NORTH CAROLINA GENERAL ASSEMBLY
1979 SESSION

CHAPTER 429
SENATE BILL 505

AN ACT AMENDING CHAPTER 188 OF THE 1977 SESSION LAWS RELATING TO THE POLICEMEN'S PENSION FUND OF THE CITY OF ASHEVILLE.

The General Assembly of North Carolina enacts:

Section 1. Chapter 188 of the 1977 Session Laws is hereby amended as follows:
(a)	Delete all of Section 4(c)(2) and substitute in lieu thereof the following:
"(2)	A qualified voter of the City of Asheville knowledgeable in pension matters who is appointed by the City Council and who shall serve at the pleasure of the Council;"
(b)	Delete the last sentence of Section 4(c)(3) and substitute in lieu thereof the following:
"Vacancies occurring during the terms of office of the Board of Trustees shall be filled from the same category as the vacancy."
(c)	Delete all of Section 5 and substitute in lieu thereof the following:
"Sec. 5. Eligibility for retirement benefits. Any person who is now a member of the Asheville Police Department, as shown by the records of the City of Asheville, and who becomes a member of the Police Department on or after March 17, 1939, subject to the provisions of Section 14 of this act, shall be entitled to a retirement benefit in accordance with the following provisions:
(a)	Normal Retirement. If such member has completed 20 years of service with the said Police Department, he may, upon arriving at the age of 60 years, or if such member has completed 30 years of service and has arrived at the age of 55 years, retire from the Police Department of the City of Asheville and receive benefits of retirement as set out in Section 8 of this act.
(b)	Early Retirement. If such member has completed 20 years of service with said Police Department, he shall be eligible to retire on the first day of any month coinciding with or following attainment of age 55 (hereinafter referred to as his Early Retirement Date) and shall be eligible to receive a deferred retirement benefit commencing upon attainment of age 60. Such benefit shall be equal to the benefit calculated under Section 8 with such calculation being made as of his Early Retirement Date. Such member may elect to receive immediate Early Retirement Benefit commencing on his Early Retirement Date or on the first day of any month between his Early Retirement Date and attainment of age 60. Such benefit shall be equal to the benefit calculated as of his Early Retirement Date with the amount of such benefit being reduced by 1/15th for each year that the commencement of benefit precedes his 60th birthday, with pro rata reduction for full months totalling less than one year.
(c)	Deferred Vested Benefit. Such member who terminates his employment after completing 20 years of service with said Police Department shall be entitled to a deferred benefit commencing when he reaches his 60th birthday. Such benefit shall be equal to the benefit calculated under Section 8 with such calculation being made as of the date of his termination of employment. Such member may, upon attainment of age 55, elect to receive an immediate Early Retirement Benefit under the terms and conditions set forth in subsection (b) of this Section 5."
(d)	Delete all of Section 9 and substitute in lieu thereof the following:
"Sec. 9. Disability and death benefits. (a)  For purposes of this act, references to 'line of duty' shall mean a disability or death which is the natural and proximate result of an accident occurring while in the actual performance of duty as a member of the Asheville Police Department, as defined in this act, at some definite time and place. 'Not in line of duty' shall mean the disability or death occurring as a result of any cause other than 'line of duty'.
(b)	If and in the event any member of the Asheville Police Department qualifying under this act shall become disabled while acting in the line of duty, as defined in this act, and is unable to work as a policeman, he shall receive monthly a sum equal to seventy percent (70%) of his basic monthly salary rate as then paid by the City of Asheville, said seventy percent (70%) of said basic monthly salary rate shall be paid in monthly installments by the Board of Trustees of the Asheville Policemen's Pension and Disability Fund; provided, however, that if under the North Carolina Workmen's Compensation Act he shall receive any payments due to such disability, then the amount of such compensation payments shall be deducted from the amount of his said monthly installment, and there shall be paid from the Policemen's Pension and Disability Fund only such amount as may be required to make up his said monthly installment; provided, further, that if such member of the Asheville Police Department shall be killed in the line of duty, or shall die as a result of a disability in the line of duty, as defined in this act, the surviving spouse shall receive, so long as said surviving spouse remains unmarried, the same monthly installment as the member would have received under this section; provided, further, that if, under the North Carolina Workmen's Compensation Act such surviving spouse elects to take a lump sum settlement of the amount due on account of the death of the member, then such surviving spouse, so long as said surviving spouse remains unmarried, shall receive from the Policemen's Pension and Disability Fund each month a sum equal to the difference between the monthly installment that would have been received under the Workmen's Compensation Act and the amount of the deceased member's monthly installment, and such payments from the Policemen's Pension and Disability Fund shall continue so long as said surviving spouse remains unmarried.
(c)	If any member of the Asheville Police Department, as defined in this act, becomes permanently disabled not in the line of duty and is unable to work as a policeman, he shall receive annually a sum equal to three and one-half percent (3 1/2%) of his total earnings from the beginning of his service with the Asheville Police Department to the time of his disability; provided that no member shall receive credit for more than 20 years service; provided, further, that three years service with the Asheville Police Department is required before any member thereof can take advantage of this section; provided, further, that if he should die while in active service with the Asheville Police Department not in the line of duty or if he should die while receiving benefits for disability retirement not in the line of duty, the surviving spouse shall receive one-half of the pension paid to the member at the time of death so long as said surviving spouse remains unmarried.
(d)	No member of the Asheville Police Department, as defined in this act, who has attained the age of 60 years shall be eligible for disability or death benefits set forth in Section 9 but shall receive benefits under the terms of Section 8, of this act.
