Introduced Version
House Bill 2909 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2909
(By Delegate Stalnaker)
[Introduced
March 7, 2005
; referred to the
Committee on Pensions and Retirement then Finance
.]
A BILL to amend and reenact §5-10-2, §5-10-15, §5-10-17, §5-10-21,
§5-10-22, §5-10-23, §5-10-26, §5-10-27 and §5-10-44 of the
Code of West Virginia, 1931, as amended, all relating to the
Public Employees Retirement System, revising definitions;
clarifying use of restricted qualified military service credit
to one retirement system; restricting certain rights of
members to select a plan beneficiary; requiring annual
physician review and an annual statement of earnings from
certain persons receiving disability retirement payments;
providing that interest is to be included in the calculation
of terminal benefits payable as the result of death of retired
participants; providing guidance on correcting employer
errors; clarifying use of members' unused, accrued leave in
final average salary; and technical corrections.
Be it enacted by the Legislature of West Virginia:
That §5-10-2, §5-10-15, §5-10-17, §5-10-21, §5-10-22, §5-10-
23, §5-10-27 and §5-10-44 of the Code of West Virginia, 1931, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-2. Definitions.
Unless a different meaning is clearly indicated by the
context, the following words and phrases as used in this article,
have the following meanings:
1) "State" means the state of West Virginia;
(2) "Retirement system" or "system" means the West Virginia
public employees retirement system created and established by this
article;
(3) "Board of trustees" or "board" means the board of trustees
of the West Virginia public employees retirement system;
(4) "Political subdivision" means the state of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the public employees retirement system before the first day of July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the public employees retirement system
to remain members and continue to participate in the retirement
system at their option after the first day of July, one thousand
nine hundred ninety-seven: Provided, however, That the regional
community policing institute which participated in the public
employees retirement system before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the public
employees retirement system to remain members and continue to
participate in the public employees retirement system after the
first day of July, two thousand;
(5) "Participating public employer" means the state of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
supreme court of appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia public employees retirement system;
(6) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose
compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia national guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That members of the Legislature, the clerk of the House of
Delegates, the clerk of the Senate, employees of the Legislature
whose term of employment is otherwise classified as temporary and
who are employed to perform services required by the Legislature
for its regular sessions or during the interim between regular
sessions and who have been or are employed during regular sessions
or during the interim between regular sessions in seven consecutive
calendar years, as certified by the clerk of the house in which the
employee served, members of the legislative body of any political
subdivision and judges of the state court of claims are considered
to be employees, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the board of trustees shall
decide the question;
(7) "Member" means any person who is included in the
membership of the retirement system;
(8) "Retirant" means any member who retires with an annuity
payable by the retirement system;
(9) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(10) "Service" means personal service rendered to a
participating public employer by an employee, as defined in this
article, of a participating public employer;
(11) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(12) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article. This revised
definition is retroactive and applicable to the first day of April,
one thousand nine hundred eighty-eight, and thereafter;
(13) "Credited service" means the sum of a member's prior
service credit and contributing service credit standing to his or
her credit as provided in this article;
(14) "Limited credited service" means service by employees of
the West Virginia educational broadcasting authority, in the
employment of West Virginia university, during a period when the
employee made contributions to another retirement system, as
required by West Virginia university, and did not make contributions to the public employees retirement system: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(15) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by him
or her to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
his or her remuneration which is not paid in money;
(16) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member (including a member of the Legislature who participates in
the retirement system in the year one thousand nine hundred
seventy-one or thereafter) during any period of three consecutive
years of his or her credited service contained within his or her
ten years of credited service immediately preceding the date his or
her employment with a participating public employer last
terminated; or
(B) If he or she has less than five years of credited service,
the average of the annual rate of compensation received by him or
her during his or her total years of credited service; and in determining the annual compensation, under either paragraph (A) or
(B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year one thousand nine hundred seventy-one or in
any year thereafter, his or her actual legislative compensation
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code) in the year one
thousand nine hundred seventy-one or in any year thereafter, plus
any other compensation he or she receives in any year from any
other participating public employer including the state of West
Virginia, without any multiple in excess of one times his or her
actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years
and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight, plus the highest other compensation the former member or member
received in any one of the three years from any other participating
public employer including the state of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of
one thousand five hundred dollars multiplied by eight, and the
legislative compensation of the member shall be computed on the
basis set forth in the provisions of this subdivision immediately
preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(17) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(18) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts
from time to time;
(19) "Annuity" means an annual amount payable by the
retirement system throughout the life of a person. All annuities shall be paid in equal monthly installments, using the upper cent
for any fraction of a cent;
(20) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the board of
trustees from time to time;
(21) "Retirement" means a member's withdrawal from the employ
of a participating public employer with an annuity payable by the
retirement system;
(22) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(23) "Retroactive service" means: (1) Service an employee was
entitled to, but which the employer has not withheld d to
prior service at no cost in accordance with 162 CSR 5.1613;
(24) "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 and one-half; or (B) the
calendar year in which the member ceases providing service covered
under this system to a participating employer;
(25) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as it has been amended; and
(26) "Plan year" means the same as referenced in section
forty-two of this article.
