§ 33. Administration.

(a) Board of Trustees.

The general administration and the responsibility for the proper operation of the retirement system and for making effective the provisions of this subtitle, subject to the provisions contained in subsection (l) of this section, are hereby vested in a Board of Trustees which shall be organized immediately after 3 of the trustees provided for in this section have qualified and taken the oath of office.

(b) Members.

The Board consists of 11 Trustees, as follows:

(1) The Comptroller of the City of Baltimore, ex-officio. The Comptroller may designate a representative to attend any meeting of the Board of Trustees in the Comptroller's place. This representative must be a Deputy Comptroller. This representative has the authority to act in the Comptroller's place.

(2) The Police Commissioner, ex officio. The Police Commissioner may designate a representative to attend any meeting of the Board of Trustees in the Commissioner's place.. This representative must be a Deputy Police Commissioner and must be a member of this system. This representative has the authority to act in the Commissioner's place

(3) The Chief of the Fire Department, ex officio. The Chief of the Fire Department may designate a representative to attend any meeting of the Board of Trustees in the Chief's place. This representative must hold a position whose rank and responsibilities include decision-making authority on behalf of the Chief and must be a member of this System. This representative has the authority to act in the Chief's place.

(4) The Director of Finance, ex officio. The Director of Finance may designate a representative to attend any meeting of the Board of Trustees in the Director's place. This representative must be either the Deputy Director of Finance or the Budget Director. This representative has the authority to act in the Director of Finance's place.

(5)(i) 3 residents and registered voters of the City of Baltimore, to be appointed by the Mayor with the consent of the City Council, as provided in City Charter Article IV, § 6, each to serve for a term of 4 years concurrent with the Mayor's term of office. 1 of these 3 Trustees shall be appointed by the Mayor from a list of 3 recommended candidates submitted by the President of the City Council.

(ii) These Trustees shall possess commercial banking, investment banking, accounting, actuarial, auditing, investment management, investment consulting, or financial legal expertise.

(iii) As of his or her appointment and during his or her entire term of office, a Trustee appointed under this paragraph (5) may not be an employee or official of the City.

(6) 2 members of the system, one of whom shall be an employee of the Fire Department, the other an employee of the Police Department, to be elected by the membership of the respective departments to which each belongs under the rules and regulations that, subject to Title 4 {"Administrative Procedure Act – Regulations"} of the City General Provisions Article, the Board of Trustees adopts to govern the election, to serve for a term of 4 years, staggered as provided for the Trustees first elected. For the purposes of this paragraph (6), members of the system who are not employed by the Fire Department or the Police Department are eligible to participate as voters and as candidates in elections of the Board of Trustees. School crossing guards, meter monitors, and police personnel employed at the Baltimore / Washington International Thurgood Marshall Airport shall participate in the Police Department elections. Fire personnel employed at the Baltimore / Washington International Thurgood Marshall Airport shall participate in the Fire Department elections. For other categories of members of the system who are not employees of the Fire Department or the Police Department, the Board of Trustees shall determine in which departmental election they shall participate.

(7) 2 retirees of the system, 1 of whom shall be a Fire Department retiree, and the other a Police Department retiree, to be elected by the retirees of the respective department to which each belonged, these elections to be held concurrently with the election for the employees representative of each respective department, under the rules and regulations that, subject to Title 4 {"Administrative Procedure Act – Regulations"} of the City General Provisions Article, the Board of Trustees adopts to govern the election, to serve for a term of 4 years. For the purposes of this paragraph (7), retirees of the system who are not employed by the Fire Department or the Police Department are eligible to participate as voters and as candidates in elections of the Board of Trustees. Retired school crossing guards, retired meter monitors, and police personnel retired from employment at the Baltimore / Washington International Thurgood Marshall Airport shall participate in the Police Department elections. Fire personnel retired from employment at the Baltimore / Washington International Thurgood Marshall Airport shall participate in the Fire Department elections. For other categories of retirees in the system who were not employees of the Fire Department or the Police Department, the Board of Trustees shall determine in which departmental election they shall participate.

