WEST virginia legislature
2021 regular session
Introduced
Senate Bill 467
By Senators Nelson, Phillips, and Stollings
[Introduced February 26,
2021; referred
to the Committee on Pensions; and then to the Committee on Finance]
A BILL to amend and reenact §8-22A-2, §8-22A-14, §8-22A-16, §8-22A-17, §8-22A-18, and §8-22A-22 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto two new sections, designated §8-22A-34 and §8-22A-35, all relating to the West Virginia Municipal Police Officers and Firefighters Retirement System; defining terms; removing conflicting and obsolete statutory provisions; clarifying preretirement death benefits; clarifying commencement date of disability benefits; adding return to covered employment provisions; and adding a severability clause.
Be it enacted by the Legislature of West Virginia:
ARTICLE 22A. WEST VIRGINIA MUNICIPAL POLICE OFFICERS AND FIREFIGHTERS RETIREMENT SYSTEM.
§8-22A-2. Definitions.
As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:
(a) “Accrued benefit” means on behalf of any member two and six-tenths percent per year of the member’s final average salary for the first 20 years of credited service. Additionally, two percent per year for 21 through 25 years and one percent per year for 26 through 30 years will be credited with a maximum benefit of 67 percent of a member’s final average salary. A member’s accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of §8-22A-10 of this code.
(b) “Accumulated contributions” means the sum of all retirement contributions deducted from the compensation of a member, or paid on his or her behalf as a result of covered employment, together with regular interest on the deducted amounts.
(c) “Active military duty” means full-time duty in the active military service of the United States Army, Navy, Air Force, Coast Guard, or Marine Corps. The term does not include regularly required training or other duty performed by a member of a reserve component or National Guard unless the member can substantiate that he or she was called into the full-time active military service of the United States and has received no compensation during the period of that duty from any board or employer other than the armed forces.
(d) “Actuarial equivalent” means a benefit of equal value computed on the basis of the mortality table and interest rates as set and adopted by the board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, “actuarial equivalent” shall be computed using the mortality tables and interest rates required to comply with those requirements.
(e) “Annual compensation” means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based on the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits, or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost-of-living in accordance with §5-10D-7 of this code and Section 401(a) (17) of the Internal Revenue Code.
(f) “Annual leave service” means accrued annual leave.
(g) “Annuity starting date” means the first day of the month for which an annuity is payable after submission of a retirement application or the required beginning date, if earlier. For purposes of this subsection, if retirement income payments commence after the normal retirement age, “retirement” means the first day of the month following or coincident with the latter of the last day the member worked in covered employment or the member’s normal retirement age and after completing proper written application for retirement on an application supplied by the board.
(h) “Beneficiary” means a natural person who is entitled to, or will be entitled to, an annuity or other benefit payable by the plan.
(h) (i) “Board” means the Consolidated Public
Retirement Board.
(i) (j) “Covered employment” means either: (1)
Employment as a full-time municipal police officer or firefighter and the
active performance of the duties required of that employment; or (2) the period
of time during which active duties are not performed but disability benefits
are received under this article; or (3) concurrent employment by a municipal
police officer or firefighter in a job or jobs in addition to his or her
employment as a municipal police officer or firefighter in this plan where the
secondary employment requires the police officer or firefighter to be a member
of another retirement system which is administered by the Consolidated Public
Retirement Board pursuant to this code: Provided, That the police
officer or firefighter contributes to the fund created in this article the
amount specified as the member’s contribution in §22A-2-8 of this code.
(j) (k) “Credited service” means the sum of a
member’s years of service, active military duty and disability service.
(k) (l) “Dependent child” means either: (1) An
unmarried person under age eighteen who is: (A) A natural child of the member;
(B) a legally adopted child of the member; (C) a child who at the time of the
member’s death was living with the member while the member was an adopting parent
during any period of probation; or (D) a stepchild of the member residing in
the member’s household at the time of the member’s death; or (2) Any unmarried
child under age 23: (A) Who is enrolled as a full-time student in an accredited
college or university; (B) who was claimed as a dependent by the member for
federal income tax purposes at the time of the member’s death; and (C) whose
relationship with the member is described in paragraph (A), (B) or (C),
subdivision (1) of this subsection.
