Introduced Version
Senate Bill 15 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 15
(By Senator Green)
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[Introduced February 13, 2013; referred to the Committee on
Pensions; and then to the Committee on Finance.]
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A BILL to amend and reenact §5-10-48 of the Code of West Virginia,
1931, as amended, relating to reemployment after retirement
from the Public Employees Retirement System; and requiring
cooperation and information sharing among the State Auditor,
the Consolidated Public Retirement Board, the State Department
of Administration, employers participating in the Public
Employees Retirement System and contractors providing services
to the state
.
Be it enacted by the Legislature of West Virginia:
That §5-10-48 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 10. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT ACT.
§5-10-48. Reemployment after retirement; options for holder of elected public office.
(a) The Legislature finds that a compelling state interest
exists in maintaining an actuarially sound retirement system and
that this interest necessitates that certain limitations be placed
upon an individual's ability to retire from the system and to then
later return to state employment as an employee with a
participating public employer while contemporaneously drawing an
annuity from the system. The Legislature hereby further finds and
declares that the interests of the public are served when persons
having retired from public employment are permitted, within certain
limitations, to render post-retirement employment in positions of
public service, either in elected or appointed capacities. The
Legislature further finds and declares that it has the need for
qualified employees and that in many cases an employee of the
Legislature will retire and be available to return to work for the
Legislature as a per diem employee. The Legislature further finds
and declares that in many instances these employees have
particularly valuable expertise which the Legislature cannot find
elsewhere. The Legislature further finds and declares that
reemploying these persons on a limited per diem basis after they
have retired is not only in the best interests of this state, but
has no adverse effect whatsoever upon the actuarial soundness of
this particular retirement system.
(b) For the purposes of this section: (1) ôRegularly employed
on a full-time basisö means employment of an individual by a
participating public employer, in a position other than as an
elected or appointed public official, which normally requires
twelve months per year service and at least one thousand forty
hours of service per year in that position; (2) ôtemporary
full-time employment or temporary part-time employmentö means
employment of an individual on a temporary or provisional basis by
a participating public employer, other than as an elected or
appointed public official, in a position which does not otherwise
render the individual as regularly employed; (3) ôformer employee
of the Legislatureö means any person who has retired from
employment with the Legislature and who has at least ten years'
contributing service with the Legislature; and (4) ôreemployed by
the Legislatureö means a former employee of the Legislature who has
been reemployed on a per diem basis not to exceed one hundred
seventy-five days per calendar year.
(c) In the event a retirant becomes regularly employed on a
full-time basis by a participating public employer, payment of his
or her annuity shall be suspended during the period of his or her
reemployment and he or she shall become a contributing member to
the retirement system. If his or her reemployment is for a period
of one year or longer, his or her annuity shall be recalculated and he or she shall be granted an increased annuity due to the
additional employment, the annuity to be computed according to
section twenty-two of this article. A retirant may accept
temporary full-time or temporary part-time employment from a
participating employer without suspending his or her retirement
annuity so long as he or she does not receive annual compensation
in excess of $15,000: Provided, That a retirant may be employed by
the Legislature on a per diem basis without suspension of the
retirement annuity if the retirant's annual compensation from the
Legislature does not exceed $20,000.
(d) In the event a member retires and is then subsequently
elected to a public office or is subsequently appointed to hold an
elected public office, or is a former employee of the Legislature
who has been reemployed by the Legislature, he or she has the
option, notwithstanding subsection (c) of this section, to either:
(1) Continue to receive payment of his or her annuity while
holding public office or during any reemployment of a former
employee of the Legislature on a per diem basis, in addition to the
salary he or she may be entitled to as an office holder or as a per
diem reemployed former employee of the Legislature; or
(2) Suspend the payment of his or her annuity and become a
contributing member of the retirement system as provided in
subsection (c) of this section. Notwithstanding the provisions of this subsection, a member who is participating in the system as an
elected public official may not retire from his or her elected
position and commence to receive an annuity from the system and
then be elected or reappointed to the same position unless and
until a continuous twelve-month period has passed since his or her
retirement from the position: Provided, That a former employee of
the Legislature may not be reemployed by the Legislature on a per
diem basis until at least sixty days after the employee has
retired: Provided, however, That the limitation on compensation
provided by subsection (c) of this section does not apply to the
reemployed former employee: Provided further, That in no event may
reemployment by the Legislature of a per diem employee exceed one
hundred seventy-five days per calendar year.