(8) Notwithstanding City Charter Article IV, §8, which ordinarily requires minority party representation, the election or appointment of Trustees under this subsection shall be made without regard to political affiliation, including those Trustees holding their positions ex officio.

(9)(i) The Board of Trustees is an "agency" and a "board" within the meaning of and subject to the standards and requirements of the Baltimore City Public Ethics Law (City Code Article 8). Each Trustee is a "public servant" and an "official" within the meaning of and subject to the standards and requirements of the Baltimore City Public Ethics Law. And each employee of the Board is a "public servant" and an "employee" within the meaning of and subject to the standards and requirements of the Baltimore City Public Ethics Law.

(ii) In addition to the standards and requirements contained in the Baltimore City Public Ethics Law, Trustees and Board employees may not engage in any of the following activities or hold any of the following interests, as these activities or interests are defined in the Baltimore City Public Ethics Law.

1. No Trustee or Board employee may do business with any system, plan, or trust administered by any of the following (collectively, the "City Benefit Plans"):

A. the Board of Trustees of the Employees' Retirement System of the City of Baltimore;

B. the Board of Trustees of the Fire and Police Employees' Retirement System of the City of Baltimore;

C. the Board of Trustees of the Elected Officials' Retirement System of the City of Baltimore;

D. the Board of Trustees of the Retirement Savings Plan of the City of Baltimore; and

E. the Committee of the City of Baltimore Deferred Compensation Plan.

2. No Trustee or Board employee may be employed by or have a financial interest in any person or entity doing business or seeking to do business with any City Benefit Plan.

3. Trustees and Board employees; Gifts.

A. Notwithstanding City Code Article 8 {"Ethics"}, § 6-28(3) {"Gifts: Qualified exemptions; travel, etc., expenses"}, no Trustee or Board employee may accept any gift or any payment, free admission, or expense reimbursement for attendance at a conference, seminar, or similar meeting, or for related food, travel, lodging, or entertainment, if the gift or the payment, free admission, or reimbursement is, directly or indirectly, from:

i. any person or entity engaged in an activity or providing a product or service that the Trustee knows or has reason to know has been marketed to a City Benefit Plan or is of a type that the Trustee reasonably would expect to be marketed to a City Benefit Plan; or

ii. any trade, professional, or other association that has members engaged in an activity or providing a product or service that the Trustee knows or has reason to know has been marketed to a City Benefit Plan or is of a type that the Trustee reasonably would expect to be marketed to a City Benefit Plan.

B. Subparagraph 3.A does not preclude application of the qualified exemptions contained in City Code Article 8, § 6-28(1) {"food or beverages .. consumed ... in ... presence of ... donor"}, § 6-28(2) {"gift ... [of] insignificant value"}, § 6-28(5) {"gift ... [exempted by] Ethics Board"}, or § 6-28(6) {"gift from a spouse, parent, child, or sibling"}, subject to the qualifications of § 6-29 {"Exemption limitations"}.

4. No funds of this System or of any system, plan, or trust administered by the Board of Trustees may be used to pay for the attendance of a Trustee or Board employee at any conference, seminar, or similar meeting, or for related food, travel, lodging, or entertainment, unless that attendance has first been approved by the Board of Estimates in accordance with the Administrative Manual of Baltimore City, AM-240-3 {"Board of Estimates Approval"}.

5. No Trustee or Board employee may engage in any activity that requires registration as a lobbyist with the City Ethics Board.

(iii) The City Ethics Board shall administer and enforce this paragraph (9) in accordance with the administrative and enforcement provisions of the Baltimore City Public Ethics Law.

(c) Vacancies.

If a vacancy occurs in the office of a trustee, the vacancy shall be filled for the unexpired term in the same manner as the office was previously filled.

(d) Compensation.

The trustees shall serve without compensation, but they shall be reimbursed from the Expense Fund for all necessary expenses that they may incur through service on the Board.

(e) Oath of office.

Each trustee shall, within 10 days after his appointment or election, take an oath of office that, so far as it devolves upon him he will diligently and honestly administer the affairs of the said Board, and that he will not knowingly violate or willingly permit to be violated any of the provisions of law applicable to the retirement system. Such oath shall be subscribed to by the member making it and certified by the Mayor before whom it is taken and shall be immediately filed in the office of the Director of Finance.

