-54(e)(3).
         (B)   If the designated beneficiary (or beneficiaries) or joint pensioner dies before the member’s retirement under the plan, the option elected will be canceled automatically and a retirement income of the normal form and amount will be payable to the member upon his or her retirement as if the election had not been made, unless a new election is made in accordance with the provisions of this section or a new beneficiary is designated by the member prior to his or her retirement.
         (C)   If both the retired member and the designated beneficiary (or beneficiaries) die before the full payment has been effected under any option providing for payments for a period certain and life thereafter, made pursuant to the provisions of this section, the Board of Trustees may, in its discretion, direct that the commuted value of the remaining payments be paid in a lump sum and in accordance with § 11-54(h).
         (D)   If a member continues beyond his or her normal retirement date pursuant to the provisions of § 11-54(e)(1)(A) and dies prior to actual retirement and while an option made pursuant to the provisions of this section is in effect, monthly retirement income payments will be made, or a retirement benefit will be paid, under the option to a beneficiary (or beneficiaries) designated by the member in the amount or amounts computed as if the member had retired under the option on the date on which death occurred.
         (E)   No member may make any change in his or her retirement option after the date of cashing or depositing his or her first retirement check.
   (h)   Beneficiaries.
      (1)   Each member may, on a form provided for that purpose, signed and filed with the Board of Trustees, designate a choice of one or more persons, named sequentially or jointly, as his or her beneficiary (or beneficiaries) to receive the benefit, if any, which may be payable in the event of the member’s death, and each designation may be revoked by such police officer by signing and filing with the Board of Trustees a new designation or beneficiary form.
      (2)   If no beneficiary is named in the manner provided by division (h)(1), or if no beneficiary designated by the member survives him or her, the death benefit, if any, which may be payable under the plan with respect to such deceased member shall be paid by the Board of Trustees to the estate of such deceased member, provided that in any of such cases the Board of Trustees, in its discretion, may direct that the commuted value of the remaining monthly income payments be paid in a lump sum. Any payment made to any person pursuant to this subsection shall operate as a complete discharge of all obligations under the plan with regard to such deceased police officer and shall not be subject to review by anyone, but shall be final, binding and conclusive on all persons ever interested hereunder.
   (i)   Internal Revenue Code section 415 limits.
      (1)   Basic limitations. Subject to the adjustments in paragraph 3, the maximum amount of the actual annual retirement income paid in any year with respect to a participant under this Plan attributable to employer provided benefits shall not exceed the dollar amount allowable for any calendar year pursuant to section 415(b) of the Code, as adjusted in such calendar year for increases in the cost of living in accordance with regulations issued by the Secretary of the Treasury under section 415(d) of the Code. For purposes of applying the basic limitation, benefits payable in any form other than a straight life annuity with no ancillary benefits shall be adjusted, as provided by Treasury Regulations, so that such benefits are the actual equivalent of a straight life annuity. For purposes of this subsection, the following benefits shall not be taken into account:
         (A)   Any ancillary benefit which is not directly related to retirement income benefits;
         (B)   Any other benefit not required under section 415(b)(2) of the Code and Treasury Regulations thereunder to be taken into account for purposes of the limitation of section 415(b)(1) of the Code.
      (2)   Participation in other defined benefit plans. The limitation of this subsection with respect to any participant who at any time has been a participant in any other defined benefit plan (as defined in section 414(j) of the Code) maintained by the town shall apply as if the total benefits payable under all defined benefit plans in which the participant has been a participant were payable from one plan.
      (3)   Adjustments in limitations.
         (A)   In the event the participant’s retirement benefits become payable before age 62, the maximum amount of annual retirement income limitation prescribed by this subsection shall be reduced in accordance with regulations issued by the Secretary of the Treasury pursuant to the provisions of section 415(b) of the Code, so that such limitation (as reduced) equals an annual benefit (beginning when such retirement income begins) which is equivalent to the Code section 415(b) maximum amount of annual retirement income beginning at age 62. This limitation shall not apply to qualified police or firefighters as that term is defined in Code section 415(b)(2)(G).
         (B)   In the event the participant’s benefit is based on at least 15 years of credited service, the adjustments provided for in subparagraph (A) above shall not apply.
         (C)   The reduction provided for in subparagraph (A) above shall not be applicable to disability benefits or pre-retirement death benefits.
