Senate Bill No. 103
(By Senators Jenkins, Plymale, Foster, Unger, Barnes and Hunter)
[Introduced February 9, 2005; referred to the Committee
on Pensions; and then to the Committee on Finance.]
A BILL to amend and reenact §5-10D-1 of the Code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new article, designated §16-5U-1, §16-5U-2, §16-5U-3,
§16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, §16-5U-8, §16-5U-9,
§16-5U-10, §16-5U-11, §16-5U-12, §16-5U-13, §16-5U-14,
§16-5U-15, §16-5U-16, §16-5U-17, §16-5U-18, §16-5U-19,
§16-5U-20, §16-5U-21, §16-5U-22, §16-5U-23, §16-5U-24,
§16-5U-25, §16-5U-26, §16-5U-27, §16-5U-28, §16-5U-29,
§16-5U-30, §16-5U-31, §16-5U-32, §16-5U-33 and §16-5U-34
relating to the Consolidated Public Retirement Board;
providing that the Board administer the Emergency Medical
Services Retirement System; reflecting the long-standing
fiduciary obligation of Consolidated Public Retirement Board
members to the plans they administer; clarifying the personal
liability of Board members to the retirement plans they
administer; clarifying that Board members shall discharge
their duties in accordance with the law; establishing the Emergency Medical Services Retirement System; setting forth
definitions; providing effective dates; establishing federal
qualification requirements; providing for liberal
construction; providing that plan is not a substitute for
social security; providing for and setting membership
standards; setting forth required contributions from members
and employers; creating fund and providing for investments;
providing for transfer from Public Employees Retirement
System; setting time limits; setting forth notice requirements
and requiring a test case; commencement of benefits; federal
law maximum benefit limitations and minimum required
distributions; direct rollovers; providing for retirement
credited through member's use of accrued annual or sick leave;
providing for retirement benefits; setting forth annuity
options; providing for refunds in certain circumstances;
deferred retirement; forfeitures; awards and benefits for
duty-related disability and for other causes; physical
examinations; termination of disability; prior disability;
awards and benefits to surviving spouse; additional death
benefits and scholarships for dependent children; burial
benefit; prohibiting double death benefits; loans to members;
exemption from taxation, garnishment and other process;
qualified domestic relation orders; fraud; criminal penalties;
repayment; treatment of prior military service; pro rata
reduction of annuities; effective date; starting date for
benefits; limitation of county liability; and providing for no forfeiture of benefits if system terminates.
Be it enacted by the Legislature of West Virginia:
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that said code be amended by adding
thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3,
§16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, §16-5U-8, §16-5U-9,
§16-5U-10, §16-5U-11, §16-5U-12, §16-5U-13, §16-5U-14, §16-5U-15,
§16-5U-16, §16-5U-17, §16-5U-18, §16-5U-19, §16-5U-20, §16-5U-21,
§16-5U-22, §16-5U-23, §16-5U-24, §16-5U-25, §16-5U-26, §16-5U-27,
§16-5U-28, §16-5U-29, §16-5U-30, §16-5U-31, §16-5U-32, §16-5U-33
all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD
OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS,
OFFICES, PROGRAMS, ETC.
ARTICLE 10D. CONSOLIDATED PUBLIC RETIREMENT BOARD.
§5-10D-1. Consolidated Public Retirement Board continued; members;
vacancies; investment of plan funds.
(a) The Consolidated Public Retirement Board is continued to
administer all public retirement plans in this State. It shall
administer the public employees retirement system established in
article ten of this chapter; the teachers retirement system
established in article seven-a, chapter eighteen of this code; the
teachers' defined contribution retirement system created by article
seven-b of said chapter; the West Virginia State Police Death,
Disability and Retirement Fund created by article two, chapter fifteen of this code; the West Virginia State Police retirement
system created by article two-a of said chapter; the death,
disability and retirement fund for deputy sheriffs created by
article fourteen-d, chapter seven of this code;
retirement system created under article nine, chapter fifty-one of
the death, disability and retirement fund for deputy
sheriffs established in article fourteen-d, chapter seven of this
code; and the emergency medical services retirement system
established in article five-u, chapter sixteen of this code. The
Board is created as a public body corporate and is established to
provide prudent fiscal administration and management of the
foregoing retirement systems.
