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Introduced Version House Bill 2651 History

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hb2651 intr
H. B. 2651


(By Delegate Stalnaker)
[Introduced February 24, 2005 ; referred to the
Committee on Pensions and Retirement then Finance .]




A BILL to amend and reenact §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18-7B-20, all relating to amending certain definitions; clarifying participation requirement; providing employer deadlines for deposit of contributions; establishing when payments are to be made into and out of the suspension account; adding the Internal Revenue Service provisions concerning incidental death benefits; clarifying that all years of employee service will be counted for vesting purposes; prohibiting involuntary cash-outs effective June 30, 2005; and technical corrections.

Be it enacted by the Legislature of West Virginia:
That §18-7B-2, §18-7B-7, §18-7B-9, §18-7B-11, §18-7B-12a and §18-7B-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §18-7B-20, all to read as follows:
ARTICLE 7B. TEACHERS' DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-2. Definitions.
As used in this article, unless the context clearly require

a different meaning:
(1) "Defined contribution system" or "system" means the Teachers' Defined Contribution Retirement System created and established by this article:
(2) "Existing retirement system" means the State Teachers Retirement System established in article seven-a of this chapter;
(3) "Existing employer" means any employer who employed or employs a member of the existing retirement system;
(4) "Consolidated board" or "board" means the Consolidated Public Retirement Board created and established pursuant to article ten-d, chapter five of this code;
(5) "Member" or "employee" means the following persons, if regularly employed for full-time service: (A) Any person employed for instructional service in the public schools of West Virginia; (B) principals; (C) public school librarians; (D) superintendents of schools and assistant county superintendents of schools; (E) any county school attendance director holding a West Virginia teacher's certificate; (F) the executive secretary of the retirement board; (g) (F) members of the research, extension, administrative or library staffs of the public schools; (h) (G) the State Superintendent of Schools, heads and assistant heads of the divisions under his or her supervision, or any other employee under the State Superintendent performing services of an educational nature; (i) (H) employees of the State Board of Education who are performing services of an educational nature; (j) (I) any person employed in a nonteaching capacity by the State Board of Education, any county board of education or the State Department of Education or the teachers retirement board, if that person was formerly employed as a teacher in the public schools; (k) (J) all classroom teachers, principals and educational administrators in schools under the supervision of the Division of Corrections and the Department of Health and Human Resources; (l) (K) any person who is regularly employed for full-time service by any county board of education or the State Board of Education or the teachers retirement board; and (m) (L) the administrative staff of the public schools including deans of instruction, deans of men and deans of women, and financial and administrative secretaries;
(6) "Regularly employed for full-time service" means employment in a regular position or job throughout the employment term regardless of the number of hours worked or the method of pay;
(7) "Year of employment service" means employment for at least ten months, a month being defined as twenty employment days: Provided, That no more than one year of service may be accumulated in any twelve-month period;
(8) "Employer" means the agency of and within the state which has employed or employs a member;
(9) "Compensation" means the full compensation actually received by members for service whether or not a part of the compensation is received from other funds, federal or otherwise, than those provided by the state or its subdivisions;
(10) "Public schools" means all publicly supported schools, including normal schools, colleges and universities in this state;
(11) "Member contribution" means an amount reduced from the employee's regular pay periods, and deposited into the member's individual annuity account within the defined contribution retirement system;
(12) "Employer contribution" means an amount deposited into the member's individual annuity account on a periodic basis coinciding with the employee's regular pay period by an employer from its own funds;
(13) "Annuity account" or "annuity" means an account established for each member to record the deposit of member contributions and employer contributions and interest, dividends or other accumulations credited on behalf of the member;
(14) "Retirement" means a member's withdrawal from the active employment of a participating employer and completion of all conditions precedent to retirement;
(15) "Permanent, total disability" means a mental or physical incapacity requiring the absence from employment service for at least six months: Provided, That the incapacity is shown by an examination by a physician or physicians selected by the board: Provided, however, That for employees hired on or after July 1, 2005, permanent, total disability means an inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death, or has lasted or can be expected to last for a continuous period of not less than twelve months and the incapacity is so severe that the member is likely to be permanently unable to perform the duties of the position the member occupied immediately prior to his or her disabling injury or illness.
(16) "Plan year" means the twelve-month period commencing on the first day of July of any designated year and ending on the following thirtieth day of June;
(17) "Required beginning date" means the first day of April of the calendar year following the later of: (a) The calendar year in which the member attains age seventy-one and one-half; or (b) the calendar year in which the member retires or otherwise ceases employment with a participating employer; and
(18) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.
§18-7B-7. Participation in Teachers' Defined Contribution Retirement System; limiting participation in existing teachers retirement system.

