On July 19, 2000, the Portland City Council passed and referred the following measure to be decided by voters at the municipal General Election on November 7, 2000.
CAPTION: Amends Charter; Prohibits disability payments to incarcerated beneficiaries after conviction.
QUESTION: Shall Fire Police Disability and Retirement Board be prohibited from making disability payments to incarcerated members convicted of a crime?
SUMMARY: Section 5-306 (c) of the City Charter places limits on the amount of disability benefits to members of the Fire and Police Disability and Retirement Fund may receive. This measure would add to Section 5-306 (c). It would prohibit the payment of disability benefits to any member while incarcerated after conviction of a crime. The member's spouse would receive 50% of the disability payment while the member was incarcerated, unless the spouse was also incarcerated. Minor children would receive 50% of the disability payment if there was no spouse or spouse was incarcerated.
PROPOSED CHARTER LANGUAGE:
Charter of the City of Portland, Oregon
CHAPTER 5 FIRE AND POLICE DISABILITY, RETIREMENT AND DEATH BENEFIT PLAN
Section 5-306. Service-Connected and Occupational Disability Benefits.
(a) Eligibility for Service-Connected Disability Benefit. An Active Member shall be eligible for the service-connected disability benefit when unable to perform the Member's required duties because of an injury or illness arising out of and in the course of the Member's employment in the Bureau of Police or Fire. The Board shall determine the existence of a disability and whether it arises out of and in the course of such employment. A Member shall not be eligible for the service- connected disability benefit based on an injury suffered in assaults or combats which are not connected to the job assignment and which amount to a deviation from customary duties or incurred while engaging in, or as the result of engaging in, any recreational or social activities solely for the Member's personal pleasure. A Member shall not be eligible for the service-connected disability benefit on the basis of a condition of stress or mental disorder unless:
1. The employment conditions producing the stress or mental disorder exist in a real and objective sense;
2. The employment conditions producing the stress or mental disorder are conditions other than conditions generally inherent in police or fire employment or reasonable disciplinary, corrective, or job performance evaluation actions by the employer, or cessation of employment;
3. There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community;
4. There is clear and convincing evidence that the stress or mental disorder arose out of and in the course of employment as an Active Member; and
5. The Member's employment conditions are the primary cause of the stress or mental disorder.
(b) Eligibility for Occupational Disability Benefit. An Active Member shall be eligible for the occupational disability benefit when unable to perform the Member's required duties because of heart disease, hernia of abdominal cavity or diaphragm, AIDS, AIDS-related complex, tuberculosis, hepatitis B, or pneumonia (except terminal pneumonia). A Member shall not be eligible for an occupational disability benefit because of heart disease unless the Member has five or more Years of Service when the disability arises. The Board shall deny an occupational disability benefit if it determines, by a preponderance of the evidence, that the disability was not contracted as a result of service as a police officer or fire fighter. No Member shall be eligible to receive a benefit for an occupational disability incurred while receiving benefits under Section 5-307, unless such occupational disability is incurred within two years after such Member had commenced and continued to receive benefits under Section 5-307, or unless such occupational disability is a recurrence of an occupational disability which became disabling and was compensated for under this Section.
(c) Amount of Benefits. During the period the Member continues to be eligible under Subsection (a) or (b) benefits shall be paid as follows:
1. During the first year from the date of disability, the Member shall be paid 75 percent of the Member's rate of Base Pay in effect at disability, reduced by 50 percent of any wages earned in other employment during the period the benefit is payable.
2. The Member shall continue to be paid the benefit described in Paragraph 1 after one year from the date of disability until the earliest date on which the Member is both medically stationary and capable of Substantial Gainful Activity. If not medically stationary sooner, the Member shall be treated as medically stationary for purposes of this Section on the fourth anniversary of the date of disability, regardless of the Member's condition. The Member is capable of Substantial Gainful Activity if qualified, physically and by education and experience, to pursue employment with earnings equal to or exceeding one-third of the Member's rate of Base Pay at disability.
3. After the date described in Paragraph 2, the Member shall be paid 50 percent of the Member's rate of Base Pay at disability, reduced by 25 percent of any wages earned in other employment during the same period.
4. The minimum benefit shall be 25 percent of the Member's rate of Base Pay, regardless of the amount of wages earned in other employment.
5. The Board may suspend or reduce the benefit if the Member does not cooperate in treatment of the disability or in vocational rehabilitation or does not pursue other employment.
6. Notwithstanding any other provision of the Chapter or the City Charter, a disabled Member receiving or eligible to receive Service-Connected and Occupational Disability Benefits under Section 5-306, or Non-Service Connected Disability Benefits under Section 5-307, shall not receive any such benefit for periods of time during which the Member is incarcerated subsequent to and for the conviction of a crime. One-half of such benefit, however, shall be payable to the Member's spouse, if not incarcerated, or Member's minor children, during such periods of incarceration.
(d) Form of Benefits. The service-connected and occupational disability benefits shall be paid bi-weekly during the first year from the date of disability and paid monthly thereafter. The benefits shall be adjusted to reflect changes in the rate of Base Pay of the position held by the Member at disability. The benefits shall cease when the Member reaches Disability Retirement Age under Subsection 5-304(a).
