SB 437 Text

COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 437
(By Senators McCabe, Foster, Green, Wells, Edgell, D. Facemire, Plymale, Tomblin (Mr. President), Browning, Jenkins, Unger, White, Chafin and Prezioso)
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[Originating in the Committee on Pensions;
reported February 4, 2010.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11 and §5-10E-12; and to amend and reenact §36-8-13 of said code, all relating to establishing the West Virginia Voluntary Employee Retirement Accounts Program in the office of the State Treasurer; establishing findings; defining terms; creating program as a body corporate; providing for liberal construction; requiring compliance with federal and state law; providing for plan administration; authorizing the Treasurer to propose rules; establishing participation; requiring all federal approvals be received before operations begin; creating trust; prohibiting assignment, except for qualified domestic relations orders; authorizing investments; specifying that the corpus, assets and earnings of trust do not constitute public funds; deferring compensation from federal, state and municipal income taxes; authorizing collection of fees from accounts; creating administration account; requiring that any funds appropriated by the Legislature be reimbursed; specifying the state and the Treasurer are not liable or responsible for any debt or obligation of the program and that no debt or obligation of the state is or will be created; specifying the state and the Treasurer are not liable for losses; specifying certain information is confidential; requiring payroll information be provided to the Treasurer; and providing for the transfer of money from the Unclaimed Property Trust Fund for start-up of the program.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11 and §5-10E-12; and that §36-8-13 of said code be amended and reenacted, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 10E. WEST VIRGINIA VOLUNTARY EMPLOYEE RETIREMENT ACCOUNTS PROGRAM.
§5-10E-1. Findings.
(a) The Legislature finds that many workers in West Virginia do not have access to an employment-based retirement plan with federal income tax incentives. Workers who are unable to build up pensions and savings risk living on low incomes in their later years and are more likely to become dependent on governmental services. On average, a West Virginia worker in a company with one hundred or fewer employees makes twenty-six percent less than a worker in a company with more than one hundred employees. In addition, small employers find offering pension plans to their employees cost prohibitive and time consuming.
(b) The Legislature has determined that offering a group plan, the West Virginia Voluntary Employee Retirement Account Program, to West Virginia employers and employees should provide a simple, cost-efficient way for West Virginia workers to save for retirement and for West Virginia employers to offer a much-needed employee benefit.
§5-10E-2. Definitions.
Unless the context in which used clearly requires a different definition, the following definitions in this section apply throughout this article:
(1) "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended from time to time.
(2) "Investment product" means any fixed or variable rate annuity, savings account, certificate of deposit, money market account, bond, mutual fund or any other form of investment not prohibited under the Internal Revenue Code and authorized by the program.
(3) "Nonparticipating employer" means a nongovernmental employer in West Virginia who employs no more than one hundred employees in the state, who does not offer a retirement plan for employees but who may make payroll deductions in accordance with the program.
(4) "Participating employee" or "member" means any person employed in this state by a nongovernmental employer who employs no more than one hundred employees in the state, who has a part of his or her wages or salary contributed to an account in the program and who has at least $1 in an account in the program.
(5) "Participating employer" means any nongovernmental employer who employs no more than one hundred employees in this state and who does not offer a retirement plan for employees at the time the employer executes an agreement with the Treasurer authorizing employees to take part in the program.
(6) "Plan" means the retirement plan created and operated under this article.
(7) "Program" means the voluntary employee retirement accounts program created under this article.
(8) "Treasurer" means the West Virginia State Treasurer.
§5-10E-3. West Virginia Voluntary Employee Retirement Accounts program created; body corporate.
(a) The West Virginia Voluntary Employee Retirement Accounts Program is created within the office of the West Virginia State Treasurer under the direction of the Treasurer to provide a cost-efficient group retirement program for nongovernmental employers and employees in West Virginia.
(b) The Voluntary Employee Retirement Accounts Program shall constitute a body corporate.
(c) The program shall not offer an Internal Revenue Code section 401(k) plan.
§5-10E-4. Liberal construction; compliance.