(1) "Accumulated contributions" means the sum of all amounts
deducted from the compensations of a member and credited to his or
her individual account in the members' deposit fund, together with
regular interest on the contributions;
(2) "Accumulated net benefit" means the aggregate amount of
all benefits paid to or on behalf of a retired member;
(3) "Actuarial equivalent" means a benefit of equal value
computed upon the basis of a mortality table and regular interest
adopted by the board of trustees from time to time;
(4) "Annuity" means an annual amount payable by the retirement
system throughout the life of a person. All annuities shall be
paid in equal monthly installments, using the upper cent for any
fraction of a cent;
(5) "Annuity reserve" means the present value of all payments
to be made to a retirant or beneficiary of a retirant on account of
any annuity, computed upon the basis of mortality and other tables
of experience, and regular interest, adopted by the Board of
Trustees from time to time;
(6) "Beneficiary" means any person, except a retirant, who is
entitled to, or will be entitled to, an annuity or other benefit
payable by the retirement system;
(7) "Board of Trustees" or "board" means the Board of Trustees
of the West Virginia Consolidated Public Retirement System;
(8) "Compensation" means the remuneration paid a member by a
participating public employer for personal services rendered by the
member to the participating public employer. In the event a
member's remuneration is not all paid in money, his or her
participating public employer shall fix the value of the portion of
the remuneration which is not paid in money;
(9) "Contributing service" means service rendered by a member
within this state and for which the member made contributions to a
public retirement system account of this state, to the extent
credited him or her as provided by this article. This revised
definition is retroactive and applicable to the first day of April,
one thousand nine hundred eighty-eight, and thereafter;
(10) "Credited service" means the sum of a member's prior
service credit, military service credit, workers' compensation
service credit and contributing service credit standing to his or
her credit as provided in this article;
(11) "Employee" means any person who serves regularly as an
officer or employee, full time, on a salary basis, whose tenure is
not restricted as to temporary or provisional appointment, in the
service of, and whose compensation is payable, in whole or in part,
by any political subdivision, or an officer or employee whose compensation is calculated on a daily basis and paid monthly or on
completion of assignment, including technicians and other personnel
employed by the West Virginia National Guard whose compensation, in
whole or in part, is paid by the federal government: Provided,
That an employee of the Legislature whose term of employment is
otherwise classified as temporary and who is employed to perform
services required by the Legislature for its regular sessions or
during the interim between regular sessions and who has been or is
employed during regular sessions or during the interim between
regular sessions in seven or more consecutive calendar years, as
certified by the Clerk of the House in which the employee served,
is an employee, any provision to the contrary in this article
notwithstanding, and is entitled to credited service in accordance
with provisions of section fourteen, article ten, chapter five of
this code, and: Provided further, That members of the legislative
body of any political subdivision and judges of the State Court of
Claims are employees receiving one year of service credit for each
one year term served and pro rated service credit for any partial
term served, anything contained in this article to the contrary
notwithstanding. In any case of doubt as to who is an employee
within the meaning of this article, the board of trustees shall
decide the question;
(12) "Employer error" means an omission, misrepresentation, or
violation of relevant provisions of the West Virginia Code and/or West Virginia Code of State Regulations by the participating public
employer that has resulted in an underpayment or overpayment of
contributions required. A deliberate act contrary to the
provisions of this section by a participating public employer shall
not constitute employer error.