(f) Procedures.

Each trustee is entitled to 1 vote on the Board. 6 members of the Board constitute a quorum for the transaction of any business, the exercise of any power, or the performance of any duty authorized or imposed by this subtitle.

(g) Regulations.

Subject to the limitations of this subtitle, and subject to Title 4 {"Administrative Procedure Act – Regulations"} of the City General Provisions Article, the Board of Trustees shall, from time to time, establish rules and regulations for the administration of the funds created by this subtitle and for the transaction of its business.

(h) Officers; employees.

The Board of Trustees shall elect from its membership a chairman and shall by a majority vote of all its members appoint a secretary. It shall engage such actuarial and other service 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 at such rates and in such amounts as the Board of Estimates shall approve, and in accordance with appropriations in the annual Ordinance of Estimates.

(i) Actuarial data.

The Board of Trustees shall keep in convenient form all data necessary for actuarial valuation of the various funds of the Retirement System, for certifying the experience of the Retirement System, and for establishing assumptions and actuarial factors, for the Retirement System.

(j) Records of proceedings.

The Board of Trustees shall keep a record of all its proceedings, and that record shall be open to public inspection.

(j-1) Comprehensive annual financial report.

(1) The Board of Trustees shall publish a comprehensive annual financial report that:

(i) comprises financial statements and other supplementary investment and actuarial information of the Retirement System for the fiscal year ending on the preceding June 30; and

(ii) has been prepared in accordance with generally accepted accounting principles for disclosure of pension information established by the Governmental Accounting Standards Board.

(2) The Board of Trustees shall submit this report to:

(i) the Mayor;

(ii) the Board of Estimates;

(iii) the Finance Director;

(iv) the Police Commissioner; and

(v) the Chief of the Fire Department.

(k) Legal advisor.

The City Solicitor of the City of Baltimore shall be the legal advisor of the Board of Trustees.

(l) Panel of hearing examiners.

(1) There is a panel of hearing examiners, composed of persons with a demonstrated knowledge and competence in disability claims evaluation. The hearing examiners shall be appointed on a contract basis by the Board of Estimates, and the number and composition of the panel shall be at the discretion of the Board of Estimates. The Board of Estimates shall determine the fees to be paid the hearing examiners and the conditions of their contracts. This panel of hearing examiners shall be the same panel as provided for in § 9(p) of this article.

(2) If, from time to time, the Board of Estimates decides to increase the number of hearing examiners, it shall notify the Board of Trustees. Within 15 days of that notice, the Board of Trustees may submit a list of recommended candidates. Also, from time to time, the Board of Trustees, working in conjunction with the Board of Trustees of the Employees' Retirement System, shall notify the Board of Estimates whenever a vacancy exists and, together with that notice, may submit a list of recommendations to fill the vacancies. However, in all events, the Board of Estimates has the power to make the final selection of hearing examiners from either a list submitted by the Board of Trustees or independent of the Board of Trustees' recommendations.

(3) The compensation of the panel members, as well as the compensation of all persons engaged by the panel, and all other expenses of the panel, shall be paid at the rates and in the amounts that the Board of Estimates approves, pursuant to the provisions of the City Charter.

(4)(i) Any non-line-of-duty disability or line-of-duty disability claimant must apply to the Board of Trustees.

(ii) The application must include a medical certification of disability and all supporting medical documentation, on a form prescribed by the Board of Trustees, in which the member must state that she or he has suffered a disability and that the disability prevents her or him from further performance of the duties of her or his job classification.

(iii) If the claim is for a line-of-duty disability benefit, the member must also state that the physical incapacity was the result of an injury arising out of and in the course of the actual performance of her or his duty, without willful negligence on her or his part.

(iv) Any member who has joined this system on or after July 1, 1979, and who applies for a line-of-duty disability benefit must also state that the disability resulted from an injury that occurred within 5 years of the date of her or his application.

(v) The member must also execute a consent form that authorizes the Board of Trustees to obtain all medical records relating to off-duty and line-of-duty accidents or illnesses that the member may have suffered at any time in the past.