(a) The provisions of this article shall be liberally construed so as to provide a tax-deferred retirement program for participating employers and participating employees.
(b) The plan is intended to comply with the requirements of the Internal Revenue Code and state law to provide a group retirement program, including without limitation provisions for limits on deferred contributions.
§5-10E-5. Administration; powers; rules.
(a) The Treasurer shall create the plan and trust, develop standards and requirements for operation, and shall have all powers necessary to effectuate the purposes of this article and to operate the program.
(b) Notwithstanding any provision of this code to the contrary, including, without limitation, this chapter and chapter five-a of this code, the Treasurer has authority to enter into contracts and execute and deliver instruments, including, without limitation, contracts with participating employers and employees; engage consultants, auditors, counsel, managers, advisors, trustees or any other contractors or professionals; apply for and receive grants and other funds available for the program; and charge and collect administrative fees.
(c) The Treasurer may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as necessary to implement the provisions of this article, and is authorized to promulgate emergency rules.
§5-10E-6. Participation.
(a) Nongovernmental employers that employ no more than one hundred employees in this state and that do not offer a currently active retirement program for employees may voluntarily elect to participate in the program and provide their employees with the opportunity to become participating employees. However, nothing in this article shall be construed as requiring employers to participate in the program, except as provided in subsection (b) of this section. A participating employer shall comply with all program requirements, including, without limitation, making payroll deductions and remittances as required by the Treasurer. A participating employer may elect to discontinue participation in accordance with program requirements.
(b) An employee of a nonparticipating employer in West Virginia may elect to participate and defer a portion of his or her salary to an account under the program in his or her name, and the only requirement of his or her employer is to make payroll deductions and remittances as requested by the employee in writing and as determined by the Treasurer.
(c) An employer, in its sole discretion, may elect to make a matching contribution to the account of an employee on whatever basis it elects in accordance with the program requirements.
(d) A participating employee may increase or decrease the amount of his or her contribution at any time within the limitations permitted by the program, and an employee may, if the employer permits, cease to participate in the program upon written notice to the employer.
(e) The program may not begin receiving employee contributions until any approvals from federal agencies that may be required have been received, and appropriate funds for start-up costs of the program have been identified.
§5-10E-7. Creation of trust; assignment; investments.
(a) All funds of participating employees and participating employers shall be held in trust by the Treasurer for the exclusive benefit of the participating employees, participating employers and their beneficiaries, notwithstanding any other provision of this or related articles.
(b) Neither the participating employee, nor the participating employee's beneficiary or beneficiaries, nor any other designee, has any right to commute, sell, assign, transfer, or otherwise convey the right to receive any payments under the program. These payments and rights are nonassignable and nontransferable. Account balances are not subject to attachment, garnishment, or execution and are not transferable by operation of law in the event of bankruptcy, as provided in section four, article ten, chapter thirty-eight of this code, or insolvency, except for qualified domestic relations orders, as that term is defined in the Internal Revenue Code and to the extent otherwise required by law.
(c) Notwithstanding any provision of this code to the contrary, the Treasurer is authorized to invest funds in the trust in investment products or with financial institutions or other entities selected by the Treasurer.
(d) The corpus, assets and earnings of the trust do not constitute public funds of the state and are available solely for carrying out the purposes of this article. Any contract entered into by the Treasurer in connection with the plan does not create or constitute a debt, but is solely an obligation of the trust.
§5-10E-8. Federal and state income tax.
(a) Any compensation deferred under the plan is not subject to federal, state or municipal income tax, nor shall any amount of compensation deferred be included for the purposes of computation of any federal, state or municipal income tax withheld on behalf of a participating employee.
(b) Any funds other than deferred compensation contributed to an account shall receive any and all federal, state and municipal tax benefits available.