(13) "Final average salary" means either:
(A) The average of the highest annual compensation received by
a member, (including a member of the Legislature who participates
in the retirement system in the year one thousand nine hundred
seventy-one or thereafter), during any period of three consecutive
years of credited service contained within the member's ten years
of credited service immediately preceding the date his or her
employment with a participating public employer last terminated; or
(B) If the member has less than five years of credited
service, the average of the annual rate of compensation received by
the member during his or her total years of credited service; and
in determining the annual compensation, under either paragraph (A)
or (B) of this subdivision, of a member of the Legislature who
participates in the retirement system as a member of the
Legislature in the year one thousand nine hundred seventy-one, or
in any year thereafter, his or her actual legislative compensation,
(the total of all compensation paid under sections two, three, four
and five, article two-a, chapter four of this code), in the year
one thousand nine hundred seventy-one, or in any year thereafter, plus any other compensation he or she receives in any year from any
other participating public employer including the State of West
Virginia, without any multiple in excess of one times his or her
actual legislative compensation and other compensation, shall be
used: Provided, That "final average salary" for any former member
of the Legislature or for any member of the Legislature in the year
one thousand nine hundred seventy-one, who, in either event, was a
member of the Legislature on the thirtieth day of November, one
thousand nine hundred sixty-eight, or the thirtieth day of
November, one thousand nine hundred sixty-nine, or the thirtieth
day of November, one thousand nine hundred seventy, or on the
thirtieth day of November in any one or more of those three years
and who participated in the retirement system as a member of the
Legislature in any one or more of those years means: (i) Either
(notwithstanding the provisions of this subdivision preceding this
proviso) one thousand five hundred dollars multiplied by eight,
plus the highest other compensation the former member or member
received in any one of the three years from any other participating
public employer including the State of West Virginia; or (ii)
"final average salary" determined in accordance with paragraph (A)
or (B) of this subdivision, whichever computation produces the
higher final average salary (and in determining the annual
compensation under (ii) of this proviso, the legislative
compensation of the former member shall be computed on the basis of one thousand five hundred dollars multiplied by eight, and the
legislative compensation of the member shall be computed on the
basis set forth in the provisions of this subdivision immediately
preceding this proviso or on the basis of one thousand five hundred
dollars multiplied by eight, whichever computation as to the member
produces the higher annual compensation);
(14) "Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended, codified at Title 26 of the United States
Code;
(15) "Limited credited service" means service by employees of
the West Virginia Educational Broadcasting Authority, in the
employment of West Virginia University, during a period when the
employee made contributions to another retirement system, as
required by West Virginia University, and did not make
contributions to the Public Employees Retirement System: Provided,
That while limited credited service can be used for the formula set
forth in subsection (e), section twenty-one of this article, it may
not be used to increase benefits calculated under section twenty-
two of this article;
(16) "Member" means any person who has accumulated
contributions standing to his or her credit in the members' deposit
fund;
(17) "Participating public employer" means the State of West
Virginia, any board, commission, department, institution or
spending unit, and includes any agency created by rule of the
Supreme Court of Appeals having full-time employees, which for the
purposes of this article is considered a department of state
government; and any political subdivision in the state which has
elected to cover its employees, as defined in this article, under
the West Virginia Public Employees Retirement System;
(18) "Plan year" means the same as referenced in section
forty-two of this article;
(19) "Political subdivision" means the State of West Virginia,
a county, city or town in the state; a school corporation or
corporate unit; any separate corporation or instrumentality
established by one or more counties, cities or towns, as permitted
by law; any corporation or instrumentality supported in most part
by counties, cities or towns; and any public corporation charged by
law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or
towns: Provided, That any mental health agency participating in
the Public Employees Retirement System before the first day of
July, one thousand nine hundred ninety-seven, is considered a
political subdivision solely for the purpose of permitting those
employees who are members of the Public Employees Retirement System
to remain members and continue to participate in the retirement system at their option after the first day of July, one thousand
nine hundred ninety-seven: Provided, however, That the Regional
Community Policing Institute which participated in the Public
Employees Retirement System before the first day of July, two
thousand, is considered a political subdivision solely for the
purpose of permitting those employees who are members of the Public
Employees Retirement System to remain members and continue to
participate in the Public Employees Retirement System after the
first day of July, two thousand;
(20) "Prior service" means service rendered prior to the first
day of July, one thousand nine hundred sixty-one, to the extent
credited a member as provided in this article;
(21) "Regular interest" means the rate or rates of interest
per annum, compounded annually, as the board of trustees adopts
from time to time;
(22) "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 and one-half; or (B) the
calendar year in which the member ceases providing service covered
under this system to a participating employer;
(23) "Retirant" means any member who commences an annuity
payable by the retirement system;
(24) "Retirement" means a member's withdrawal from the employ
of a participating public employer and the commencement of an
annuity by the retirement system;
(25) "Retirement system" or "system" means the West Virginia
Public Employees Retirement System created and established by this
article;
(26) "Retroactive service" means: (1) Service between the
first day of July, one thousand nine hundred sixty-one, and the
date an employer decides to become a participating member of the
Public Employees Retirement System; (2) service prior to the first
day of July, one thousand nine hundred sixty-one, for which the
employee is not entitled to prior service at no cost in accordance
with 162 CSR 5.13; and (3) service of any member of a legislative
body or employees of the State Legislature whose term of employment
is otherwise classified as temporary for which the employee is
eligible, but for which the employee did not elect to participate
at that time;
(27) "Service" means personal service rendered to a
participating public employer by an employee of a participating
public employer; and
(28) "State" means the State of West Virginia.
§5-10-15. Military service credit; qualified military service.
(a) (1) The Legislature recognizes the men and women of this state who have served in the armed forces of the United States
during times of war, conflict and danger. It is the intent of this
section to confer military service credit upon persons who are
eligible at any time for public employees retirement benefits for
any time served in active duty in the armed forces of the United
States when the duty was during any period of compulsory military
service or during a period of armed conflict, as defined in this
section.