(l) (m) “Dependent parent” means the father or
mother of the member who was claimed as a dependent by the member for federal
income tax purposes at the time of the member’s death.
(m) (n) “Disability service” means service credit
received by a member, expressed in whole years, fractions thereof, or both,
equal to one half of the whole years, fractions thereof, or both, during which
time a member receives disability benefits under this article.
(n) (o) “Effective date” means January 1, 2010.
(o) (p) “Final average salary” means the average
of the highest annual compensation received for covered employment by the
member during any five consecutive plan years within the member’s last 10 years
of service while employed, prior to any disability payment. If the member did
not have annual compensation for the five full plan years preceding the member’s
attainment of normal retirement age and during that period the member received
disability benefits under this article, then “final average salary” means the
average of the monthly compensation which the member was receiving in the plan
year prior to the initial disability. “Final average salary” does not include
any lump sum payment for unused, accrued leave of any kind or character.
(p) (q) “Full-time employment” means permanent
employment of an employee by a participating municipality in a position which
normally requires 12 months per year service and requires at least 1,040 hours
per year service in that position.
(q) (r) “Fund” means the West Virginia Municipal
Police Officers and Firefighters Retirement Fund created by this article.
(r) (s) “Hour of service” means: (1) Each hour for
which a member is paid or entitled to payment for covered employment during
which time active duties are performed. These hours shall be credited to the
member for the plan year in which the duties are performed; and (2) each hour
for which a member is paid or entitled to payment for covered employment during
a plan year but where no duties are performed due to vacation, holiday,
illness, incapacity including disability, layoff, jury duty, military duty,
leave of absence or any combination thereof and without regard to whether the
employment relationship has terminated. Hours under this subdivision shall be
calculated and credited pursuant to West Virginia Division of Labor rules. A
member will may not be credited with any hours of service for any
period of time he or she is receiving benefits under §8-22A-17 or §8-22A-18 of
this code; and (3) each hour for which back pay is either awarded or agreed to
be paid by the employing municipality, irrespective of mitigation of damages.
The same hours of service shall may not be credited both under
subdivision (1) or (2) of this subsection and under this subdivision. Hours
under this paragraph shall be credited to the member for the plan year or years
to which the award or agreement pertains, rather than the plan year in which
the award, agreement or payment is made.
(s) (t) “Member” means, except as provided in §8-22A-32
or §8-22A-33 of this code, a person hired as a municipal police officer or
municipal firefighter, as defined in this section, by a participating municipal
employer on or after January 1, 2010. A member shall remain a member until the
benefits to which he or she is entitled under this article are paid or
forfeited.
(t) (u) “Monthly salary” means the W-2 reportable
compensation received by a member during the month.
(u) (v) “Municipality” has the meaning ascribed to
it in this code.
(v)(w)(1) “Municipal
police officer” means an individual employed as a member of a paid police
department by a West Virginia municipality or municipal subdivision which has
established and maintains a municipal policemen’s pension and relief fund, and
who is not a member of, and not eligible for membership in, a municipal
policemen’s pension and relief fund as provided in §8-22-16 of this code:
Provided, That municipal police officer also means an individual employed
as a member of a paid police department by a West Virginia municipality or
municipal subdivision which is authorized to elect to participate in the plan
pursuant to §8-22A-33 of this code. Paid police department does not mean a
department whose employees are paid nominal salaries or wages or are paid only
for services actually rendered on an hourly basis.
(2) “Municipal firefighter” means an individual employed as a member of a paid fire department by a West Virginia municipality or municipal subdivision which has established and maintains a municipal firemen’s pension and relief fund, and who is not a member of, and not eligible for membership in, a municipal firemen’s pension and relief fund as provided in §8-22-16 of this code: Provided, That municipal firefighter also means an individual employed as a member of a paid fire department by a West Virginia municipality or municipal subdivision which is authorized to elect to participate in the plan pursuant to section §8-22A-33 of this code. Paid fire department does not mean a department whose employees are paid nominal salaries or wages or are paid only for services actually rendered on an hourly basis.