(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as provided for in this section, the Teachers' Defined Contribution Retirement System shall be the single retirement program for all new employees whose employment commences on or after that date and all new employees shall be required to participate. No additional new employees except as may be provided for in this section may be admitted to the existing teachers retirement system.
(b) Members of the existing teachers retirement system whose employment continues beyond the first day of July, one thousand nine hundred ninety-one, and those whose employment was terminated after the thirtieth day of June, one thousand nine hundred ninety-one, under a reduction in force are not affected by subsection (a) of this section and shall continue to contribute to and participate in the existing teachers retirement system without a change in plan provisions or benefits.
(c) Any person who was previously a member of the teachers retirement system and who left participating employment before the creation of the defined contribution system on the first day of July, one thousand nine hundred ninety-one, and who later returned to participating employment after the effective date of this section has the right to elect to return to the existing teachers retirement system or to elect to participate in the defined contribution system. The election shall be made at the time of his or her reemployment, is irrevocable and shall be made upon forms approved by and filed with the West Virginia Consolidated Public Retirement Board.
(d) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one, a member of the existing teachers retirement system who left participating employment before the creation of the Teachers' Defined Contribution Retirement System on the first day of July, one thousand nine hundred ninety-one, and who later returned to participating employment after that date and who was precluded from returning to the existing teachers retirement system as a result of prior provisions of this section, may elect, pursuant to the provisions of this section, readmission to the existing teachers retirement system: Provided, That persons who are eligible to, and who make the election to, terminate their participation in the defined contribution system and to return to participation in the existing teachers retirement system as provided for in this section shall make the election, on a form approved by and filed with the West Virginia Consolidated Public Retirement Board on or before the thirtieth day of June, two thousand two: Provided, however, That as a condition of the right of readmission to the existing teachers retirement system, persons a person making the election provided for in this section whose defined contribution account had not, prior to such election, been divided by a qualified domestic relations order, shall pay an additional contribution to the existing teachers retirement system equal to one and one-half percent of his or her annual gross compensation earned for each year during which he or she participated in the defined contribution system and shall consent and agree to the transfer of his or her total account balance in the defined contribution system as of the most recent plan valuation immediately preceding his or her transfer to the existing teachers retirement system. For persons a person making the election provided for in this section whose defined contribution account had, prior to such the election, previously been divided by a qualified domestic relations order, the cost to such person to transfer to the existing teachers retirement system shall be actuarially determined by the Consolidated Public Retirement Board. Upon verification of that person's eligibility to return to participation in the existing teachers retirement system and the tender and transfer of funds as provided for in this subsection, persons a person making this election shall receive service credit for the time the member participated in the defined contribution system as if his or her participation had been in the existing teachers retirement system: Provided further, That the right to terminate participation in the defined contribution system and to resume participation in the existing teachers retirement system as provided for in this section is irrevocable and shall not apply to any person who, while members a member of the teachers retirement system, voluntarily elected to terminate his or her membership in the teachers retirement system and to become a participant in the defined contribution system pursuant to section eight of this article.
(e) Any employee whose employment with an employer was suspended or terminated while he or she served as an officer with a statewide professional teaching association, is eligible for readmission to the existing retirement system in which he or she was a member.
(f) An employee whose employment with an employer or an existing employer is suspended as a result of an approved leave of absence, approved maternity or paternity break in service or any other approved break in service authorized by the Board is eligible for readmission to the existing retirement system in which he or she was a member.
(g) In all cases in which a question exists as to the right of an employee to readmission to membership in the existing teachers retirement system, the Consolidated Public Retirement Board shall decide the question.
(h) Any individual who is not a "member" or "employee" as defined by section two of this article and any individual who is a leased employee is not eligible to participate in the teachers' defined contribution system. For purposes of this section, a "leased" employee means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or other similar organization. In all cases in which a question exists as to whether an individual is eligible for membership in this system, the Consolidated Public Retirement Board shall decide the question.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the defined contribution system shall contribute four and one-half percent of his or her gross compensation by salary reduction. Such The salary reductions shall be made by the employer at the normal payroll intervals and shall be paid to the Teachers' Defined Contribution Retirement System within fifteen days of the end of the pay period. These payments shall be remitted within five working days to the private pension, insurance, annuity, mutual fund, or other qualified company or companies designated by the Board to administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to an account or accounts established in the name of the member and held in trust for the benefit of the member. An account agreement shall be issued to each member setting forth the terms and conditions under which contributions are received, and the investment and retirement options available to the member. The Board shall promulgate by the thirtieth day of June, one thousand nine hundred ninety-one propose for legislative approval, pursuant to section six of this article, rules defining the minimum requirements for the investment and retirement options to be provided to the members.