§5-10E-9. Costs; administrative account; start-up costs; reimbursement.

(a) The costs of establishing and operating the voluntary employee retirement accounts program and plan shall be paid from the fees assessed by the Treasurer and from any funds appropriated by the Legislature.
(b) The sole purpose of any funds appropriated by the Legislature is for start-up costs and to operate the program, plan and trust fund until the program provides sufficient funds for operation. Any appropriated moneys unused shall be returned to the fund from which they were appropriated. If the funds appropriated by the Legislature or otherwise available are insufficient to make the program self-sufficient, then the program, plan and trust fund shall terminate.
(c) The Voluntary Employee Retirement Accounts Plan Administration Account is created in the accounts of the Treasurer for the purposes of implementing, operating and maintaining the trust and plan. The account shall receive all fees charged and collected by the Treasurer, funds appropriated by the Legislature under this article, if any and any funds otherwise made available to the program.
(d) On or before July 1, 2011, the unclaimed property administrator shall transfer the amount of $1 million from the Unclaimed Property Trust Fund to the Voluntary Employee Retirement Accounts Plan Administration Account. The administrator may transfer the entire amount at one time or in increments not to exceed $1 million.
(e) Any funds appropriated by the Legislature for the program shall be reimbursed to the state from fees assessed for program operation in accordance with this article.
(f) Moneys in the administration fund may be invested, in whole or in part, by the Treasurer as he or she determines. All earnings shall accrue to and be retained by the fund.
§5-10E-10. No debt or obligation created; state and Treasurer not liable.
(a) Nothing in this article creates or permits any debt, liability or guarantee of the State of West Virginia or the Treasurer. Any contract with a participating employer, participating employee or beneficiary shall contain a provision that the participating employer, participating employee or beneficiary agree and understand no debt, liability or guarantee is created on the state or the Treasurer.
(b) The State of West Virginia and the Treasurer shall not incur any liability or responsibility for gains, losses or change in value of an investment product. The Treasurer may not insure, guarantee, incur any liability or have similar responsibility with respect to the accounts, moneys, or gains, losses or change in value on investments.
(c) The faith, credit and taxing power of the state may not be pledged directly, indirectly or contingently, morally or otherwise, to the payment of any debts or obligations of the program. Debts or obligations of the program may not be considered debts or obligations of the state or the Treasurer.
(d) The Treasurer shall not be subject to any personal liability for any act or omission with respect to the program or any responsibility under this article.
§5-10E-11. Confidential information exempt from disclosure.
All information contained in the records maintained pursuant to this article that would tend to disclose the identity of a participating employee or a beneficiary, including, without limitation, social security number, account number, address, telephone number, e-mail address, amounts invested, selected investments, returns and medical or disability information, are confidential and exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code. Participating employees and persons authorized by participating employees are permitted access to their own information.
§5-10E-12. Disclosure of information to the Treasurer for operation of the program and plan.
For purposes of this article, an employer with a participating employee shall disclose to the Treasurer any payroll related information the Treasurer determines he or she needs for the operation of the program and plan. Information disclosed pursuant to this section shall be used by the Treasurer for the operation of the program and plan only. The Treasurer shall treat the information obtained as confidential and shall not disclose the information except to an entity providing goods or services for the program and plan, who shall also treat the information as confidential, or as required by law.
CHAPTER 36. ESTATES AND PROPERTY.
ARTICLE 8. UNIFORM UNCLAIMED PROPERTY ACT.
§36-8-13. Deposit of funds.
(a) The administrator shall record the name and last known address of each person appearing from the holders reports to be entitled to the property and the name and last known address of each insured person or annuitant and beneficiary and with respect to each policy or annuity listed in the report of an insurance company, its number, the name of the company and the amount due.
(b) The Unclaimed Property Fund is continued. The administrator shall deposit all funds received pursuant to this article in the Unclaimed Property Fund, including the proceeds from the sale of abandoned property under section twelve of this article. In addition to paying claims of unclaimed property duly allowed, the administrator may deduct the following expenses from the Unclaimed Property Fund:
(1) Expenses of the sale of abandoned property;
(2) Expenses incurred in returning the property to owners, including without limitation the costs of mailing and publication to locate owners;
(3) Reasonable service charge; and
(4) Expenses incurred in examining records of holders of property and in collecting the property from those holders.
(c) The Unclaimed Property Trust Fund is continued within the State Treasury. The administrator may invest the Unclaimed Property Trust Fund with the West Virginia Board of Treasury Investments and all earnings shall accrue to the fund and are available for expenditure in accordance with this article. After deducting the expenses specified in subsection (b) of this section and maintaining a sum of money from which to pay claims duly allowed, the administrator shall transfer the remaining moneys in the Unclaimed Property Fund to the Unclaimed Property Trust Fund.
(d) (1) On July 1, 2009, the unclaimed property administrator shall transfer the amount of $8 million from the Unclaimed Property Trust Fund to the Prepaid Tuition Trust Escrow Fund.
(2) On or before December 15 of each year, notwithstanding any provision of this code to the contrary, the administrator shall transfer the sum of $1 million from the Unclaimed Property Trust Fund to the Prepaid Tuition Trust Escrow Fund, until the actuary certifies there are sufficient funds to pay out all contracts.
(e) On or before June 1, 2007, the unclaimed property administrator shall transfer the amount of $2 million from the Unclaimed Property Trust Fund to the Deferred Compensation Matching Fund for operation of the deferred compensation matching program for state employees. On or before June 1, 2008, the unclaimed property administrator shall transfer the amount of $1 million from the Unclaimed Property Trust Fund to the Deferred Compensation Matching Fund for operation of the matching program.
(f) On or before July 1, 2011, the unclaimed property administrator shall transfer the amount of $1 million from the Unclaimed Property Trust Fund to the Voluntary Employee Retirement Accounts Plan Administration Account. The administrator may transfer the entire amount at one time or in increments not to exceed $1 million.
~~(f)~~ (g) After transferring any money required by subsections (d), ~~and~~ (e) and (f) of this section, the administrator shall transfer moneys remaining in the Unclaimed Property Trust Fund to the General Revenue Fund.

NOTE: The purpose of this bill is to create the West Virginia Voluntary Employee Retirement Accounts Program, a voluntary tax-deferred retirement program for nongovernmental employers and employees in the State of West Virginia who are without a retirement plan. Participation by employers and employees is voluntary. All federal requirements must be met before operations begin. A trust and an administration account are established. The bill provides for initial start-up and operations funding of $1 million from the Unclaimed Property Trust Fund, subject to appropriation, and provides for repayment of the amount. The Treasurer is authorized to create and administer the program, apply for and receive grants and collect fees from accounts for operations. The bill specifically provides that no debt or obligation is created on the state or the Treasurer and that the state and the Treasurer are not liable for any investment gains, losses or change in value. Information of a personal nature gathered for participation in the program is confidential and not subject to a Freedom of Information Act request.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§5-10E-1, §5-10E-2, §5-10E-3, §5-10E-4, §5-10E-5, §5-10E-6, §5-10E-7, §5-10E-8, §5-10E-9, §5-10E-10, §5-10E-11 and §5-10E-12 are new; therefore, strike-throughs and underscoring have been omitted.

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