(e) Medical and Hospital Expenses. In addition to the benefits described above, a Member with a service-connected or occupational injury or illness shall be reimbursed from the Fund for reasonable medical and hospital expenses arising from the injury or illness, as determined by the Board. Such reimbursement shall be allowed for expenses incurred while serving as an Active Member, while the Member's disability benefits under this Section continue and, if the Member continues to receive such benefits until Disability Retirement Age, while retirement benefits under Section 5-304 continue to the Member. The Board may limit reimbursement to particular medical and hospital service providers with which it has made fee arrangements and may join in the purchase of services and administration of claims for other employees of the City of Portland.
(f) Waiver of Other Remedies. By applying for and accepting service-connected or occupational disability benefits, a Member waives any right to recover any other compensation or damages from
Section 5-401. Amendment of Chapter.
(a) Effective Date. Chapter 5 shall be amended and restated as se forth in Articles 1 through 3 above and this Article 4, effective July 1, 1990. These amended provisions shall apply to all persons who become Members, and to the surviving spouses and Dependent Minor Children of such Members, after the date they are enacted. These amended provisions also shall apply to all other Members, and to the surviving spouses and Dependent Minor Children of such Members, except as provided in Subsections (b) and (c).
(b) Persons Receiving Benefits. The benefit rights of Members, Surviving Spouses and Dependent Minor Children actively receiving pensions or benefits on January 1, 1990 shall be controlled by Sections 5-113 through 5-123 and 5-126, set out in Article 5 of this Chapter, and by the Supplementary Retirement Program described in Subsection (d), instead of by Article 3, except as follows:
1. Death benefits payable to a spouse shall continue to be paid regardless of whether the spouse remarries.
2. The Surviving Spouse of a Member who dies after June 30, 1990 and after retirement and who has been married to the Member continuously for the 12-month period prior to death shall receive the death benefit provided by Section 5-118 regardless of not having 5 continuous years of marriage before retirement.
3. The Surviving Spouse of a Member who had a nonservice-connected disability, retired and then dies after June 30, 1990 shall receive the death benefit provided by Section 5-118 if the Member had 10 or more Years of Service.
4. The Board may permit a Member receiving disability benefits on January 1, 1990 to make the election described in Subsection (c) at the same time as other Members if the Member's disability is expected to be of less than one year in duration.
5. A Member receiving disability benefits on January 1, 1990 who was not permitted an election under Paragraph 4, who subsequently returns to service as an Active Member in the Bureau of Fire or Police capable of performing full duty without limitation and who earns two more Years of Service under Subsection 5-302(a) shall be given the opportunity, upon completing such two Years of Service, to make the election described in Subsection (c). Upon making such election, the Member shall receive a refund of the Member contributions paid during such two Years of Service.
(c) Election. The provisions of Article 3 shall apply to persons who became Members before the date of enactment and who are not described in Subsection (b) only if such Members make an irrevocable election to have them apply. The election shall be made on forms and under procedures established by the Board. Benefits for a Member who makes the election, and for the Surviving Spouse and Dependent Minor Children of such a Member, shall be determined under Article 3 and not Article 5. Benefits for a Member who does not make the election, and for the Surviving Spouse and Dependent Minor Children of such a Member, shall be determined under Article 5, as modified by Subsection (b), and by the Supplementary Retirement Program described in Subsection (d), and not under Article 3. A Member who retires between January 1, 1990 and June 30, 1990 shall choose at retirement the level of death benefit after retirement under Section 5-310, which shall apply starting July 1, 1990 unless the Member does not make the election described in this Subsection. A Member who makes the election and starts receiving retirement or disability benefits between January 1, 1990 and June 30, 1990 shall start receiving benefits determined under Article 3 effective July 1, 1990.
(d) Supplementary Retirement Program. The benefits provided by the Supplementary Retirement Program created by Ordinance No. 136977, and amended by Ordinance No. 152182, of the City of Portland shall be paid from the Fund pursuant to this Chapter effective July 1, 1990 to:
1. Persons described in Subsection (b); and
2. Members described in Subsection (c) who do not make the election provided therein, and the Surviving Spouses and Dependent Minor Children of such Members.
(e) Repeal of Prior Sections. Except for the continued applicability of Sections 5-113 through 5-123 and 5-126 as provided in Subsections (b) and (c), the provisions of this Chapter as previously in effect are repealed and superseded.
(f) Continuity of Board. Notwithstanding anything expressed or implied in the amendments to this Chapter enacted in 1989, the members of the Board duly elected and serving as such immediately prior to the effective date of such amendments shall continue after the effective date of such amendments to serve as members of the Board for the remainder of the term for which they were elected.
(g). Notwithstanding any other provision of law or this Chapter, Chapter 5 shall be amended and restated as set forth above in Articles 2 and 3 and this Article 4, effective July 1, 2001, and said amendments shall apply to all matters existing or arising on or after July 1, 2001 regardless of the date of injury or the date the matter is presented, and this amendment is intended to be fully retroactive so as to apply to all Members whenever sworn, except that the amendments shall not apply to any matter which has received Board approval on or before the date these amendments are approved by the voters.
(New language in bold, deleted language italicized and in brackets.)