ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 201
(Senator Foster, original sponsor)
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[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT to amend and reenact §5-10A-2, §5-10A-3, §5-10A-4, §5-10A-5,
§5-10A-6, §5-10A-7 and §5-10A-8 of the Code of West Virginia,
1931, as amended, all relating to disqualification for public
retirement benefits; adding the definition of "former
participant"; providing for termination of retirement benefits
in all public retirement plans of former and present
participants who have rendered less than honorable service;
and providing for retention of vested employer contributions
for members of the Teachers' Defined Contribution Retirement
System whose benefits are terminated for less than honorable
service.
Be it enacted by the Legislature of West Virginia:
That §5-10A-2, §5-10A-3, §5-10A-4, §5-10A-5, §5-10A-6, §5-10A-7 and §5-10A-8 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
As used in this article:
(a) "Retirement plan" or "plan" means the Public Employees
Retirement Act pursuant to article ten of this chapter; each
municipal employees retirement plan pursuant to article twenty-two,
chapter eight of this code; each policemen's and firemen's pension
and relief fund pursuant to article twenty-two, chapter eight of
this code; the West Virginia State Police Death, Disability and
Retirement Fund pursuant to article two, chapter fifteen of this
code; the West Virginia State Police Retirement System pursuant to
article two-a, chapter fifteen of this code; the State Teachers
Retirement System pursuant to article seven-a, chapter eighteen of
this code; the Teachers' Defined Contribution Retirement System
pursuant to article seven-b, chapter eighteen of this code; the
Deputy Sheriff Retirement System pursuant to article fourteen-d,
chapter seven of this code; the higher education retirement plan
and supplemental retirement plans pursuant to section four-a,
article twenty-three, chapter eighteen of this code; the Judges'
Retirement System pursuant to article nine, chapter fifty-one of
this code; the West Virginia Emergency Medical Services Retirement
System pursuant to article five-v, chapter sixteen of this code; and any other plan established pursuant to this code for the
payment of pension, annuity, disability or other benefits to any
person by reason of his or her service as an officer or employee of
this state or of any political subdivision, agency or
instrumentality thereof, whenever the plan is supported, in whole
or in part, by public funds.
(b) "Beneficiary" means any person eligible for or receiving
benefits on account of the service for a public employer by a
participant or former participant in a retirement plan.
(c) "Benefits" means pension, annuity, disability or any other
benefits granted pursuant to a retirement plan.
(d) "Conviction" means a conviction on or after the effective
date of this article in any federal or state court of record
whether following a plea of guilty, not guilty or nolo contendere
and whether or not the person convicted was serving as an officer
or employee of a public employer at the time of the conviction.
(e) "Former participant" means any person who is no longer
eligible to receive any benefit under a retirement plan because
full distribution has occurred.
(f)"Less than honorable service" means:
(1) Impeachment and conviction of a participant or former
participant under the provisions of section nine, article four of
the Constitution of West Virginia, except for a misdemeanor;
(2) Conviction of a participant or former participant of a felony for conduct related to his or her office or employment which
he or she committed while holding the office or during the
employment; or
(3) Conduct of a participant or former participant which
constitutes all of the elements of a crime described in either
subdivision (1) or (2) of this subsection but for which the
participant or former participant was not convicted because:
(i) Having been indicted or having been charged in an
information for the crime, he or she made a plea bargaining
agreement pursuant to which he or she pleaded guilty to or nolo
contendere to a lesser crime:
Provided, That the lesser crime is a
felony containing all the elements described in subdivision (1) or
(2) of this subsection; or
(ii) Having been indicted or having been charged in an
information for the crime, he or she was granted immunity from
prosecution for the crime.
(g) "Participant" means any person eligible for or receiving
any benefit under a retirement plan on account of his or her
service as an officer or employee for a public employer.
(h) "Public employer" means the State of West Virginia and any
political subdivision, agency, or instrumentality thereof for which
there is established a retirement plan.
(i) "Supervisory board" or "board" means the Consolidated
Public Retirement Board; the board of trustees of any municipal retirement fund; the board of trustees of any policemen's or
firemen's retirement plan; the governing board of any supplemental
retirement plan instituted pursuant to authority granted by section
four-a, article twenty-three, chapter eighteen of this code; and
any other board, commission or public body having the duty to
supervise and operate any retirement plan.
§5-10A-3. Notice of intention to terminate benefits; waiver;
failure to reply.
(a) Whenever a supervisory board, upon receipt of a verified
complaint or otherwise, has reasonable cause to believe that a
participant or former participant rendered less than honorable
service as defined in section two of this article, it shall notify
the affected participant, former participant or beneficiary that it
believes that the participant or former participant rendered less
than honorable service and that the participant, former participant
or beneficiary is thereby ineligible to receive benefits. A
supervisory board may not issue a notice:
(1) If more than two years have elapsed since the judgment of
conviction upon which the notice is based became final; or
(2) In cases described in subdivision (3), subsection (f),
section two of this article, if more than two years have elapsed
since, as the case may be: The plea bargaining agreement or the
grant of immunity; or
(3) With respect to conduct which occurred prior to the effective date of this article.
