§ 24-51-1703 — Denver public schools division - consolidation

(1) The DPS
plan shall continue to govern the benefits and programs specified in such plan
through December 31, 2009. On January 1, 2010, the DPS plan shall be superseded
by the provisions of this article except to the extent that it is necessary to refer to
the DPS plan for the correction of errors and as it may be incorporated by reference
in this article.

(2) On January 1, 2010, all the assets, liabilities, and obligations of the Denver
public schools retirement system shall become the assets, liabilities, and
obligations of the Denver public schools division of the association without any
further act or document of transfer.

(3) On January 1, 2010, notwithstanding the provisions of subsection (2) of
this section, the Denver public schools retirement system or the association, or
both, may take such actions and execute such certifications or other instruments as
may be convenient to evidence the consummation of the merger of the two
systems, its effective date, and the assets or any particular asset transferred. Any
such certification or other instrument purportedly executed by an authorized
officer of either system and bearing the seal of such system shall be prima facie
evidence of all matters stated in the certification or instrument and may be relied
upon by any third party, without further inquiry, including, without limitation, any
public trustee or other public official of this or any other state or local government.
If any certification or other instrument is recorded in the appropriate real estate
records in this or any other state or local government, a copy of the certification or
instrument, when duly certified by the custodian of the real estate records to be a
true copy of the recorded original, shall have the same effect as the original.

(4) The value of assets transferred as of January 1, 2010, as reflected in the
audited financial report effective December 31, 2009, shall determine the initial
asset value in the Denver public schools division trust fund for purposes of the
initial and future valuations and the proportionate share of the total assets of the
association attributable to the Denver public schools division. In the event that the
audited value is adjudicated by a court of competent jurisdiction to be in error such
that the true value on the date of transfer was different than reflected in the
audited financials, an adjustment shall be made to the initial asset value of the
Denver public schools division and appropriate adjustments made to the
proportionate share of investment returns and expenses of the association
attributed to the Denver public schools division. No adjustment to the starting asset
value of the Denver public schools division shall result from a change in value after
January 1, 2010, of the assets transferred. For purposes of this subsection (4), the
Denver public schools retirement system real estate and private equity holdings
shall be valued and audited as of December 31, 2009, and the directly owned real
estate of the association shall be appraised for evaluation as of December 31, 2009.

(5) (a) Prior legislative attempts to accomplish the merger of the Denver
public schools retirement system into the school division of the Colorado public
employees' retirement association with agreement among the three parties have
proven unsuccessful notwithstanding substantial expenditures of time and money
by the parties. The reasons for such lack of success include the methodology
involved in the determination and allocation of the costs of a merger in order to
avoid any subsidy to either merging party as a result of the merger. To avoid these
problems and to obtain the public policy benefits of a merger, this section
mandates the merger without any requirement of agreement among the parties and
implements it through the creation of a separate division within the association.
Notwithstanding such mandate, the successful integration of the Denver public
schools retirement system into the association while maintaining a continuing high
level of service to the members and beneficiaries of both systems has required and
will continue to require the cooperation and best efforts of the governing bodies
and staffs of the Denver public schools retirement system, the association, and the
Denver public schools. In the course of the merger, the parties shall observe the
fiduciary duties and legal obligations incident to their respective offices, positions,
and employments, which duties and obligations may not always be entirely clear or
easily accomplished. Therefore, to secure the public policy objectives incident to
the merger and its successful implementation in the most efficient way feasible, so
long as such governing bodies and staffs act or have acted in good faith and in
accordance with a good faith interpretation of the requirements of this section and
other applicable law, they shall be deemed to have fulfilled their fiduciary duties
and other legal obligations. In addition, such governing bodies and staffs shall have
no personal liability for their acts or omissions incident to the implementation of the
merger, including all activities reasonably related thereto. Any person who
contends otherwise shall bear the burden of proving that any act or omission
challenged does not meet the requirements of good faith.

(b) It is the intent of this part 17 to achieve the mandated merger and to
facilitate its implementation, thereby providing portability of the benefits of the
members of the Denver public schools retirement system and the association. In
addition, this part 17 is intended to pursue efficiencies in the administration of the
benefits of members and beneficiaries of the Denver public schools retirement
system and in the investment of moneys being transferred to the association and
later accruing to it through employer and employee contributions, all in accord with
changing conditions. The provisions of this part 17 and the benefit provisions for
members and beneficiaries to be provided following the merger shall be interpreted
and administered to attempt to further those objectives, and if pursued reasonably
and in good faith shall be deemed to comply with applicable legal and fiduciary
requirements. Any person who contends otherwise shall bear the burden of proving
that any act or omission challenged does not meet all legal requirements
applicable in the circumstances.

(c) On January 1, 2010, the separate existence of the Denver public schools
retirement system shall cease, and the terms of its trustees shall expire. In addition,
the employment of its employees shall cease, subject to section 24-51-1748,
providing for their employment by the association. Any claims against such
trustees, former trustees, employees, or former employees in their respective
capacities shall be commenced within such periods of limitation and shall be
subject to such other provisions as may be provided by law, but in no case shall
such an action be brought more than two years after January 1, 2010. Any claims
relating to the merger and made against the trustees, former trustees, employees,
or former employees of the association in their respective capacities, and any
claims relating to the merger and made against members or former members of the
board of education or employees or former employees of the school district in their
respective capacities shall be commenced within such periods of limitation and
shall be subject to such other provisions as may be provided by law, but in no case
shall such an action be brought more than two years after January 1, 2010.

Legislative History

Source: L. 2009: Entire part added, (SB 09-282), ch. 288, p. 1359, � 56, effective May 21.