(2) In addition to any benefit provided by federal law, any
member of the retirement system who has previously served in or
enters the active service of the armed forces of the United States
during any period of compulsory military service or during a period
of armed conflict shall receive credited service for the time spent
in the armed forces of the United States, not to exceed five years
if the member:
(A) Has been honorably discharged from the armed forces; and
(B) Substantiates by appropriate documentation or evidence his
or her active military service and entry into military service
during any period of compulsory military service or during periods
of armed conflict.
(3) Any member of the retirement system who enters the active
service of the armed forces of the United States during any period
of compulsory military service or during a period of armed conflict shall receive the credit provided by this section regardless of
whether he or she was a public employee at the time of entering the
military service.
(4) If a member of the Public Employees Retirement System
enters the active service of the United States and serves during
any period of compulsory military service or during any period of
armed conflict, during the period of the armed service and until
the member's return to the employ of a participating public
employer, the member's contributions to the retirement system is
suspended and any credit balance remaining in the member's deposit
fund shall be accumulated at regular interest.
(5) No member may receive duplicate credit for service for a
period of compulsory military service which falls under a period of
armed conflict.
(6) In any case of doubt as to the period of service to be
credited a member under the provisions of this section, the board
of trustees have final power to determine the period.
(7) The board is empowered to consider a petition by any
member whose tour of duty, in a territory that would reasonably be
considered hostile and dangerous, was extended beyond the period in
which an armed conflict was officially recognized, if that tour of
duty commenced during a period of armed conflict, and the member
was assigned to duty stations within the hostile territory throughout the period for which service credit is being sought.
The board has the authority to evaluate the facts and circumstances
peculiar to the petition, and rule on whether granting service
credit for the extended tour of duty is consistent with the
objectives of this article. In that determination, the board is
empowered to grant full credit for the period under petition
subject to the limitations otherwise applicable, or to grant credit
for any part of the period as the board considers appropriate, or
to deny credit altogether.
(8) The board of trustees may propose legislative rules for
promulgation in accordance with the provisions of article three,
chapter twenty-nine-a of this code to administer the provisions of
this section.
(b) For purposes of this section, the following definitions
apply:
(1) "Period of armed conflict" means the Spanish-American War,
the Mexican border period, World War I, World War II, the Korean
conflict, the Vietnam era, the Persian Gulf War and any other
period of armed conflict by the United States, including, but not
limited to, those periods sanctioned by a declaration of war by the
United States Congress or by executive or other order of the
President.
(2) "Spanish-American War" means the period beginning on the
twenty-first day of April, one thousand eight hundred ninety-eight,
and ending on the fourth day of July, one thousand nine hundred
two, and includes the Philippine Insurrection, the Boxer Rebellion,
and in the case of a veteran who served with the United States
military forces engaged in hostilities in the Moro Province, means
the period beginning on the twenty-first day of April, one thousand
eight hundred ninety-eight, and ending on the fifteenth day of
July, one thousand nine hundred three.
(3) "The Mexican border period" means the period beginning on
the ninth day of May, one thousand nine hundred sixteen, and ending
on the fifth day of April, one thousand nine hundred seventeen, in
the case of a veteran who during the period served in Mexico, on
its borders or in the waters adjacent to it.
(4) "World War I" means the period beginning on the sixth day
of April, one thousand nine hundred seventeen, and ending on the
eleventh day of November, one thousand nine hundred eighteen, and
in the case of a veteran who served with the United States military
forces in Russia, means the period beginning on the sixth day of
April, one thousand nine hundred seventeen, and ending on the first
day of April, one thousand nine hundred twenty.
(5) "World War II" means the period beginning on the seventh
day of December, one thousand nine hundred forty-one, and ending on the thirty-first day of December, one thousand nine hundred forty-six.
(6) "Korean conflict" means the period beginning on the
twenty-seventh day of June, one thousand nine hundred fifty, and
ending on the thirty-first day of January, one thousand nine
hundred fifty-five.
(7) "The Vietnam era" means the period beginning on the
twenty-eighth day of February, one thousand nine hundred sixty-one,
and ending on the seventh day of May, one thousand nine hundred
seventy-five, in the case of a veteran who served in the Republic
of Vietnam during that period; and the fifth day of August, one
thousand nine hundred sixty-four, and ending on the seventh day of
May, one thousand nine hundred seventy-five, in all other cases.
(8) "Persian Gulf War" means the period beginning on the
second day of August, one thousand nine hundred ninety, and ending
on the eleventh day of April, one thousand nine hundred ninety-one.