The consolidated public employees retirement board shall study the feasibility of employees making personal contributions to the defined contribution system in addition to those required by this section and the impact of the United States Internal Revenue Code of one thousand nine hundred eighty-six, as amended, upon such contributions. The results of said study and recommendations for legislation to authorize such additional payments shall be presented to the committee on pensions and retirement of each house of the Legislature on or before the first day of October, one thousand nine hundred ninety-six.
(c) Such rules Legislative rule, to the extent not inconsistent with the applicable provisions of the Internal Revenue Code of the United States, shall provide for varied retirement options including, but not limited to: (1) Lump sum or periodic payment distributions; (2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the Board;(4) Variable annuities which gradually increase monthly retirement payments: Provided, That said increased payments are funded solely by the existing current value of the member's account at the time the member's retirement payments commencement commence and not, to any extent, in a manner which would require additional employer or employee contributions to any member's account after retirement or after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can be made to members from their annuity account balances prior to having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer terminates after the completion of six complete years of employment service shall be eligible to terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus one third of the employer contributions and any earnings thereon. Any member whose employment with a participating employer terminates after the completion of nine complete years of employment service shall be eligible to terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus two thirds of the employer's contributions and any earnings thereon. Any member whose employment with a participating employer terminates after the completion of twelve complete years of employment service shall be eligible to terminate his or her annuity account and receive a distribution of all funds contributed and accumulated in his or her annuity account. Any member whose employment with a participating employer terminates prior to the completion of six complete years of employment service shall be eligible to terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal to the member's contribution plus any earnings thereon: Provided, That on the death or permanent, total disability of any member, that member shall be eligible to terminate his or her annuity account and receive all funds contributed to or accumulated in his or her annuity account.
(b) (1) Upon termination of employment, regardless of whether the member has taken a distribution of all or a portion of his or her vested account, the The remaining balance, if any, in the member's employer account after the distribution that is not vested shall be remitted and paid into a suspension account, hereby created, to be administered by the Board. The Board shall promulgate propose for legislative approval rules regarding the distribution of any balance in the special account created by this section: Provided, That any funds in the account shall be used solely for the purpose of reducing employer contributions in future years. (2) Any account balances remitted to the suspension account herein shall be maintained by the Board in said the suspension account in the name of the terminated employee for a period of five years following initial remittance to the suspension account the member's termination of employment. For each said terminated employee at the culmination of the aforesaid five-year period, the Board shall certify in writing to each contributing employer the amount of the account balances balance plus earnings thereon attributable to each separate contributing employers employer's previously terminated employees' accounts which have employee's account which has been irrevocably forfeited due to the elapse of a five-year period since termination pursuant to section sixteen of this article.
(c) Upon certification to the several contributing employers of the aggregate account balances plus earnings thereon which have been irrevocably forfeited pursuant to this section, the several contributing employers shall be permitted in the next succeeding fiscal year or years to reduce their total aggregate contribution requirements pursuant to section seventeen of this article, for the then current fiscal year by an amount equal to the aggregate amounts irrevocably forfeited and certified as such to each contributing employer: Provided, That should the participating employer no longer be contributing to the defined contribution system, any funds in the account shall be paid directly to the employer.
(d) Upon the utilization use of the amounts irrevocably forfeited to any contributing employer as a reduction in the then current fiscal year contribution obligation and upon notification provided by the several contributing employers to the Board of their intention to utilize use irrevocably forfeited amounts, the Board shall direct the distribution of said the irrevocably forfeited amounts from the suspension account to be deposited on behalf of the contributing employer to the member annuity accounts of its then current employees pursuant to section seventeen of this article: Provided, That notwithstanding any provision of this article to the contrary, when a member is or has been elected to serve as a member of the Legislature, and the proper discharge of his or her duties of public office require requires that member to be absent from his or her teaching, nonteaching or administrative duties, the time served in discharge of his or her duties of the legislative office are credited as time served for purposes of computing service credit, regardless when this time was served: Provided, however, That the Board may not require any additional contributions from that member in order for the Board to credit him or her with the contributing service credit earned while discharging official legislative duties: Provided further, That nothing herein may be construed to relieve the employer from making the employer contribution at the member's regular salary rate or rate of pay from that employer on the contributing service credit earned while the member is discharging his or her official legislative duties. These employer payments shall commence as of the first day of July, two thousand three: And provided further, That any member to which the provisions of this subsection apply may elect to pay to the Board an amount equal to what his or her contribution would have been for those periods of time he or she was serving in the Legislature.
§18-7B-12a. Federal minimum required distributions.