(5) On receipt of a member's application and supporting medical documentation, the Board of Trustees shall have the member medically examined by a physician selected by the Board of Trustees. The medical examination shall include the tests and additional examinations that the physician finds necessary or appropriate.

(6) On completion of the medical examination and receipt of a written report, including any test results, from the examining physician, the panel of hearing examiners shall schedule a hearing.

(7) A hearing examiner shall conduct hearings on all matters involving non-line-of-duty disability claims, line-of-duty disability claims, 100% line-of-duty disability claims, line-of-duty death benefit claims, and any related matters arising out of these claims. In addition, any reexamination of the existing retirees on or after July 1, 1979, and any related matter, is under the jurisdiction of the panel of hearing examiners.

(8) One hearing examiner from the panel shall hear a particular claim for benefits. The hearing examiner shall conduct the hearing in an informal manner, with sufficient latitude to provide a fair and impartial hearing to all of the parties without requiring strict compliance with the rules of evidence. Testimony at the hearing shall be under oath and recorded. The hearing examiner has the power to subpoena and require the attendance of witnesses and the production of papers and documents to secure information pertinent to the hearing, and to examine them.

(9) Each hearing is in the nature of an adversary proceeding. An attorney from the City Solicitor's office shall represent the Board of Trustees. The member has the right to counsel.

(10)(i) At the hearing, the member has the burden of proving, by a preponderance of the evidence:

(A) the nature and extent of his or her disability; and

(B) that the disability prevents him or her from the further performance of the duties of his or her job classification.

(ii) If the matter involves a line-of-duty disability claim, the member has the burden of proving by a preponderance of the evidence that the disability was the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on the member's part.

(iii) If the matter involves a line-of-duty death claim, the claimant has the burden of proving by a preponderance of the evidence that the death:

(A) arose out of and in the course of the actual performance of duty; and

(B) was not caused by willful negligence on the member's part.

(11) The hearing examiner shall determine the following:

(i) whether the member has suffered an injury or illness of such a nature as to preclude the member from the further performance of the duties of his or her job classification;

(ii) if the claim is for line-of-duty disability benefits:

(A) whether the physical incapacity is the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on the member's part;

(B) whether the disability qualifies under § 34(e) and, for 100% line-of-duty disability benefits, § 34(f-1); and

(C) for a member who joined this system on or after July 1, 1979, whether the disability resulted from an injury that occurred within 5 years before the date of the members' application; and

(iii) if the claim is for line-of-duty death benefits:

(A) whether the death arose out of and in the course of the actual performance of duty;

(B) whether the death was not caused by the willful negligence of the member; and

(C) whether the death qualifies under § 34(i).

(12) The hearing examiner shall issue written findings of fact that set forth the reasons forthe hearing examiner's determination. If either party to the hearing is aggrieved by the hearing examiner's determination, that party may seek judicial review of the determination by the Circuit Court for Baltimore City. The review shall be sought and heard as provided for in the Maryland Rules, with the exception that the review shall be heard on the record only, on a right-of-way basis. The final determination of the hearing examiner is presumptively correct and may not be disturbed on review except when arbitrary, illegal, capricious, or discriminatory. A party to the judicial review may appeal the court's final judgment to the Court of Special Appeals in accordance with the Maryland Rules of Procedure.

(13) Judicial review under this subsection does not stay or hold in abeyance any payment awarded by the hearing examiner. If a court reverses an award of benefits, the court's decision operates to stop payment of any benefits being made to the claimant, pending any further appeal.

(14) If neither party seeks judicial review within 30 days following the mailing of the hearing examiner's written findings of fact, the hearing examiner's determination is final and binding, subject to the panel of hearing examiners' right to reexamination as provided for in § 34(g).

(m) Duties of actuary.

The Board of Trustees shall designate an actuary who shall be the technical adviser of the Board of Trustees on matters regarding the operation of the funds created by the provisions of this subtitle, and shall perform such other duties as are required in connection therewith.

(n) {Repealed by Ord. 15-381.}

(o) Experience study; Adoption of actuarial assumptions and tables.

