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Introduced Version Senate Bill 272 History

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sb272 intr
Senate Bill No. 272

(By Senator Foster)

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[Introduced February 24, 2005; referred to the Committee

on Pensions; and then to the Committee on Finance.]

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A BILL to amend and reenact §5-10A-2 and §5-10A-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §5-10A-11, all relating to amending the definitions of "less than honorable service" and "retirement plan"; increasing the time to issue notice to terminate benefits; and requiring prosecuting attorneys to notify retirement board of any convictions or pleas to less than honorable service.

Be it enacted by the Legislature of West Virginia:
That §5-10A-2 and §5-10A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §5-10A-11, all to read as follows:
10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.

As used in this article:

(a) "Retirement plan" or "plan" means the Public Employees Retirement Act, pursuant to article ten, chapter five of this code; each municipal employees retirement plan, pursuant to article twenty-two, chapter eight of this code; each policemen's and firemen's pension and relief fund, pursuant to article twenty-two, chapter eight of this code; the West Virginia State Police Death, Disability and Retirement Fund of the department of public safety, pursuant to article two, chapter fifteen of this code; the West Virginia State Police Retirement System, pursuant to article two-a, chapter fifteen of this code; the State Teachers Retirement System, pursuant to article seven-a, chapter eighteen of this code; the Teachers'
Defined Contribution Retirement System, pursuant to article seven-b, chapter eighteen of this code; the Deputy Sheriff Retirement System, pursuant to article fourteen-d, chapter seven of this code; supplemental and additional retirement plans, pursuant to section four-a, article twenty-three, chapter eighteen of this code; the Judges' Retirement System, pursuant to article nine, chapter fifty- one of this code; and any other plan established pursuant to this code for the payment of pension, annuity, disability or other benefits to any person by reason of his or her service as an officer or employee of this state or of any political subdivision, agency or instrumentality thereof, whenever such plan is supported in whole or in part by public funds. (b) "Beneficiary" means any person eligible for or receiving benefits on account of the service for a public employer by a participant in a retirement plan. (c) "Benefits" means pension, annuity, disability or any other benefits granted pursuant to a retirement plan. (d) "Conviction" means a conviction on or after the effective date of this article in any federal or state court of record whether following a plea of guilty, not guilty or nolo contendere, and whether or not the person convicted was serving as an officer or employee of a public employer at the time of the conviction. (e) "Less than honorable service" means:
(1) Impeachment and conviction of a participant under the provisions of section nine, article four of the constitution of West Virginia, except for a misdemeanor; or
(2) Conviction of a participant of a felony for conduct related to his or her office or employment which he committed while holding such the office or during such employment; or (3) Conduct of a participant which constitutes all of the elements of a crime described in either of the foregoing subdivisions (1) or (2) but for which the participant was not convicted because: (i) Having been indicted or having been charged in an information for such crime, he or she made a plea bargaining agreement pursuant to which he or she pleaded guilty to or nolo contendere to a lesser crime; or (ii) Having been indicted or having been charged in an information for such crime, he or she was granted immunity from prosecution for the same; or (iii) Having been named as an unindicted coconspirator in an indictment of another person for such a crime, which indictment resulted in the conviction of such other person, he or she was not prosecuted for such crime or conspiracy therefor. (f) "Participant" means any person eligible for or receiving any benefit under a retirement plan on account of his or her service as an officer or employee for a public employer. (g) "Public employer" means the State of West Virginia and any political subdivision, agency, or instrumentality thereof for which there is established a retirement plan.
(h) "Supervisory board" or "board" means the board of trustees of the West Virginia Public Employees Retirement System Consolidated Public Retirement Board; the board of trustees of any municipal retirement fund; the board of trustees of any policemen's or firemen's retirement plan; the retirement board of the Department of Public Safety; the state treasurer, state auditor and one other member of the board of public works so designated by the governor to sit on the supervisory board of the judges' retirement plan (who shall for the purpose of this article constitute the board); the designated members of the state teachers retirement system established pursuant to section five, article seven-a, chapter eighteen of this code; the governing board of any supplemental retirement plan instituted pursuant to authority granted by section four-a, article twenty-three, chapter eighteen of this code, and any other board, commission or public body having
the duty to supervise and operate any retirement plan

§5-10A-3. Notice of intention to terminate benefits; waiver;
failure to reply.

(a) Whenever a supervisory board, upon receipt of a verified complaint or otherwise, has reasonable cause to believe that a participant rendered less than honorable service as defined in section two of this article, it shall notify the affected participant or beneficiary that it believes that the participant rendered less than honorable service and that the participant or beneficiary is thereby ineligible to receive benefits. No supervisory board shall issue such notice:
(1) If more than one year has two years have elapsed since the judgment of conviction upon which such notice is based became final; or
(2) In the cases described in paragraph (3), subdivision subsection (e), section two of this article, if more than one year has two years have elapsed since, as the case may be: the plea bargaining agreement, the grant of immunity, or, in the event the participant was named as an unindicted coconspirator for a crime, the conviction of another person for such crime; or
(3) With respect to conduct which occurred prior to the effective date of this article.
(b) The notice shall contain a concise statement of the reasons why the Board believes that the participant rendered less than honorable service and shall be made either by personal service or by certified mail, return receipt requested, to the address which the participant or beneficiary maintains for purposes of corresponding with the Board. If notice is made by certified mail, service shall be deemed complete upon mailing and a completed receipt shall constitute proof of the receipt thereof. The notice shall inform the participant or beneficiary that he or she has the right to demand that the Board seek a determination in circuit court of his or her eligibility for benefits and membership in the retirement plan by notifying the Board of such demand within forty days. The notice shall also inform the participant or beneficiary that the Board will terminate the benefits in accordance with section four of this article and refund the participant's contributions with interest less benefits previously paid as provided in section six thereof if the participant or beneficiary either waives the right to demand that the Board take the matter before the circuit court or fails to respond to the Board's notice within forty days after service.
§5-10A-11. Notification from prosecuting attorneys.

The prosecuting attorneys of the counties of this state shall, within sixty days of a conviction or a plea agreement meeting the definition of less than honorable service, report the same to the executive director including with the report the indictment, plea agreement and any order finding the defendant guilty.


NOTE: The purpose of this bill is to amend the definition of less than honorable service, to amend a definition to clarify disqualification of benefits of members by adding the Teachers' Defined Contribution Retirement System and West Virginia State Police Retirement System to the definition of "retirement plan", to increase time to issue notice to terminate benefits, and to add a new section requiring prosecuting attorneys to notify retirement board of convictions or plea to less than honorable service.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§5-10A-11 is new; therefore, underscoring and strike-throughs have been omitted.







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