(w) (x) “Municipal subdivision” means any separate
corporation or instrumentality established by one or more municipalities, as
permitted by law; and any public corporation charged by law with the
performance of a governmental function and whose jurisdiction is coextensive
with one or more municipalities.
(x) (y) “Normal form” means a monthly annuity
which is one twelfth of the amount of the member’s accrued benefit which is
payable for the member’s life. If the member dies before the sum of the
payments he or she receives equals his or her accumulated contributions on the
annuity starting date, the named beneficiary shall receive in one lump sum the
difference between the accumulated contributions at the annuity starting date
and the total of the retirement income payments made to the member.
(y) (z) “Normal retirement age” means the first to
occur of the following: (1) Attainment of age 50 years and the completion of 20
or more years of regular contributory service; (2) while still in covered
employment, attainment of at least age 50 years and when the sum of current age
plus regular contributory service equals or exceeds 70 years; (3) while still
in covered employment, attainment of at least age 60 years and completion of 10
years of regular contributory service; or (4) attainment of age 62 years and
completion of five or more years of regular contributory service.
(z) (aa) “Plan” means the West Virginia Municipal
Police Officers and Firefighters Retirement System established by this article.
(aa) (bb) “Plan year” means the 12-month period
commencing on January 1 of any designated year and ending the following
December 31.
(bb) (cc) “Qualified public safety employee” means
any employee of a participating state or political subdivision who provides
police protection, firefighting services, or emergency medical services for any
area within the jurisdiction of the state or political subdivision, or such
other meaning given to the term by Section 72(t) (10) (B) of the Internal
Revenue Code or by Treasury Regulation §1.401(a)-1(b) (2) (v) as they may be
amended from time to time.
(cc) (dd) “Regular contributory service” means a
member’s credited service excluding active military duty, disability service
and accrued annual and sick leave service.
(dd) (ee) “Regular interest” means the rate or
rates of interest per annum, compounded annually, as the board adopts in
accordance with the provisions of this article
(ee) (ff) “Required beginning date” means April 1
of the calendar year following the later of: (1) The calendar year in which the
member attains age seventy and one-half; or (2) the calendar year in which he
or she retires or otherwise separates from covered employment.
(ff) (gg) “Retirement income payments” means the
monthly retirement income payments payable under the plan.
(gg) (hh) “Spouse” means the person to whom the
member is legally married on the annuity starting date.
(hh) (ii) “Surviving spouse” means the person to
whom the member was legally married at the time of the member’s death and who
survived the member.
(ii) (jj) “Totally disabled” means a member’s
inability to engage in substantial gainful activity by reason of any medically
determined physical or mental impairment that can be expected to result in
death or that has lasted or can be expected to last for a continuous period of
not less than 12 months. For purposes of this subsection: (1) A member is
totally disabled only if his or her physical or mental impairment or
impairments is so severe that he or she is not only unable to perform his or
her previous work as a police officer or firefighter but also cannot,
considering his or her age, education and work experience, engage in any other
kind of substantial gainful employment which exists in the state regardless of
whether: (A) The work exists in the immediate area in which the member lives;
(B) a specific job vacancy exists; or (C) the member would be hired if he or
she applied for work. For purposes of this article, substantial gainful
employment is the same definition as used by the United States Social Security
Administration; and (2) “Physical or mental impairment” is an impairment that
results from an anatomical, physiological, or psychological abnormality that is
demonstrated by medically accepted clinical and laboratory diagnostic
techniques. The board may require submission of a member’s annual tax return
for purposes of monitoring the earnings limitation.
(jj) (kk) “Vested” means eligible for retirement
income payments after completion of five or more years of regular contributory
service.