(c) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to
qualified military service shall be provided in accordance with
Section 414(u) of the Internal Revenue Code. For purposes of this
section, "qualified military service" has the same meaning as in
Section 414(u) of the Internal Revenue Code. No military service
credit may be used in more than one retirement system administered
by the Consolidated Public Retirement Board. The retirement Board is authorized to determine all questions and make all decisions
relating to this section and, pursuant to the authority granted to
the retirement Board in section one, article ten-d of this chapter,
may promulgate rules relating to contributions, benefits and
service credit to comply with Section 414(u) of the Internal
Revenue Code.
§5-10-17. Retirement system membership.
(a) All employees, as defined in section two of this article,
who are in the employ of a political subdivision the day preceding
the date it becomes a participating public employer and who
continue in the employ of the participating public employer on and
after that date shall become members of the retirement system; and
all persons who become employees of a participating public employer
on or after that date shall thereupon become members of the system;
except as provided in subdivisions (b) and (c) of this section.
(b) The membership of the Public Employees Retirement System
shall not include any person who is a an active contributing member
of, or who has been retired by, any of the State Teachers
retirement systems, the Judges Retirement System, the any
Retirement System of the Division of Public Safety West Virginia
State Police, the Deputy Sheriff Retirement System or any municipal
retirement system for either, or both, policemen police or firemen
firefighter; and the Bureau of Employment Programs, by the
Commissioner of the Bureau, may elect whether its employees will accept coverage under this article or be covered under the
authorization of a separate enactment: Provided, That the
exclusions of membership shall not apply to any member of the State
Legislature, the Clerk of the House of Delegates, the Clerk of the
State Senate or to any member of the legislative body of any
political subdivision provided he or she once becomes a
contributing member of the retirement system: Provided, however,
That any retired member of the retirement system of the division of
public safety State Police Death, Disability and Retirement Fund,
the West Virginia State Police Retirement System, the Deputy
Sheriff Retirement System and any retired member of any municipal
retirement system for either, or both, policemen police or firemen
firefighter may on and after the effective date of this section
become a member of the retirement system as provided in this
article, without receiving credit for prior service as a municipal
policeman police officer or fireman firefighter or as a member of
the division of public safety State Police Death, Disability and
Retirement Fund, the West Virginia State Police Retirement System
or of the Deputy Sheriff Retirement System: Provided further, That
the membership of the retirement system does not include any person
who becomes employed by the Prestera Center for Mental Health
Services, Valley Comprehensive Mental Health Center, Westbrook
Health Services or Eastern Panhandle Mental Health Center on or
after the first day of July, one thousand nine hundred ninety-seven: And provided further, That membership of the retirement
system does not include any person who becomes a member of the
federal railroad retirement act on or after the first day of July,
two thousand.
(c) Any member of the State Legislature, the Clerk of the
House of Delegates, the Clerk of the State Senate and any employee
of the State Legislature whose employment is otherwise classified
as temporary and who is employed to perform services required by
the Legislature for its regular sessions or during the interim
between regular sessions and who has been or is so employed during
regular sessions or during the interim between sessions in seven
consecutive calendar years, as certified by the clerk of the house
in which the employee served, or any member of the legislative body
of any other political subdivision shall become a member of the
retirement system provided he or she notifies the retirement system
in writing of his or her intention to be a member of the system and
files a membership enrollment form as prescribed by the board of
trustees, and each person, upon filing his or her written notice to
participate in the retirement system, shall by that act authorize
the Clerk of the House of Delegates or the Clerk of the State
Senate or such person or legislative agency as the legislative body
of any other political subdivision shall designate to deduct the
member's contribution, as provided in subsection (b), section
twenty-nine of this article, and after the deductions have been made from the member's compensation, the deductions shall be
forwarded to the retirement system.
(d) If question arises regarding the membership status of any
employee, the board of trustees has the final power to decide the
question.
(e) Any individual who is a leased employee is not eligible to
participate in the system. For the purposes of this article, the
term "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. If a
question arises regarding the status of an individual as a leased
employee, the board has final authority to decide the question.
§5-10-21. Deferred retirement and early retirement.
(a) Any member who has five or more years of credited service
in force, of which at least three years are contributing service,
and who leaves the employ of a participating public employer prior
to his or her attaining age sixty years for any reason except his
or her disability retirement or death, shall be entitled to an
annuity computed according to section twenty-two of this article,
as that section was in force as of the date of his or her
separation from the employ of a participating public employer:
Provided, That he or she does not withdraw his or her accumulated
contributions from the members' deposit fund: Provided, however, That on and after the first day of July, two thousand two, any
person who becomes a new member of this retirement system shall, in
qualifying for retirement hereunder, have five or more years of
service, all of which years shall be actual, contributory ones.
His or her annuity shall begin the first day of the calendar month
next following the month in which his or her application for same
is filed with the board of trustees on or after his or her
attaining age sixty-two years.