(b) Each member of the Board owes a fiduciary obligation to
each of the retirement systems administered by the Board and to
each of the members of those retirement systems, whether the member
be retired or active. Members and employees of the Board are not
liable personally, either jointly or severally, for any debt or
obligation created by the Board:á Provided, That board members are
personally liable for ultra vires acts, acts of malfeasance, acts
in violation of the laws creating the various retirement systems or
for gross negligence.
(b) (c) The membership of the Consolidated Public Retirement
Board consists of:
(1) The Governor or his or her designee;
(2) The State Treasurer or his or her designee;
(3) The State Auditor or his or her designee;
(4) The Commissioner of the employee and insurance services
Division of the Department of Administration;
(5) Four residents of the State, who are not members,
retirants or beneficiaries of any of the public retirement systems,
to be appointed by the Governor, with the advice and consent of the
(6) A member, annuitant or retirant of the public employees
retirement system who is or was a state employee; a member,
annuitant or retirant of the public employees retirement system who
is not or was not a state employee; a member, annuitant or retirant
of the teachers retirement system; a member, annuitant or retirant
of the West Virginia State Police death, disability and retirement
fund; a member, annuitant or retirant of the deputy sheriff's
death, disability and retirement fund; and a member, annuitant or
retirant of the teachers' defined contribution retirement system,
all to be appointed by the Governor, with the advice and consent of
(c) (d) The appointed members of the Board shall serve
five-year terms. A member appointed pursuant to subdivision (6),
subsection (b) of this section ceases to be a member of the board
if he or she ceases to be a member of the represented system. If
a vacancy occurs in the appointed membership, the Governor, within
sixty days, shall fill the vacancy by appointment for the unexpired
term. No more than five appointees shall be of the same political
(d) (e) The Consolidated Public Retirement Board has all the powers, duties, responsibilities and liabilities of the public
employees retirement system established pursuant to article ten of
this chapter; the teachers retirement system established pursuant
to article seven-a, chapter eighteen of this code; the teachers'
defined contribution system established pursuant to article seven-b
of said chapter eighteen of this code; the West Virginia State
Police Death, Disability and Retirement Fund created pursuant to
article two, chapter fifteen of this code; the death, disability
and retirement fund for deputy sheriffs created pursuant to article
fourteen-d, chapter seven of this code; and the judges' retirement
system created pursuant to article nine, chapter fifty-one of this
code and their appropriate governing boards. The consolidated
public retirement board may propose for promulgation all rules
necessary to effectuate its powers, duties and responsibilities
pursuant to article three, chapter twenty-nine-a of this code:
Provided, That the Board may adopt any or all of the rules,
previously promulgated, of a retirement system which it
(e) (f) The Consolidated Public Retirement Board shall
continue to transfer all funds received for the benefit of the
retirement systems within the consolidated pension plan as defined
in section three-c, article six-b, chapter forty-four of this code,
including, but not limited to, all employer and employee
contributions, to the West Virginia Investment Management Board:
Provided, That the employer and employee contributions of the
teachers' defined contribution system, established in section three, article seven-b, chapter eighteen of this code, and
voluntary deferred compensation funds invested by the West Virginia
Consolidated Public Retirement Board pursuant to section five,
article ten-b of this chapter may not be transferred to the West
Virginia Investment Management Board.