         (D)   In the event the participant’s retirement benefit becomes payable after age 65, for purposes of determining whether this benefit meets the basic limitation set forth in paragraph (1) herein, such benefit shall be adjusted so that it is actuarially equivalent to the benefit beginning at age 65. This adjustment shall be made using an assumed interest rate of 5% and shall be made in accordance with regulations promulgated by the Secretary of the Treasury or his delegate.
         (E)   Less than ten years of service. The maximum retirement benefits payable under this section to any participant who has completed less than ten years of credited service with the town shall be the amount determined under paragraph (1) multiplied by a fraction, the numerator of which is the number of the participant’s years of credited service and the denominator of which is ten. The reduction provided for in this subparagraph shall not be applicable to disability benefits or pre-retirement death benefits.
         (F)   $10,000 limit. Notwithstanding the foregoing, the retirement benefit payable with respect to a participant shall be deemed not to exceed the limitations in this subsection if the benefits payable, with respect to such participant under this plan and under all other qualified defined benefit pension plans to which the town contributes, do not exceed $10,000 for the applicable plan year and for any prior plan year and the town has not at any time maintained a qualified defined contributions plan in which the participant participated.
         (G)   Reduction of benefits. Reduction of benefits and/or contributions to all plans, where required, shall be accomplished by first reducing the participant’s benefit under any defined benefit plans in which the participant participated, such reduction to be made first with respect to the plan in which participant most recently accrued benefits and thereafter in such priority as shall be determined by the Board and the plan administrator of such other plans, and next, by reducing or allocating excess forfeitures for defined contribution plans in which the participant participated, such reduction to be made first with respect to the plan in which participant most recently accrued benefits and thereafter in such priority as shall be established by the Board and the plan administrator for such other plans provided, however, that necessary reductions may be made in different manner and priority pursuant to the agreement of the Board and the plan administrator of all other plans covering such participant.
         (H)   Cost-of-living adjustments. The limitations as stated herein shall be adjusted annually in accordance with any cost-of-living adjustments prescribed by the Secretary of the Treasury pursuant to section 415(d) of the Code.
      (4)   Additional limitation on pension benefits. Notwithstanding anything herein to the contrary:
         (A)   Effective for retirees who first became members after January 1, 1980, the normal retirement benefit or pension payable shall not exceed 100% of his or her average final compensation. However, nothing contained in this section shall apply to supplemental retirement benefits or to pension increases attributable to cost- of-living increases or adjustments.
         (B)   No member of the System shall be allowed to receive a retirement benefit or pension which is in part or in whole based upon any service with respect to which the member is already receiving, or will receive in the future, a retirement benefit or pension from another retirement system or plan. This restriction does not apply to social security benefits or federal benefits under Chapter 67, Title 10, U.S. Code.
      (5)   This section shall be effective for distributions after December 31, 2001.
   (j)   Direct transfer of eligible rollover distributions.
      (1)   General.  This subsection applies to distributions made on or after January 1, 1993.  Notwithstanding any provision of the plan to the contrary that would otherwise limit a distributee's election under this subsection, a distributee may elect, at the time and in the manner prescribed by the Board of Trustees, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover.
      (2)   Definitions.
         (A)   Eligible rollover distribution.  An eligible rollover is any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: any distribution that is one of a series of substantially equal periodic payments (not less frequently than annually) made for the life of (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; any distribution to the extent such distribution is required under section 401(a)9) of the U.S. Internal Revenue Code; and the portion of any distribution that is not includable in gross income.
         (B)   Eligible retirement plan.  An eligible retirement plan is an individual retirement account described in section 408(a) of the U.S. Internal Revenue Code, an individual retirement annuity described in section 408(b) of the U.S. Internal Revenue Code, an annuity plan described in section 403(a) of the U.S. Internal Revenue Code, that accepts the distributee’s eligible rollover distribution.  However, in the case of an eligible rollover distribution to the surviving spouse, an eligible retirement plan is an individual retirement account or individual retirement annuity.
         (C)   Distributee.  A distributee includes an employee or former employee.  In addition, the employee’s or former employee’s surviving spouse is a distributee with regard to the interest of the spouse.
         (D)   Direct rollover.  A direct rollover is a payment by the plan to the eligible retirement plan specified by the distributee.
   (k)   Required distributions.
      (1)   Effective for distributions after December 31, 1996, in accordance with Internal Revenue Code section 401(a)(9), all benefits under this plan will be distributed, beginning not later than the required beginning date set forth below, over a period not extending beyond the life expectancy of the member or the life expectancy of the member and a beneficiary.