(b) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has ten or
more years of credited service in force and who has attained age
fifty-five as of the date of his or her separation, may, prior to
the effective date of his or her retirement, but not thereafter,
elect to receive the actuarial equivalent of his or her deferred
retirement annuity as a reduced annuity commencing on the first day
of any calendar month between his or her date of separation and his
or her attainment of age sixty-two years and payable throughout his
or her life.
(c) Any member who qualifies for deferred retirement benefits
in accordance with subsection (a) of this section and has twenty or
more years of credited service in force may elect to receive the
actuarial equivalent of his or her deferred retirement annuity as
a reduced annuity commencing on the first day of any calendar month between his or her fifty-fifth birthday and his or her attainment
of age sixty-two years and payable throughout his or her life.
(d) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, and pursuant to rules promulgated
by the board, any member who has thirty or more years of credited
service in force, at least three of which are contributing service,
and who elects to take early retirement, which for the purposes of
this subsection means retirement prior to age sixty, whether an
active employee or a separated employee at the time of application,
shall be entitled to the full computation of annuity according to
section twenty-two of this article, as that section was in force as
of the date of retirement application, but with the reduced
actuarial equivalent of the annuity the member would have received
if his or her benefit had commenced at age sixty when he or she
would have been entitled to full computation of benefit without any
reduction.
(e) Notwithstanding any of the other provisions of this
section or of this article, except sections twenty-seven-a and
twenty-seven-b of this article, any member of the retirement system
may retire with full pension rights, without reduction of benefits,
if he or she is at least fifty-five years of age and the sum of his
or her age plus years of contributing service and limited credited
service, as defined in section two of this article, equals or exceeds eighty. The member's annuity shall begin the first day of
the calendar month next following the month in which his or her
application for the annuity is filed with the Board.
§5-10-22. Retirement annuity.
(a) Upon a member's retirement, as provided in this article,
he or she shall receive a straight life annuity equal to one and
five-tenths percent of his or her final average salary multiplied
by the number of years, and fraction of a year, of his or her
credited service in force at the time of his or her retirement:
Provided, That the final average salary used in this calculation
may not include any lump sum payment for unused, accrued leave of
any kind or character. The credited service used for this
calculation may not include any period of limited credited service:
Provided, however, That after March one, one thousand nine hundred
seventy, all members retired and all members retiring shall receive
a straight life annuity equal to two percent of his or her final
average salary multiplied by the number of years, and fraction of
a year, of his or her credited service, exclusive of limited
credited service in force at the time of his or her retirement. In
either event, upon his or her retirement he or she has the right to
elect an option provided for in section twenty-four of this
article. All annuity payments shall commence effective the first
day of the month following the month in which a member retires or
a member dies leaving a beneficiary entitled to benefits and shall continue to the end of the month in which the retirant or
beneficiary dies, and the annuity payments may not be prorated for
any portion of a month in which a member retires or retirant or
beneficiary dies. Any member receiving an annuity based in part
upon limited credited service is not eligible for the supplements
provided for in sections twenty-two-a through twenty-two-d,
inclusive, of this article.
(b) The annuity of any member of the Legislature who
participates in the retirement system as a member of the
Legislature and who retires under this article or of any former
member of the Legislature who has retired under this article
(including any former member of the Legislature who has retired
under this article and whose annuity was readjusted as of the first
day of March, one thousand nine hundred seventy, under the former
provisions of this section) shall be increased from time to time
during the period of his or her retirement when and if the
legislative compensation paid under section two, article two-a,
chapter four of this code, to a member of the Legislature shall be
increased to the point where a higher annuity would be payable to
the retirant if he or she were retiring as of the effective date of
the latest increase in such legislative compensation, but on the
basis of his or her years of credited service to the date of his or
her actual retirement.
§5-10-23. Terminal payment following retirement.
For the purposes of this section, the term "accumulated net
benefit" means the aggregate amount of all benefits paid to or on
behalf of a member. This includes, without limitation: (a)
Benefits paid to the member as an annuity; (b) any lump sum
distributions paid to the member or to any other person on account
of the member's rights to benefits from the plan; (c) survivor
benefits paid to any person or persons on account of the member's
rights to benefits from the plan; and (d) any other distributions
on account of the member's rights to benefits from the plan whether
they are paid in the nature of a refund of contributions, interest
on contributions, lump sum distributions, or annuity type benefits.
The amounts counted will be the amounts actually paid without
regard to any optional form of any annuity benefit.
For the purposes of this section, the term "accumulated
employee contributions" means all money the member has contributed
to the plan, whether the form of the contribution was after tax
deductions from wages, before tax deductions from wages, direct
remittance by the member to repay contributions and interest
previously distributed and direct remittance by the member to pay
imputed contributions for periods which were not subject to
contributions but may be counted for benefit purposes under the
plan. The term accumulated employee contributions does not include
any amount credited under the provisions of the plan as interest on
member contributions.