(kk) (ll) “Year of service” means a member shall,
except in his or her first and last years of covered employment, be credited
with years of service credit based on the hours of service performed as covered
employment and credited to the member during the plan year based on the
following schedule:
Hours of Service Year of Service Credited
Less than 500 0
500 to 999 1/3
1,000 to 1,499 2/3
1,500 or more 1
During a member’s first and last years of covered employment, the member shall be credited with one twelfth of a year of service for each month during the plan year in which the member is credited with an hour of service for which contributions were received by the fund. A member is not entitled to credit for years of service for any time period during which he or she received disability payments under §8-22A-17 or §8-22A-17 of this code.
§8-22A-14. Retirement benefits.
This section describes when adjustment of a member’s accrued benefit to reflect the difference in age, in years and months, between the member’s annuity starting date and the date the member attains normal retirement age shall be made. This age adjustment, when required, shall be made based on the normal form of benefit and shall be the actuarial equivalent of the accrued benefit at the member’s normal retirement age. The member shall receive the age adjusted retirement income in the normal form or in an actuarial equivalent amount in an optional form as provided under this article, subject to reduction if necessary to comply with the maximum benefit limitations of Section 415 of the Internal Revenue Code and §8-22A-10 of this code. The first day of the calendar month following the month of birth shall be used in lieu of any birth date that does not fall on the first day of a calendar month.
(a) Normal retirement. -- A member whose annuity starting date is the date the member attains normal retirement age is entitled to his or her accrued benefit without adjustment for age at commencement.
(b) Late retirement. --
A member whose annuity starting date is later than the date the member attains
normal retirement age shall receive retirement income payments in the normal
form without adjustment for age at commencement, which is the benefit to which
he or she is entitled according to his or her accrued benefit based on his or
her final average salary and credited service at the time of his or her actual
retirement and following the completion of an application for retirement as
required by the board
(c) Retirement benefits shall be paid monthly in an
amount equal to one twelfth of the retirement income payments elected and at
those times established by the board. Notwithstanding any other provision of
the plan, a member who is married on the annuity starting date will receive his
or her retirement income payments in the form of a sixty-six and two-thirds
percent joint and survivor annuity with his or her spouse unless prior to the
annuity starting date the spouse waives the form of benefit
§8-22A-16. Refunds to certain members on discharge or resignation; deferred retirement; preretirement death; forfeitures.
(a) Any member who terminates covered employment and is not eligible to receive disability benefits under this article is, by written request filed with the board, entitled to receive from the fund the member’s accumulated contributions. Except as provided in subsection (b) of this section, on withdrawal, the member shall forfeit his or her accrued benefit and cease to be a member.
(b)(1) Any member who ceases employment in covered employment and active participation in this plan and who thereafter becomes reemployed in covered employment may not receive any credited service for any prior accumulated contributions withdrawn from the plan unless following his or her return to covered employment and active participation in this plan, the member redeposits in the fund the amount of the accumulated contributions withdrawn from previous covered employment, together with interest on the accumulated contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. On repayment he or she shall receive the same credit on account of his or her former covered employment as if no refund had been made.
(2) The repayment authorized by this subsection shall be made in a lump sum within 60 months of the police officer’s or firefighter’s reemployment in covered employment.
(c) Every member who completes 60 months of regular contributory service may, on cessation of covered employment, either withdraw his or her accumulated contributions in accordance with this section or choose not to withdraw his or her accumulated contribution and receive retirement income payments, if eligible, on attaining normal retirement age.
(d) If a member dies from any cause other than those specified in §8-22A-20 of this code and does not have 10 or more years of credited service, the member’s accumulated contributions may be paid to a named beneficiary or beneficiaries. If no beneficiary is named, then the accumulated contributions shall be paid to the estate of the deceased member.
(d) (e) Notwithstanding
any other provision of this article, forfeitures under the plan may not be
applied to increase the benefits any member would otherwise receive under the
plan.
§8-22A-17. Awards and benefits for disability — duty related; exception during early period.