      (2)   Any and all benefit payments shall begin by the later of:
         (A)   April 1 of the calendar year following the calendar year of the member’s retirement date; or
         (B)   April 1 of the calendar year following the calendar year in which the member attains age 72, provided the member had not attained age 70 1/2 by December 31, 2019.
      (3)   If an employee dies before his entire vested interest has been distributed to him, the remaining portion of such interest will be distributed at least as rapidly as provided for under this plan.
      (4)   All distributions under this plan will be made in accordance with this section, Code section 401(a)(9) and the regulations thereunder, notwithstanding any provisions of this plan to the contrary, effective beginning January 1, 2003.
   (l)   Miscellaneous provisions.
      (1)   Interest of member in System. All assets of the Fund shall be used exclusively for the benefit of members or their beneficiaries pursuant to Chapter 112, Florida Statutes. At no time shall any part of the corpus or income of the Fund be used for or diverted to any purpose other than for the exclusive benefit of members and their beneficiaries.
      (2)   No amendment or ordinance shall be adopted by the Town Commission which shall have the effect of reducing the then accrued benefits of members or a member’s beneficiaries. This section has no effect on prospective benefits.
      (3)   The System shall be created and maintained in the following manner:
         (A)   By the net proceeds of the .85% excise tax which may be imposed by the town upon certain casualty insurance companies on their gross receipts of premiums from holders of policies, which policies cover property within the corporate limits of the town. Effective October 1, 2015, the Town can offset its contribution by up to $54,044.91 of the annual Chapter 185 receipts. To the extent that the Chapter 185 money annual receipt is in excess of $54,044.91, the Town and its members will equally divide the excess, with the member half being used to fund the defined contribution component provided for in § 11-54(e)(4) and the Town portion being used to offset its contribution to the Plan.
         (B)   By the payment to the Fund of the member contribution as provided for in § 11-54(d) for the duly appointed and enrolled members of the System. No member shall have any right to the money so paid into the fund except as provided in this section.
         (C)   By all fines and forfeitures imposed and collected from any member officer because of the violation of any rule adopted by the Board of Trustees.
         (D)   By payment by the municipality or other sources of a sum equal to the normal cost and the amount required to fund any actuarial deficiency shown by an actuarial valuation as provided in Part VII of Chapter 112, Florida Statutes.
         (E)   By all gifts, bequests and devises when donated to the Fund.
         (F)   By all accretions to the Fund by way of interest or dividends on bank deposits or otherwise.
         (G)   By all other sources of income now or hereafter authorized by law for the augmentation of the System.
      (4)   Qualification of System:
         (A)   It is intended that the Plan be administered at all times in accordance with the provisions of the Internal Revenue Code and the corresponding Treasury Regulations applicable to a governmental defined benefit retirement plan.
         (B)   In recognition of the changing requirements of Plan qualification, the Board shall adopt an administrative policy setting forth the required provisions for tax qualification. Such a policy shall be amended by the Board as required to maintain continuing compliance with the Internal Revenue Code and that policy and any amendments shall have the force of law as if adopted by the Town Commission.
   (m)   Exemption from execution; non-assignability.
      (1)   Except as otherwise provided by law, the pensions, annuities, or any other benefits accrued or accruing to any person under the provisions of this section and the accumulated contributions and the cash securities in the Fund created under this section are hereby exempted from any Florida state, county or municipal tax and shall not be subject to execution, attachment, garnishment or any legal process whatsoever and shall be unassignable; however, the Fund is subject to an income deduction order for alimony and child support.
      (2)   Upon written request by the retiree, the Board of Trustees may authorize the Plan administrator to withhold from the monthly retirement payment funds necessary to:
         (A)   Pay for benefits being received through the town;
         (B)   Pay the certified bargaining agent; or
         (C)   Pay for premiums for accident health and long-term care insurance for the retiree, the retiree's spouse and dependents. A retirement plan does not incur liability for participation in this permissive program if its actions are taken in good faith pursuant to Section 185.05(6), Florida Statutes.
   (n)   Pension validity. The Board shall have the power to examine into the facts upon which any pension shall heretofore have been granted under any prior or existing law, or shall hereafter be granted or obtained erroneously, fraudulently or illegally for any reason. Said Board is empowered to purge the pension rolls of any person heretofore granted a pension under prior or existing law or heretofore granted under this section if the same is found to be erroneous, fraudulent or illegal for any reason: and to reclassify any person who has heretofore under any prior or existing law been or who shall hereafter under this section be erroneously, improperly or illegally classified.