The requirements of this section apply to any distribution of a member's or beneficiary's interest and take precedence over any
inconsistent provisions of this defined contribution system. This

section applies to plan years beginning after the thirty-first day of December, one thousand nine hundred eighty-six. Notwithstanding anything in this system to the contrary, the payment of benefits under this article shall be determined and made in accordance with Section 401 (a) (9) of the Internal Revenue Code and the regulations thereunder, including without limitation the incidental death benefit provisions of Section 401 (a) (9)(G) of the Internal Revenue Code and the regulations thereunder. For this purpose, the following provisions apply:
(a) The payment of benefits under the defined contribution system to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under Section 401 (a) (9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary.
(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the system has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his
or her death.

(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the system shall be distributed by the thirty-first day of December of the calendar year containing the fifth anniversary of the member's death, except as follows:
(1) If a member's interest is payable to a beneficiary, distributions may be made over the life of that beneficiary or over a period certain not greater than the life expectancy of the beneficiary commencing on or before the thirty-first day of December of the calendar year immediately following the calendar year in which the participant died; or
(2) If the member's beneficiary is the surviving spouse, the date distributions are required to begin shall be no later than the later of:
(A) The thirty-first day of December of the calendar year in which the member would have attained age seventy and one-half; or
(B) The earlier of (i) The thirty-first day of December of the calendar year in which the member died; or (ii) the thirty-first day of December of the calendar year following the calendar year in which the spouse died.
(d) For purposes of this section, any amount paid to a child of a member will be treated as if it had been paid to the surviving spouse of the member if such remaining amount becomes payable to the surviving spouse when the child reaches the age of majority. §18-7B-16. Years of employment service.
(a) A member of the defined contribution system who terminates employment with a participating employer and does not remove any funds from his or her annuity vested employee and employer account, or who removes the funds and repays them withing five years after termination, and becomes reemployed with a participating employer within five years shall retain his or her previous years of employment service for purposes of the provisions of section eleven of this article. does not forfeit any amounts placed into the suspension account pursuant to section eleven of this article and they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for vesting purposes under section eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
Notwithstanding any provision of this section or of any legislative rule contained in series three, involuntary cash-outs to members may not be made after the thirtieth day of June, two thousand five.

NOTE: The purpose of this bill is to amend certain definitions, clarify participation requirement, establish employer deadlines for deposit of contributions, establish when payments are to be made into and out of the suspension account, add the Internal Revenue Service provisions concerning incidental death benefits, clarify that all years of employee service will be counted for vesting purposes; prohibit involuntary cash-outs effective June 30, 2005, and technical corrections.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§18-7B-20 is new; therefore, underscoring and strike-throughs have been omitted.
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