§ 5. Administration; Board of Trustees.

(a) Responsibility vested in Board.

(1) 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 § 5, § 6, and § 9 of this subtitle, are 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.

(2)(i) At the written request of the Finance Director and on a majority vote of the Board's members, the Board may serve in a fiduciary capacity for other City trust funds.

(ii) The Board may not unreasonably withhold the approval required by subparagraph (i) of this paragraph.

(iii) For each City trust fund that the Board serves under this paragraph (2), a Memorandum of Understanding between the Board and the Director of Finance must be executed and approved by the Board of Estimates.

(b) Members.

The Board shall consist of 9 trustees as follows:

(1) The City Comptroller.

(1a) the Director of Finance.

(2)(i) 2 members of this System to be elected by the membership of this System under 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. These members shall serve for terms of 4 years each, staggered as provided for the trustees first elected under this paragraph (2).

(ii) A member elected to serve as trustee under this paragraph (2), who retires during his or her term of office after having served more than 2 years in office and who begins receiving a retirement benefit, will continue to serve for the balance of his or her term of office.

(3)(i) 2 residents of the City of Baltimore, to be appointed by the Mayor, subject to confirmation by the City Council, as provided in City Charter Article IV, § 6, each to serve for terms of 4 years concurrent with the Mayor's term of office.

(ii) 1 of these trustees shall possess commercial banking experience or similar financial experience.

(iii) As of his or her appointment and during his or her entire term of office, a trustee appointed under this paragraph (3) may not be an employee.

(3a)(i) 2 residents of the City of Baltimore or a surrounding county, to be appointed by the Mayor, subject to confirmation by the City Council, as provided for in City Charter Article IV, § 6, from recommendations made by the President of the City Council, to serve for a term of 4 years concurrent with the Mayor's term of office.

(ii) As of his or her appointment and during his or her entire term of office, a trustee appointed under this paragraph (3a) may not be an employee.

(iii) A trustee appointed under this paragraph (3a) shall possess at least 5 years of institutional investment, insurance, taxation, accounting, or finance experience.

(4) 1 retiree of this System to be elected by the retirees under 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. This member shall serve for a term of 4 years, staggered as provided for the trustee first elected under this paragraph (4).

(4a) 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.

(5)(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 (5) 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 for all necessary expenses that they may incur through service on the Board.

(e) Oath of office.

Before assuming office, each trustee shall, within 30 days after his or her appointment or election, take an oath of office that, so far as it devolves on him or her, the trustee will diligently and honestly administer the affairs of the Board, and that he or she will not knowingly violate or willingly permit to be violated any of the provisions of law applicable to the Retirement System. This 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) Voting.

Each trustee shall be entitled to 1 vote in the Board; 3 votes shall be necessary for a decision by the trustees at any meeting of said Board.

(g) Rules and 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. Furthermore, the Board of Trustees shall adopt and administer uniform rules and regulations applicable to all members and shall not discriminate in favor of or against any members so that all members in like circumstances shall be treated the same.

(h) Officers; Third-party services.

(1) Officers.

(i) The Board of Trustees shall elect a Chair and a Vice-Chair from among its members.

(ii) The System's Executive Director serves as the Secretary to the Board.

(2) Retention of third-party services.

(i) As the Board of Trustees deems necessary from time to time, the Board shall engage actuarial and other third-party services as required to transact the business of the System.

(ii) The retention of these services is subject to the approval of the Board of Estimates as required by the City Charter and, subject to Title 4 {"Administrative Procedure Act – Regulations"} of the City General Provisions Article, by the rules and regulations of the Board of Estimates.

(i) Records.

The Board of Trustees shall keep in convenient form such data as shall be necessary for actuarial valuation of the various funds of the Retirement System and for checking the experience of the system.

(j) Proceedings.

The Board of Trustees shall keep a record of all of its proceedings which shall be open to public inspection. It shall publish annually on or before November 1 a report showing the fiscal transactions of the Retirement System for the year ending on the preceding June 30, the amount of the accumulated cash and securities of the system, and the last balance sheet showing the financial condition of the system by means of an actuarial valuation of the assets and liabilities of the Retirement System. The Board shall submit said report to the Mayor and shall furnish copies thereof to the heads of the various departments for their use and the use of the members employed therein.

(k) Legal advisor.

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

(k-1) Auditor.

The Board of Estimates of the City of Baltimore from time to time shall select an independent auditor for the Employees' Retirement System; the auditor shall report his findings annually to the Board of Estimates and to the Board of Trustees and said audit reports shall be public record.

(l) {Vacant}

(m) Duties of actuary.