(e)	If any member of the Asheville Police Department, as set out in this act, shall die leaving no surviving spouse entitled to benefits in accordance with Section 8 or 9 of this act, the funds deducted from such policeman's monthly salary and paid to the Policemen's Fund shall be paid as follows:
(1)	to the child or children of such policeman in equal shares;
(2)	if there is no surviving child or children, to the designated beneficiary of the policeman, if any;
(3)	if there is no surviving child or children or designated beneficiary, to the executors or administrators of the policeman's estate."
(e)	Delete all of Section 10 and substitute in lieu thereof the following:
"Sec. 10. Disability retirement administration. (a)  For the purposes of this act, 'disability' shall mean a certification by the Board of Examiners, after a medical examination of a member of the Asheville Police Department qualifying under this act, that such a member is mentally or physically totally incapacitated for the further performance of duty as a policeman, that such incapacity is likely to be permanent, and that such member should be retired.
(b)	Once each year during the first five years following retirement of a member for reasons of disability under Section 9 of this act, and once in every three-year period thereafter, the Board of Examiners may, and upon its application shall, require any disability pensioner who has not yet attained the age of 60 years to undergo a medical examination, such examination to be made at a place mutually agreed upon by the physician or physicians designated by the Board of Examiners. Should any disability pensioner who has not yet attained the age of 60 years refuse to have at least one medical examination in any such year by physician or physicians designated by the Board of Examiners, his pension may be discontinued until his withdrawal of such refusal, and should his refusal continue for one year, all his rights in and to his pension may be revoked by the Board of Examiners. Should a physician or physicians report and certify to the Board of Examiners that such disability pensioner is engaged in or is able to engage in work as a policeman or in another law enforcement related occupation paying more than the difference between his disability pension and his final compensation on the date disability began, and should the Board of Examiners concur in such report, then the amount of his pension shall be reduced to an amount which, together with his disability pension and the amount earnable by him, shall equal the amount of his final compensation at the date of disability. Should his earning capacity be later changed, the amount of his pension may be further modified; provided, that the new pension shall not exceed the amount of the pension originally granted or an amount, which when added to the amount earnable by the disability pensioner together with his disability pension, equals the amount of his final compensation at the date of disability. A disability pensioner restored to active service at a salary less than his final compensation at the date of disability shall not again become a member of this plan.
(c)	Should a disability pensioner under the age of 60 years be restored to active service at a compensation not less than his final compensation at date of disability, his disability retirement shall cease, and he shall again become a member of this plan, and he shall contribute thereafter at the contribution rate which is applicable during his subsequent membership service. Any prior service on the basis of which his service was computed at the time of his disability shall be restored to full force and effect, and in addition, upon his subsequent retirement, he shall be credited with all his service as a member."
(f)	Delete all of Section 11.
(g)	Delete all of Section 12 and substitute in lieu thereof the following:
"Sec. 12. Board of Examiners; established; composition; terms of office; handling of claims; general provisions. (a)  There is hereby created a Board of Examiners to determine claims coming under this act.
(b)	Said Board shall consist of five members who shall be appointed or elected as follows:
(1)	the Mayor of the City of Asheville shall be the chairman;
(2)	the City Manager of the City of Asheville shall be a member of said Board;
(3)	the Council of the City of Asheville shall appoint for a term of three years beginning on the date of ratification of this act and every three years thereafter a medical doctor to be the third member of said Board;
(4)	the Police Department of the City of Asheville shall elect for a term of three years beginning on the date of ratification of this act and every three years thereafter a person who is a member of said Police Department, who shall not be the Police Chief, to be the fourth member of said Board;
(5)	the Council of the City of Asheville shall appoint for a term of three years beginning on the date of ratification of this act and every three years thereafter, a qualified voter of the City of Asheville knowledgeable in pension matters to be the fifth member of said Board.
In the event of a vacancy on said Board, such vacancy shall be filled from the same category as the vacancy.
(c)	The Board of Trustees shall review the findings of the Board of Examiners and may approve or reverse the findings of the Board of Examiners.
(d)	Any policeman claimant, his beneficiary or representative whose claim has been denied in whole or in part after review by the Board of Trustees shall have the right to appeal to the Asheville City Council. Such appeal must be filed by the policeman claimant, his beneficiary or representative in writing with the City Clerk within 10 days after receipt of written denial of all or part of the claim by the Board of Trustees. Such appeal will be heard at a regular City Council meeting within six weeks of the filing of the appeal by said policeman claimant, his beneficiary or representative. The decision of the City Council shall be final.
If the Board of Trustees reverses, in whole or in part, the findings of the Board of Examiners, the Board of Examiners shall have the right to appeal to the Asheville City Council. Such appeal must be filed by the Board of Examiners in writing with the City Clerk within 10 days after written notice of the reversal by the Board of Trustees. Such appeal will be heard at a regular City Council meeting within six weeks of the filing of the appeal by the Board of Examiners. The decision of the City Council shall be final."
Sec. 2. All laws and clauses of laws in conflict with the provisions of this act are hereby repealed to the extent of such conflict.
Sec. 3. This act is effective upon ratification.
In the General Assembly read three times and ratified, this the 20th day of April, 1979.