(a) Except as provided in §8-22A-9(a) of this code, any member who after the effective date of this article and during covered employment: (1) Has been or becomes totally disabled by injury, illness, or disease; and (2) the disability is a result of an occupational risk or hazard inherent in or peculiar to the services required of members; or (3) the disability was incurred while performing police officer or firefighter functions during either scheduled work hours or at any other time; and (4) in the opinion of two physicians after medical examination, at least one of whom shall be named by the board, the member is by reason of the disability not only unable to perform his or her previous work as a police officer or firefighter but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work, is entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the member or, if sooner, until the member attains normal retirement age or until the disability sooner terminates, the compensation under this section. For purposes of this article, substantial gainful employment is the same definition as used by the United States Social Security Administration.
(b) If the member is totally disabled, the member shall receive 90 percent of his or her average monthly compensation for months in which full compensation was received for the 12-month contributory period preceding the member’s disability or the shorter period if the member has not worked 12 months.
(c) If the member remains totally disabled until attaining 65 years of age, the member shall then receive the retirement benefit provided in §8-22A-14 and §8-22A-15 of this code.
(d) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.
§8-22A-18. Awards and benefits for disability — due to other causes; exception during early period.
(a) Except as provided in §8-22A-9(a) of this code, any municipal police officer or municipal firefighter with 10 or more years of contributory service who, after the effective date of this article and during covered employment: (1) Has been or becomes totally disabled from any cause other than those set forth in §8-22A-17 this code and not due to vicious habits, intemperance, or willful misconduct on his or her part; and (2) in the opinion of two physicians after medical examination, at least one of whom shall be named by the board, he or she is by reason of the disability not only unable to perform his or her previous work as a police officer or firefighter but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work, is entitled to receive and shall be paid from the fund in monthly installments during the lifetime of the member or, if sooner, until the member attains normal retirement age or until the disability sooner terminates, the compensation set forth in, either subsection (b) or (c) of this section.
(b) If the member is totally disabled, he or she shall receive 66 and two-thirds percent of his or her average monthly compensation for months in which full compensation was received for the 12-month contributory period preceding the disability.
(c) If the member remains totally disabled until attaining 60 years of age, then the member shall receive the retirement benefit provided in §8-22A-14 and §8-22A-15 of this code.
§8-22A-22. Additional death benefits and scholarships - dependent children.
(a) Except as provided in §8-22A-9 (a) of this code, in addition to the spouse death benefits in this article, the surviving spouse is entitled to receive and there shall be paid to the spouse $100 monthly for each dependent child.
(b) If the surviving spouse dies while receiving death benefits provided in §8-22A-20 or §8-22A-21 of this code, or if there is no surviving spouse, the fund shall pay monthly to each dependent child a sum equal to 100 percent of the spouse’s entitlement under this article divided by the number of dependent children. If there is neither a surviving spouse nor a dependent child, the fund shall pay in equal monthly installments to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is only one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, or any named beneficiary or beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member.
(c) Any person qualifying as a dependent child under this section, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding $7,500 per year, shall be paid from the fund to any higher education institution in this state, career-technical education provider in this state or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees, or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under rules provided by the board and maintains scholastic eligibility as defined by the institution or the board. The board may propose legislative rules for promulgation in accordance with §29A-3-1 et seq. of this code which define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications, and other requirements as necessary and not inconsistent with this section. Scholarship benefits awarded pursuant to this subsection are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.
§8-22A-34. Return to covered employment by retirant.
The annuity of any member who retires under the provisions of this article and who resumes service in covered employment shall be suspended while the member continues in covered employment. The monthly annuity payment for the month in which the service resumes shall be pro-rated to the date of commencement of service, and the member shall again become a contributing member during resumption of service. At the conclusion of resumed service in covered employment the member shall have his or her annuity recalculated to take into account the entirety of service in covered employment.
§8-22A-35. Severability.
If any part of this article is declared unconstitutional by a court of competent jurisdiction, that decision may not affect the validity of the remaining provisions of this article, or the article in its entirety.