The Board of Trustees, with the approval of the Board of Estimates, shall designate a qualified 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) Tables and rates.

Immediately after the establishment of the Retirement System, the actuary shall make an investigation of the mortality, service and compensation experience of the members of the system, and on the basis of such investigation, he shall recommend for adoption by the Board of Trustees such tables and such rates as are required in subsection (o). The Board of Trustees shall adopt tables and certify rates, and as soon as practicable thereafter, the actuary shall make a valuation based on such tables, and rates, of the assets and liabilities of the funds created by this subtitle.

(o) Experience study.

(1) Actuary to conduct and report to Board.

At least once in each 4-year period, the actuary shall conduct and present to the Board of Trustees an experience study of the mortality, service, and compensation experience of the members and beneficiaries of this System.

(2) Board to certify actuarial assumptions.

Taking into account the results of the experience study, the Board of Trustees shall adopt and certify for the System the mortality, service, compensation, and other actuarial assumptions it deems necessary for the actuary to determine the annual contribution by the City to this System.

(p) Annual valuation.

On the basis of such tables or rates as the Board of Trustees shall adopt, the actuary shall make an annual valuation of the assets and liabilities of the funds of the system together with adjustments for actual experience as may be necessary.

(q) Subpoena power.

The Board of Trustees and the panel of hearing examiners may, in the enforcement of this subtitle, issue subpoenas, compel the attendance and testimony of witnesses and the production of books, papers, records, and documents relating to payroll records, and necessary for hearings, investigations, and proceedings. Any such subpoena shall be served by the Sheriff of Baltimore City or any of his deputies. In case of disobedience to a subpoena, the Board of Trustees may apply to a court of appropriate jurisdiction for an order requiring the attendance and testimony of witnesses and the production of books, papers, records, and documents. Said court, in case of contumacy or refusal to obey any such subpoena, after notice to the person subpoenaed, and upon finding that the attendance or testimony of such witnesses or the production of such books, papers, records, and documents as the case may be, is relevant or necessary for such hearings, investigations, or proceeding of the Board of Trustees and the panel of hearing examiners, may issue an order requiring the attendance, and testimony of such witnesses and the production of such books, papers, records and documents, or any of them, and any failure to obey such order of the court may be punished by the court as contempt thereof.

(r) 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 reasons of his or her service in a fiduciary capacity to the Employees' Retirement System of Baltimore City, in accordance with and subject to the conditions of this section.

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

(i) In this section,"service in a fiduciary capacity" means:

(A) the exercise of any authority, control, or policy-making function, including acts of commission or omission, concerning the management or administration of the Employees' Retirement System of Baltimore City,

(B) the exercise of any authority, control, or policy-making function, including acts of commission or omission, concerning the management or disposition of the assets of the System, or

(C) the exercise of any authority, control, or policy-making function, including acts of commission or omission, concerning the management or administration of any other City trust fund for which the Board serves as a fiduciary under subsection (a)(2) of this section.

(ii) The term includes:

(A) membership on the Board of Trustees of the Employees' Retirement System of Baltimore City,

(B) membership on the advisory investment committee,

(C) service as Administrator or Deputy Administrator of the Employees' Retirement System,

(D) service as a staff member engaged in policy-making functions in the performance of her or his duties and responsibilities, and

(E) service as the Director of Finance, the custodian of the assets of the Employees' Retirement System of Baltimore City 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 or she reasonably believed to be in or not opposed to the best interest of the Employees' Retirement System of Baltimore City or of any City trust fund for which the person serves as a fiduciary under subsection (a)(2) of this section, and, with respect to a criminal action, had no reasonable cause to believe his or her conduct was unlawful, then indemnification shall be against those expenses, including reasonable attorneys' fees, judgments, fines, and accounts paid in settlement that were actually and reasonably incurred by the person 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 or she reasonably believed to be in or not opposed to the best interest of the Employees' Retirement System or of any City trust fund for which the person serves as a fiduciary under subsection (a)(2) of this section, and with respect to a criminal action or proceeding, had reasonable cause to believe that his or her 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 or her duty to the Employees' Retirement System or to any City trust fund for which the person serves as a fiduciary under subsection (a)(2) of this section;

(ii) for an independent contractor furnishing services to the 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 her or him or incurred by her or him arising out of the person's status as 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 under this section, a fiduciary is not 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 is liable for those amounts.

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

(s) Actuarial funding method.

Effective retroactively with the year beginning July 1, 1988, and through the year ending June 30, 2013, the Retirement System shall be funded by using the projected unit credit cost method. Effective retroactively with the year beginning July 1, 2013, the Retirement System shall be funded by using the entry age normal cost method.