(f) (g) Notwithstanding any provision of this code or any
legislative rule to the contrary, all assets of the public
retirement plans set forth in subsection (a) of this section shall
be held in trust. The Consolidated Public Retirement Board shall
be a trustee for all public retirement plans, except with regard to
the investment of funds: Provided, That the Consolidated Public
Retirement Board shall be a trustee with regard to the investments
of the teachers' defined contribution system, the voluntary
deferred compensation funds invested pursuant to section five,
article ten-b of this chapter and any other assets of the public
retirement plans administered by the Consolidated Public Retirement
Board as set forth in subsection (a) of this section for which no
trustee has been expressly designated in this code.
(g) (h) The Board may employ the West Virginia Investment
Management Board to provide investment management consulting
services for the investment of funds in the teachers' defined
(i) Board members shall discharge their duties in accordance
with the laws, documents and instruments governing the retirement
systems under their management, and shall discharge their duties
with respect to the 401(a) plans for the exclusive purpose of providing benefits to participants and their beneficiaries.
(j) The changes made to this section in the two thousand five
regular session of the Legislature are remedial in nature and
merely constitute codification of existing case law and practices.
Accordingly, these changes may be applied by a court in any lawsuit
or action brought after the thirty-first day of December, two
thousand five, regardless of when the act complained of occurred.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5U.á EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.
This article is known and may be cited as the "West Virginia
Emergency Medical Services Retirement System Act."
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 twenty years of credited service. Additionally, two
percent per year for twenty-one through twenty-five years and one
percent for twenty-six through thirty years will be credited with
a maximum of sixty-seven percent. Member's accrued benefit may not
exceed the limits of Section 415 of the Internal Revenue Code and
is subject to the provisions of section nine-a of this article.
(1) The Board may increase the employees contribution to ten
and five-tenths percent should the funding of the plan not reach
seventy percent funded by the first day of July, two thousand ten. The Board shall decrease the contribution rate to eight and
one-half percent once the plan funding reaches the seventy percent
support objective as of any latter actuarial valuation date.
(2) Upon reaching the seventy-five percent actuarial funded
level, as of an actuarial valuation date, the Board shall increase
the two and six-tenths percent to two and three-quarter percent for
the first twenty years of service. The maximum benefit will also
be increased from sixty-seven percent to seventy percent.
(b) "Accumulated contributions" means the sum of all amounts
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 active duty with
any branch of the armed forces of the United States, including
service with the national guard or reserve military forces when the
member has been called to active full-time duty 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 upon the basis of the mortality table and interest rates
as set and adopted by the Retirement Board in accordance with the
provisions of this article.
(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 upon 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
one hundred thousand dollars as adjusted for cost-of-living in
accordance with Section 401(a)(17)(B) of the Internal Revenue Code.
(f) "Annual leave service" means accrued annual leave.
(g) "Annuity starting date" means the first day of the first
period for which an amount is received as an annuity by reason of
retirement.á For purposes of this subsection, if retirement income
payments commence after the normal retirement age, "retirement"
means the later of the last day the member worked in covered
employment and the normal retirement age.
(h) "Board" means the Consolidated Public Retirement Board.
(i) "County commission or political subdivision" has the
meaning ascribed to it in this code.
(j) "Covered employment" means either: (1) Employment as an
emergency medical technician, emergency medical technician/
paramedic or emergency medical services/registered nurse and the
active performance of the duties required of emergency medical
services officers; or (2) the period of time which active duties
are not performed but disability benefits are received under this
article; or (3) concurrent employment by an emergency services
officer in a job or jobs in addition to his or her employment as an emergency services officer where such secondary employment requires
the emergency medical services officer to be a member of another
retirement system which is administered by the Consolidated Public
Retirement Board pursuant to this code: Provided
, That the
emergency medical services officer contribute to the Fund created
in this article the amount specified as an emergency medical
services officer by this article.
