CO Code § 31-30.5-209 (2021)
2021 Colorado Code|Title 31 - Government - Municipal|Article 30.5 - Fire - Police - Old Hire Pension Plans|Part 2 - Administration|§ 31-30.5-209. Idle Funds

  If the governing body of a municipality, by resolution, finds that no person named in this article is, and no such person can become, eligible for payment of a benefit from the municipality's police officers' old hire pension fund established pursuant to section 31-30.5-201 (2), it may authorize use of the money in the fund to make contributions to the defined benefit system trust fund pursuant to section 31-31-402 (2), to make contributions to a police benefit fund established pursuant to section 31-31-601 (1)(b), or to make contributions under the federal social security laws if the municipality's police officers are covered by the social security laws. To the extent that money in the fund exceeds three times the present yearly employer contribution to any of the preceding benefit funds on behalf of the municipality's current police officers, such excess may be used for any law-enforcement-related purpose. If the municipality does not employ any police officer, the governing body may authorize use of the money in the fund for any law-enforcement-related purpose. In addition, any money in the fund that is attributable to contributions by the municipality and to interest on such contributions may be used for any police-related purpose and, if no such police-related need exists, then for any purpose as decided by the governing body of the municipality. For the purposes of this subsection (1), contracting with the county or county sheriff for law enforcement service shall not be considered employment of a police officer.    If the governing body of a municipality, fire protection district, or county improvement district, by resolution, finds that no person named in this article is, and no such person can become, eligible for payment of a benefit from the employer's firefighters' old hire pension fund, it may authorize use of the money in the fund to make contributions to the defined benefit system trust fund pursuant to section 31-31-402 (2) or to make contributions under the federal social security laws if the employer's firefighters are covered by the social security laws. In addition, any money in the fund that is attributable to contributions by the municipality or district and to interest on such contributions may be used for any fire-related purpose and, if no such fire-related need exists, for any purpose as decided by the governing body of the municipality or district.      At least sixty days before adoption of a resolution permitted by subsection (1) or (2) of this section, the governing body of the municipality or district shall publish one notice in a newspaper having general circulation within the municipality or district and shall provide a copy of such published notice to the board of directors of the state fire and police pension association established pursuant to section 31-31-201 (1). The notice shall state the intent of the governing body to use the money in the fund for the purposes permitted in this section. The notice shall state that persons who believe they are or may be entitled to benefit payments from the fund shall have fifty days from the date of the notice in which to file an objection, in writing, with the governing body regarding its proposed use of the fund. If any such written objection is received, the governing body shall hold a public hearing before adoption of any resolution under this section with prior published notice of the time and place of the hearing as well as written notice of such hearing mailed, by certified mail, to each person filing a written objection.    If, within one year after adoption of a resolution pursuant to this section, any person establishes a claim to a benefit from the fund, the municipality or district shall repay to the fund any money expended from such fund pursuant to this section, and no such additional expenditures shall be made from the fund.           Notwithstanding the provisions of subsections (1) and (2) of this section and subject to the provisions of paragraph (c) of this subsection (4), if no members are active participants in an employer's old hire pension plan established under this article, the governing body of the employer, by resolution, may authorize the use of the excess balance in the plan fund for the purposes permitted in subsections (1) and (2) of this section. If a governing body authorizes the use of the excess balance under this subsection (4), the employer shall maintain the plan fund at a level equal to at least two times the amount necessary to fund the benefit liabilities of any persons continuing to receive benefits from the plan fund. (a) (I)Notwithstanding the provisions of subsections (1) and (2) of this section and subject to the provisions of paragraph (c) of this subsection (4), if no members are active participants in an employer's old hire pension plan established under this article, the governing body of the employer, by resolution, may authorize the use of the excess balance in the plan fund for the purposes permitted in subsections (1) and (2) of this section. If a governing body authorizes the use of the excess balance under this subsection (4), the employer shall maintain the plan fund at a level equal to at least two times the amount necessary to fund the benefit liabilities of any persons continuing to receive benefits from the plan fund.    For purposes of this paragraph (a), “excess balance” means the amount in an old hire plan fund in excess of two times the amount necessary to fund the benefit liabilities of persons continuing to receive benefits from the plan fund, as determined by the plan's actuary. In determining the excess balance in an old hire plan fund, the actuary shall utilize the assumptions approved by the board of directors of the fire and police pension association pursuant to section 31-30.5-306 (2)(b).       Notwithstanding the provisions of subsections (1) and (2) of this section and paragraph (a) of this subsection (4) and subject to the provisions of paragraph (c) of this subsection (4), if no members are active participants in an employer's old hire pension plan established under this article and the plan provides no rank escalation benefit to persons receiving benefits from the plan fund, the board, after disclosure to the affected retirees, is authorized to use the assets in the plan fund for the purpose of purchasing annuities in amounts sufficient to pay any required benefits, including nondiscretionary cost-of-living adjustments required under the plan, to those persons who continue to receive benefits from the plan fund. If the board purchases annuities for such persons, the governing body of the employer, by resolution, may authorize the use of any additional funds that remain in the plan fund after purchasing such annuities for the purposes permitted in subsections (1) and (2) of this section. Annuities may be purchased pursuant to this paragraph (b) only from insurance companies rated at least A+ by the A.M. Best company or rated at least AA by Standard & Poors Corporation. If there is a default on the payment of benefits resulting from an annuity purchased under this paragraph (b), the employer remains liable to make any required benefit payments to persons for whom the annuities were purchased.    Moneys in the plan fund in excess of the amount required to purchase annuities as provided in paragraph (b) of this subsection (4), if any, may be used to purchase additional benefits or may be treated as an excess balance as provided in paragraph (a) of this subsection (4).        History. Source: L. 96: Entire article added with relocations, p. 864, § 1, effective May 23. L. 97: (4) added, p. 21, § 1, effective July 1. L. 2002: (4)(c) amended, p. 173, § 1, effective October 1. L. 2006: (1) and (2) amended, p. 180, § 3, effective March 31. L. 2008: (4)(c) amended, p. 14, § 2, effective August 5. L. 2014: (4) amended,(SB 14-031), ch. 52, p. 235, § 1, effective March 20.    Editor's note:   Provisions of this section were formerly numbered as § 31-30-313 (2)(a) and § 31-30-412 (2)(a) to (2)(c).   ANNOTATION   Annotator's note. Since § 31-30.5-209 is similar to §§ 31-30-313 and 31-30-412 as they existed prior to the 1996 amendment that relocated parts 3 through 10 of article 30, relevant cases construing those sections have been included in the annotations to this section.   The general assembly has neither expressly authorized nor forbidden a refund of individual pension fund contributions on termination of employment. Conrad v. City of Thornton, 191 Colo. 444 , 553 P.2d 822 (1976).   Home-rule city can contract to make such refunds. A home-rule city has authority to contract with its firemen and policemen to refund the employee's individual contributions to the respective pension funds on termination of employment prior to qualification for pension benefits. Conrad v. City of Thornton, 191 Colo. 444 , 553 P.2d 822 (1976).   Permitting the refund of individual pension fund contributions upon termination of employment is simply an extension of the general principle of protecting the welfare of contributors to the fund. Conrad v. City of Thornton, 191 Colo. 444 , 553 P.2d 822 (1976).   And denial of refunds would then be unjust. Where the city has contracted to make refunds of employee's contributions to pension funds on termination of employment, and policemen and firemen have relied upon such representations, to deny the refunds sought would be an unjust and unreasonable result. Conrad v. City of Thornton, 191 Colo. 444 , 553 P.2d 822 (1976).