For the purposes of this section, the term "member's account"
means the excess of the accumulated employee contributions over the
accumulated net benefit payments at any point in time and the term
"member" includes retirant. (a) This section provides for the
payment of the balance in the a retired member's account in the
event that all claims to benefits payable to, or on behalf of, a
member expire before his or her member account has been fully
exhausted. The expiration of such rights to benefits would be on
the occasion of either the death of the retired member and any and
all beneficiaries who might have a claim to regular benefit
payments under the plan, for any form of benefit. Without
limitation, this would include the demise of beneficiaries of
survivor annuities and beneficiaries of any lump sum distributions
drawing benefits under a straight life annuity, or the death of a
survivor annuitant drawing benefits under any optional form of
benefit selected by the retired member, whichever occurs later.
(b) In the event that all claims to benefit benefits payable
to, or on behalf of, a retired member expire, and the accumulated
employee contributions exceed his or her the accumulated net
benefit payments paid to or on behalf of the retired member, the
balance in the retired member's account shall be paid to the person
or persons as the retired member has nominated by written
designation duly executed and filed with the board of trustees. If
there be no designated person or persons surviving the retired member following the expiration of claims, the excess of the
accumulated employee contributions over the accumulated net
benefit, if any, shall be paid to his or her the retired member's
estate. In no case may the plan retain any amount of the
accumulated employee contributions remaining in the member's
account, but it shall retain interest earned on the same
accumulated employee contributions in the instance of a member's or
beneficiary's post-retirement death. Provided, That the provisions
of this section are retroactive to all members who entered
retirement status on or after June 9, 2000.
§5-10-26. Reexamination of disability retirants; reemployment;
adjustment of annuity for earnings.
(a) At least once each year during the first five years
following the retirement of a member on account of disability, as
provided in section twenty-five hereof, and at least once in each
three-year period thereafter, the Board of trustees may, and upon
the retirant's application, shall require a disability retirant,
who has not attained age sixty years, to undergo a medical
examination to be made by or under the direction of a physician
designated by the board submit a statement signed by the disability
retirant's physician certifying continued disability and a copy of
the disability retirant's annual statement of earnings or other
financial information as required by the board from the previous
tax year. Should the said retirant refuse to submit to such medical examination in any such period the documentation, his or
her disability annuity may be discontinued by the Board until his
withdrawal of such refusal the Board receives the documentation.
Should such refusal continue for one year, all his the retirant's
rights in and to his the annuity may be revoked by the board. If,
upon such medical examination of a disability retirant, the said
physician reports to the board that the retirant is physically able
and capable of resuming employment with a participating public
employer, he the retirant shall be returned to the employ of the
participating public employer from whose employment he retired and
his disability annuity shall terminate: Provided, That the report
of the said physician is concurred in by the board the Board
concurs in the physician's report.
(b) A disability retirant who is returned to the employ of a
participating public employer shall again become a member of the
retirement system and his the retirant's credited service in force
at the time of his or her retirement shall be restored. to his
credit.
(c) If a disability retirant, who has not attained age sixty
years, becomes engaged in a gainful occupation, business or
employment, and the sum of his earnings from such occupation,
business or employment, and his disability annuity exceeds his
annual rate of compensation at the time of his retirement, his
disability annuity shall be reduced to an amount which when added to the amount so earned by him shall equal his said annual rate of
compensation. If his earnings are later changed, his disability
annuity shall be correspondingly adjusted. If a review of the
disability retirant's annual statement of earnings or other
financial information as required by the Board determines that the
disability retirant's earned income for the preceding year exceeds
the substantial gainful activity amount as defined by the United
States Social Security Administration, the disability retirant's
annuity shall be terminated by the Board, upon recommendation of
the Board disability review committee, on the first day of the
month following the Board's action. Any person who wishes to
reapply for disability retirement and whose disability retirement
annuity has been terminated by the Board may do so within ninety
days of the effective date of termination by requesting an
examination at the applicant's expense by an appropriate medical
professional chosen by the Board.
§5-10-27. Preretirement death annuities.