   (o)   Forfeiture of pension.
      (1)   Any member who is convicted of any one of the following offenses committed prior to retirement, or whose employment is terminated by reason of his or her admitted commission, aid or abetment of the following specified offenses shall forfeit all rights and benefits under this System, except for the return of his or her accumulated contributions as of the date of termination. Specified offenses are as follows:
         (A)   The committing, aiding or abetting of an embezzlement of public funds:
         (B)   The committing, aiding or abetting of any theft by a public officer or employee from employer;
         (C)   Bribery in connection with the employment of a public officer or employee;
         (D)   Any felony specified in Chapter 838, Florida Statutes;
         (E)   The committing of an impeachable offense; or
         (F)   The committing of any felony by a public officer or employee who willfully and with intent to defraud the public or the public agency, for which he or she acts or in which he or she is employed, of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains or attempts to obtain a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties or position of his or her public office or employment position.
      (2)   CONVICTION shall be defined as an adjudication of quilt by a court of competent jurisdiction; a plea of guilty or nolo contendere; a jury verdict of guilty when adjudication of quilt is withheld and the accused is place on probation: or a conviction by the Senate of an impeachable offense.
      (3)   COURT shall be defined as any state or federal court of competent jurisdiction which is exercising its jurisdiction to consider a proceeding involving the alleged commission of a specified offense. Prior to forfeiture, the Board shall hold a hearing on which notice shall be given to the member whose benefits are being considered for forfeiture. Said member shall be afforded the right to have an attorney present. No formal rules of evidence shall apply, but the member shall be afforded a full opportunity to present his or her case against forfeiture.
      (4)   Any member who has received benefits from the System in excess of his or her accumulated contributions after member’s rights were forfeited shall be required to pay back to the Fund the amount of the benefits received in excess of his or her accumulated contributions. The Board may institute all legal action necessary to recover such funds.
      (5)   False or misleading statements made to obtain retirement benefits prohibited.
         (A)   It is unlawful for a person to willfully and knowingly make, or cause to be made, or to assist, conspire with or urge another to make, or cause to be made, any false, fraudulent or misleading oral or written statement or withhold or conceal material information to obtain any benefit under this plan.
         (B)   1.   A person who violates subparagraph (1) commits a misdemeanor of the first degree, punishable as provided in Sections 775.083 or 775.082, Florida Statutes.
            2.   In addition to any applicable penalty, upon conviction for a violation described in subparagraph (1), a participant or beneficiary of this plan may, in the discretion of the Board of Trustees, be required to forfeit the right to receive any or all benefits to which the person would otherwise be entitled to under this plan. For purposes of subparagraph (1) CONVICTION means a determination of guilt that is the result of a plea or a trial regardless of whether adjudication is withheld.
   (p)   Indemnification.
      (1)   To the extent not covered by insurance contracts in force from time to time, the town shall indemnify and hold harmless members of the Board from all personal liability from damages and costs, including court costs and trial and appellate attorney’s fees, arising out of claims, suits, litigation, or threat of same, herein referred to as “claims,” against these individuals because of acts or circumstances connected with or arising out of their official duty as members of the Board. The town reserves the right, in its sole discretion, to settle the claim at any time, and to appeal or not appeal from any adverse judgment or ruling, and in either event will indemnify and hold harmless any members of the Board from the judgment, execution, or levy thereon.
      (2)   This section shall not apply nor shall the town be responsible in any manner to defend or pay for claims arising out of acts or omissions of members of the Board which constitute felonies or gross malfeasance or gross misfeasance in office.
('75 Code, § 18-51)  (Ord. 81-9, passed 8-25-81; Am. Ord. 90-05, passed 5-9-90; Am. Ord. 94-03, passed 10-18-94; Am. Ord. 96-06, passed 9-18-96; Am. Ord. 98-05, passed 10-29-98; Am. Ord. 2002-01, passed 2-20-02; Am. Ord. 2003-03, adopted 11-17-04; Am. Ord. 2007-09, adopted 11-14-07; Am. Ord. 2007-13, adopted 1-23-08; Am. Ord. 2009-06, adopted 4-2-09; Am. Ord. 2012-02, adopted 5-16-12; Am. Ord. 2017-04, adopted 11-15-17; Am. Ord. 2020-06, passed 10-21-20)