(e) A member who is participating in the system simultaneously
as both a regular, full-time employee of a participating public
employer and as an elected or appointed member of the legislative
body of the state or any political subdivision may, upon meeting
the age and service requirements of this article, elect to retire
from his or her regular full-time state employment and may commence
to receive an annuity from the system without terminating his or
her position as a member of the legislative body of the state or
political subdivision: Provided, That the retired member shall
not, during the term of his or her retirement and continued service as a member of the legislative body of a political subdivision, be
eligible to continue his or her participation as a contributing
member of the system and shall not continue to accrue any
additional service credit or benefits in the system related to the
continued service.
(f) Notwithstanding the provisions of section twenty-seven-b
of this article, any publicly elected member of the legislative
body of any political subdivision or of the State Legislature, the
clerk of the House of Delegates and the clerk of the Senate may
elect to commence receiving in-service retirement distributions
from this system upon attaining the age of seventy and one-half
years: Provided, That the member is eligible to retire under the
provisions of section twenty or twenty-one of this article:
Provided, however, That the member elects to stop actively
contributing to the system while receiving the in-service
distributions.
(g) The provisions of section twenty-two-h of this article are
not applicable to the amendments made to this section during the
2006 Regular Session.
(h) (1) The Legislature finds that currently there are
insufficient provisions to assure compliance with requirements of
subsection (c) of this section. The Legislature further finds that
cooperation among the State Auditor, The Consolidated Public Retirement Board, participating public employers and contractors
providing services to the participating public employers is
required to facilitate compliance.
____(2) The State Auditor shall match information in its database
with information in the databases of the Consolidated Public
Retirement Board, the state's Department of Administration and
participating public employers to identify all those retirants of
the Public Employees Retirement System who are receiving an annuity
while at the same time receiving any payment from a participating
public employer, whether as an employee, contractor or person doing
work directly for the participating public employer as an employee
of a contractor. If payment is made to a corporation, partnership,
or entity by which an individual is "doing business as" a name
other than the proprietor, the State Auditor shall seek information
sufficient to determine the amount of any of the payments inuring
to the benefit of any retirant directly serving the participating
public employer. Upon reasonable belief that a retirant is in
violation of subsection (c) of this section, the State Auditor
shall notify the retirement board. The State Auditor shall also
notify the retirement board upon reasonable belief that a retirant
providing services to a participating public employer under a
contract should be classified as an employee. If the retirement
board has reasonable belief that the retirant providing services under a contract is in violation of subsection (c) of this section,
the retirement board shall notify the retirant and, if the retirant
does not agree to employee status, the retirement board shall
promptly request a determination of employee or contractor status
from the United States Internal Revenue Service.
____(3) The retirement board and participating public employers
shall cooperate fully with the State Auditor to assist the State
Auditor in gathering the information as required in this subsection
and to permit the State Auditor to fully comply with the provisions
limiting post-retirement earnings as set forth in this section.
Issuance of IRS Form 1099 is not conclusive evidence that the
receiver of payment is a contractor and not an employee.
____(4) As a condition of a contract, any contractor providing
services to a participating public employer shall provide to the
employer the name and social security number of each person
performing work under the contract who is a retirant of the Public
Employees Retirement System, the amount paid to the retirant and
the retirant's complete job description.
____(5) Except as relates to former employees of the Legislature
reemployed by the Legislature, the State Auditor shall make
available to the public information on those retirants who are
regularly employed on a full-time basis by a participating public
employer, or who are receiving payments from a participating public employer under other circumstances mentioned in this subsection or
subsection (c) of this section. The information provided shall
include the name of the retirant, the amount of money paid to the
retirant, the entity making the payment, a general description of
services rendered in exchange for the payment and the time for
which payment was made.
NOTE: The purpose of this bill is to facilitate assurance of
compliance with statutory requirements which, under certain
circumstances, limit earnings of a retiree in post-retirement
employment. The bill requires cooperation and information sharing
among the State Auditor, The Consolidated Public Retirement Board,
the State Department of Administration, employers participating in
the Public Employees Retirement System and contractors providing
services to the state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.