(a) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: may at any time
prior to the effective date of his or her retirement, by written
declaration duly executed and filed with the board of trustees, in
the same manner as if he or she were then retiring from the employ of a participating public employer, elect option A provided for in
section twenty-four of this article and nominate a beneficiary whom
the board finds to have had an insurable interest in the life of
the member. Prior to the effective date of his or her retirement,
a member may revoke his or her election of option A and nomination
of beneficiary and he or she may again prior to his or her
retirement elect option A and nominate a beneficiary as provided in
this subsection. Upon the death of a member who has an option A
election in force, his or her beneficiary, if living, shall
immediately receive an annuity computed in the same manner in all
respects as if the same member had retired the day preceding the
date of his or her death, notwithstanding that he or she might not
have attained age sixty years, and elected the said option A. If
at the time of his or her retirement a member has an option A
election in force, his or her election of option A and nomination
of beneficiary shall thereafter continue in force. (1) Dies
without leaving a surviving spouse; but (2) leaves surviving him or
her a child who is financially dependent on the member by virtue of
a permanent mental or physical disability upon evidence
satisfactory to the Board; and (3) has named the disabled child as
sole beneficiary, the disabled child shall immediately receive an
annuity computed in the same manner in all respects as if the said
member had: (1) Retired the day preceding the date of his or her
death, notwithstanding that he or she might not have attained age sixty or sixty-two years, as the case may be; (2) elected option A
provided for in section twenty-four of this article; and (3)
nominated his or her disabled child as beneficiary. As an
alternative to annuity option A, A member or former member with
ten or more years of credited service, who does not leave surviving
him or her a spouse or a disabled child, may elect to have the
preretirement death benefit paid as a return of accumulated
contributions in a lump sum amount to any beneficiary or
beneficiaries he or she chooses.
(b) In the event any member who has ten or more years of
credited service, or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies; and (2)
leaves a surviving spouse, the surviving spouse shall immediately
receive an annuity computed in the same manner in all respects as
if the said member had: (1) Retired the day preceding the date of
his or her death, notwithstanding that he or she might not have
attained age sixty or sixty-two years, as the case may be; (2)
elected option A provided for in section twenty-four of this
article; and (3) nominated his or her surviving spouse as
beneficiary. However, the surviving spouse shall have the right to
waive the annuity provided for in this section: Provided, That he
or she executes a valid and notarized waiver on a form provided by
the retirement Board and that the member or former member attests to the waiver. If the waiver is presented to and accepted by the
retirement Board, the member or former member, shall may nominate
a beneficiary who has an insurable interest in the member's or
former member's life upon evidence satisfactory to the Board, a
child who is financially dependent on the member by virtue of a
permanent mental or physical disability under annuity option A. As
an alternative to annuity option A, the member or former member may
elect to have the preretirement death benefit paid as a return of
accumulated contributions in a lump sum amount to any beneficiary
or beneficiaries he or she chooses in the event a waiver, as
provided for in this section, has been presented to and accepted by
the retirement Board.
(c) In the event any member who has ten or more years of
credited service or any former member with ten or more years of
credited service and who is entitled to a deferred annuity,
pursuant to section twenty-one of this article: (1) Dies without
leaving surviving him or her a spouse; but (2) leaves surviving him
or her an infant child or children; and (3) does not have a
beneficiary nominated as provided in subsection (a) of this
section, the infant child or children shall be entitled to an
annuity to be calculated as follows: The annuity reserve shall be
calculated as though the member had retired as of the date of his
or her decease and elected a straight life annuity and the amount
of the annuity reserve shall be paid in equal monthly installments to said member's infant child or children until the child or
children attain age twenty-one or sooner marry or become
emancipated; however, in no event shall any child or children
receive more than two hundred fifty dollars per month each. The
annuity payments shall be computed as of the date of the death of
the member and the amount of the annuity shall remain constant
during the period of payment. The annual amount of the annuities
payable by this section shall not exceed sixty percent of the
deceased member's final average salary.
(d) In the event any member or former member does not have ten
or more years of credited service, no preretirement death annuity
may be authorized, owed or awarded under this section.
§5-10-44. Correction of errors.
Should any change or employer error in the records of any
participating public employer or the retirement system result in
any person receiving from the system more or less than he would
have been entitled to receive had the records been correct, the
Board of trustees shall correct such the error, and as far as is
practicable shall adjust the payment of the benefit in such a
manner that the actuarial equivalent of the benefit to which such
the person was correctly entitled shall be paid. Any employer
error resulting in an underpayment to the retirement system may be
corrected by the employee remitting the required employee contribution and the participating public employer remitting the
required employer contribution. Interest shall accumulate in
accordance with the Legislative Rule 162 CSR 7 concerning
retirement board refund, reinstatement and loan interest factors,
and any accumulating interest owed on the employee and employer
contributions resulting from the employer error shall be the
responsibility of the participating public employer. The
participating public employer may remit total payment and the
employee reimburse the participating public employer through
payroll deduction over a period equivalent to the time period
during which the employer error occurred. The employee's share
remitted by the employer may not exceed two thousand dollars. The
public employer must submit proof that the employer error was not
willful, wanton or reckless.
NOTE: The purpose of this bill is to clarify the service
credit for certain Public Employee Retirement System employees, to
identify qualifying military service, to require an annual
physician's report and annual statement of earnings for certain
disability retirees, to restrict certain beneficiary options, to
provide that interest be included in terminal benefits payable to
retired participants, to alphabetize, amend and add certain
definitions, to clarify use of members' unused, accrued leave in
final average salary and to provide guidance on correcting employer
errors.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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