(1) At least once in each 3-year period, the actuary shall conduct an experience study of the mortality, service, and compensation experience of the members and beneficiaries of the Retirement System to determine the proper valuation of the Retirement System's liability.

(2) Taking into account the result of the experience study, the Board of Trustees shall adopt and certify for the Retirement System:

(i) the actuarial mortality, service, compensation, and other assumptions needed to determine the annual contribution by the City to the Retirement System; and

(ii) the annuity factors needed to determine actuarial equivalents for calculating benefits.

(3) Tables listing the annuity factors certified under this subsection shall be made available to the membership through the Retirement System's website.

(p) Annual valuation.

(1) Based on the assumptions adopted by the Board of Trustees and on the rate of regular interest established under § 30(9) of this article, the actuary shall conduct an annual valuation of the assets and liabilities of the Retirement System, using generally accepted costing methodology.

(2) Taking into account the valuation conducted by the actuary, the Board of Trustees shall adopt a valuation of the assets and liabilities of the Retirement System and, on that basis, shall certify to the Director of Finance, on or before the date mandated by § 36(f) of this article, the amount of the annual contribution from the City of Baltimore to adequately fund the Retirement System.

(q) Indemnification of persons serving in fiduciary capacity.

(1) Authorized.

The City shall indemnify every person who is made, or is threatened to be made, a party to any action, suit, or proceeding, including administrative and investigative proceedings by reason of his service in a fiduciary capacity to the Fire and Police Employees' Retirement System of Baltimore City, in accordance with and subject to the conditions stated in this section.

(2) "Service in a fiduciary capacity" defined.

The term "service in a fiduciary capacity", as used in this section, means the exercise of any authority or control or any policy-making function, including acts of commission or omission, concerning the management or administration of the Fire and Police Employees' Retirement System of Baltimore, or the exercise of any authority or control or any policy-making function, including acts of commission or omission, concerning the management or disposition of the assets of the system. It includes membership on the Board of Trustees of the Fire and Police Employees' Retirement System of Baltimore City, membership on the advisory investment committee, and service as Administrator or Deputy Administrator of the Fire and Police Employees' Retirement System, or as a staff member engaged in policy-making functions in the performance of his duties and responsibilities; and it includes the Director of Finance, the custodian of the assets of the Fire and Police Employees' Retirement System as named in the Baltimore City Charter.

(3) Included expenses.

If, with respect to a civil, administrative, or investigative action, suit, or proceeding, the person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Fire and Police Employees' Retirement System of Baltimore City, and, with respect to a criminal action, had no reasonable cause to believe his conduct was unlawful, then indemnification shall be against those expenses, including reasonable attorney's fees, judgments, fines, and accounts paid in settlement which were actually and reasonably incurred by him in connection with the proceeding.

(4) Effect of termination of any suit or proceeding.

The termination of any suit or proceeding, in any manner, does not, of itself create a presumption that the person did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Fire and Police Employees' Retirement System, and with respect to a criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

(5) Exceptions to indemnification.

Indemnification may not be made:

(i) with respect to any suit, claim, or matter as to which the person was adjudged to be liable for gross negligence or willful misconduct in the performance of his duty to the Fire and Police Employees' Retirement System; or

(ii) for an independent contractor furnishing services to the Fire and Police Employees' Retirement System; or

(iii) with respect to any matter occurring prior to June 1, 1978.

(6) Insurance provided.

The City shall provide insurance for every person eligible for indemnification under this section against any liability asserted against him or incurred by him arising out of his status as a fiduciary. The City may provide self-insurance for this purpose, in whole or in part, under terms and conditions satisfactory to the Board of Estimates. If the City fails to provide adequate insurance coverage, or if the City fails to provide indemnification pursuant to this section a fiduciary shall not be required to pay amounts attributable to the liability described in this section by reason of the failure of the City to provide the indemnification, and the City shall be held liable therefor.

The City may assert the defense of governmental immunity, or any other defense available to the City, in suits or other actions brought against the City.

(7) City Solicitor.

The sole and final determination of eligibility of a person for indemnification with respect to a particular action, suit, or proceeding, and the approval of the reasonableness of all fees, expenses, and settlements, is vested in the City Solicitor.