(b) The notice shall contain a concise statement of the
reasons why the board believes that the participant or former
participant rendered less than honorable service and shall be made
either by personal service or by certified mail, return receipt
requested, to the address which the participant, former participant
or beneficiary maintains for purposes of corresponding with the
board. If notice is made by certified mail, service shall be
considered complete upon mailing and a completed receipt
constitutes proof of the receipt of the notice. The notice shall
inform the participant, former participant or beneficiary that he
or she has the right to demand that the board seek a determination
in circuit court of his or her eligibility for benefits and
membership in the retirement plan by notifying the board of the
demand within forty days. The notice shall also inform the
participant, former participant or beneficiary that the board will
terminate the benefits in accordance with section four of this
article and refund the participant's or former participant's
contributions with interest, less benefits previously paid as
provided in section six of this article if the participant, former
participant or beneficiary either waives the right to demand that
the board take the matter before the circuit court or fails to
respond to the board's notice within forty days after service.
§5-10A-4. Determination by circuit court of ineligibility; jurisdiction; appeal.
(a) If a participant, former participant or beneficiary
informs the supervisory board within forty days after service of
the notice as provided in section three of this article that he or
she demands that the board seek a determination in circuit court,
the board shall immediately file a petition in the circuit court in
the county in which the board is located or in which the
participant, former participant or beneficiary resides seeking that
the court determine that the participant or former participant
rendered less than honorable service as defined in section two of
this article and that the affected participant, former participant
or beneficiary is thereby ineligible to receive benefits. The
circuit courts have jurisdiction to make the determinations.
(b) Upon the filing of a petition by a supervisory board, the
circuit court shall give to the affected parties notice and an
opportunity to be heard consistent with the demands of due process
and necessary for a fair determination of the matter. Upon
completion of its hearings the court shall make such findings of
fact and conclusions of law as are appropriate. Except in the case
of exigent circumstances, the court shall make its determination
within sixty days of the filing of the petition by the board.
(c) A determination of the circuit court shall be a final
order which may be appealed to the Supreme Court of Appeals in the
same manner as decisions in other civil actions.
§5-10A-5. Termination of benefits.
(a) The board shall terminate a participant's, former
participant's or beneficiary's membership in any and all plans in
which he or she is or has been a member and shall not thereafter
pay any benefits to the participant, former participant or his or
her beneficiaries if an affected participant, former participant or
beneficiary either waives the right to demand that the board seek
a determination of eligibility in circuit court as set forth in
section three of this article or fails to respond to the notice
within forty days after service thereof as set forth in said
section or if a circuit court has determined that the participant
or former participant rendered less than honorable service in
accordance with section four of this article:
Provided, That this
article does not authorize the termination of benefits received by
a beneficiary that are received as a result of the beneficiary's
own membership in a plan or the beneficiary's status as a
beneficiary of a member other than the participant or former
participant.
(b) If the participant or former participant is deceased and
there are two or more beneficiaries at least one of whom has given
the board timely notice that he or she wishes to exercise the right
to demand that the board seek a determination of eligibility in
circuit court, the board shall take the action as provided in this
section with respect to all the beneficiaries only upon a determination by the court that the participant or former
participant has rendered less than honorable service.
§5-10A-6. Refund of contributions.
The supervisory board shall refund to a participant or
beneficiary terminated from benefits by section five of this
article the contributions of the participant in the same manner and
with the same interest as provided to those participants or
beneficiaries otherwise eligible to withdraw the participant's
contributions under the retirement plan, less the amount of any
benefits which the participant or his or her beneficiaries have
previously received: Provided, That a member of the Teachers'
Defined Contribution Retirement System whose benefits have been
terminated pursuant to section five of this article shall be
refunded only his or her employee contributions and the earnings on
those contributions. Any vested employer contributions shall
remain in the Teachers' Defined Contribution Retirement System and
be used to offset future employer contributions for each
contributing employer.
§5-10A-7. Eligibility for new participation upon rehabilitation.
Nothing in this article prohibits a participant or former
participant made ineligible for benefits by virtue of conviction of
a crime under this article and who has paid the full penalty
imposed by law for the crime from accepting a position as an
officer or employee of the same or different public employer and joining a retirement plan as a new member; but the new member and
his or her beneficiaries shall remain forever ineligible for any
benefits arising from the new member's former participation in a
retirement plan.
§5-10A-8. Setoff; unpaid benefits subject to execution, freezing
of account upon finding of probable cause.
(a) The State of West Virginia or any of its political
subdivisions shall have the right of setoff against any unpaid
benefits which have accrued or may thereafter accrue under the
plan, including any contributions by the participant or former
participant for any claim caused by less than honorable service by
the participant or former participant.
(b) Notwithstanding any provision of this article to the
contrary, upon being notified by an agency of the State of West
Virginia or any of its political subdivisions that an employee has
been charged by criminal complaint, indictment or information with
an offense which constitutes less than honorable service and
larceny of funds or property from a state agency or political
subdivision, the retirement board shall withhold payment or
refunding of any participant's or former participant's
contributions until it receives an order from a court of competent
jurisdiction reflecting that the charge has been dismissed,
reflecting that the participant or former participant is found not
guilty, ordering the release of all or part of the funds or directing restitution to the state or political subdivision.
(c) Notwithstanding any provision of the law to the contrary,
any unpaid benefits which have accrued or may thereafter accrue are
subject to execution, garnishment, attachment or any other legal
process for collection of a judgment for the recovery of loss or
damages incurred by the state or its political subdivision caused
by the participant's or former participant's less than honorable
service.