(k) "Credited service," means the sum of a member's years of
service, active military duty, disability service and annual leave
(l) "Emergency medical services officer" means an individual
employed by the State, county or other political subdivision as a
medical professional that is qualified to respond to medical
emergencies, aids the sick and injured and arranges or transports
to medical facilities, as defined by the West Virginia Office of
Emergency Medical Services. This definition is construed to
include ambulance providers and other services such as law
enforcement, rescue, or fire department personnel who primarily
perform these functions and are not provided any other credited
service benefits or retirement plans. These persons may hold the
rank of emergency medical technician/basic, emergency medical
technician/paramedic, emergency medical services/registered nurse,
or others as defined by the West Virginia Office of Emergency
Medical Services and the Consolidated Public Retirement Board.
(m) "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 twenty-three:
(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 member's death; and
(C) Whose relationship with the member is described in
subparagraph (A), (B) or (C), paragraph (1) of this subsection.
(n) "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.
(o) "Disability service" means service 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.
(p) "Effective date" means the first day of July, two thousand
(q) "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 ten 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 salary determined paid to the member during that period
as determined under section seventeen of this article multiplied by
(r) "Fund" means the West Virginia Emergency Medical Services
Retirement Fund created by this article.
(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
paragraph shall be calculated and credited pursuant to West
Virginia Division of Labor Rules. A member will not be credited
with any hours of service for any period of time he or she is
receiving benefits under section fourteen or fifteen of this
(3) Each hour for which back pay is either awarded or agreed
to be paid by the employing county commission, irrespective of
mitigation of damages. The same hours of service shall not be
credited both under paragraph (1) or (2) of this subdivision and
under this paragraph. 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.
(t) "Member" means a person first hired as an emergency
medical services officer after the effective date of this article,
as defined in subsection (r) of this section, or an emergency
medical services officer first hired prior to the effective date
and who elects to become a member pursuant to this article. A
member shall remain a member until the benefits to which he or she
is entitled under this article are paid or forfeited.
(u) "Monthly salary" means the portion of a member's annual
compensation, which is paid to him or her per month.
(v) "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.
(w) "Normal retirement age" means the first to occur of the following:
(1) Attainment of age fifty years and the completion of twenty
or more years of regular service, excluding active military duty,
disability service and annual leave service.
(2) While still in covered employment, attainment of at least
age fifty years and when the sum of current age plus years of
service equals or exceeds seventy years;
(3) While still in covered employment, attainment of at least
age sixty years and completion of ten years of service; or
(4) Attainment of age sixty-two years and completion of five
or more years of service.
(x) "Partially disabled" means a member's inability to engage
in the duties of an emergency medical services officer by reason of
any medically determinable 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 twelve
months. A member may be determined partially disabled for the
purposes of this article and maintain the ability to engage in
other gainful employment which exists within the State but which
ability would not enable him or her to earn an amount at least
equal to two thirds of the average annual compensation earned by
all active members of this plan during the plan year ending as of
the most recent thirtieth day of June, as of which plan data has
been assembled and used for the actuarial valuation of the plan.
The Board may require submission of a member's annual tax return
for purposes of monitoring the earnings limitation.
(y) "Public Employees Retirement System" means the West
Virginia Public Employee's Retirement System created by West
(z) "Plan" means the West Virginia Emergency Medical Services
Death, Disability and Retirement Plan established by this article.
(aa) "Plan year" means the twelve-month period commencing on
the first day of July of any designated year and ending the
following thirtieth day of June.
(bb) "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.
(cc) "Retirement income payments" means the annual retirement
income payments payable under the plan.
(dd) "Spouse" means the person to whom the member is legally
married on the annuity starting date.
(ee) "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.
(ff) "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 twelve months.
For purposes of this subdivision:
(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 an emergency
medical services officer 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. Substantial gainful
employment is defined as an excess of one third of the average
(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
(gg) "Year of service" means a member shall, except in his or
her first and last years of covered employment, be credited with
year of service credit based upon the hours of service performed as
covered employment and credited to the member during the plan year
based upon the following schedule:
Hours of Service Year of Service Credited