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Senate Bill No. 469
(By Senators Jenkins, Kessler (Mr. President), Chafin, McCabe and
Plymale)
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[Introduced March 6, 2013; referred to the Committee on Pensions;
and then to the Committee on Finance .]
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A BILL to amend and reenact §5-10-14 and §5-10-18 of the Code of
West Virginia, 1931, as amended, all relating to service
credit; retroactive service credit; and reinstatement interest
in the Public Employees Retirement System.
Be it enacted by the Legislature of West Virginia:
That §5-10-14 and §5-10-18 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.
§5-10-14. Service credit; retroactive provisions.
(a) The Board of Trustees shall credit each member with the
prior service and contributing service to which he or she is
entitled based upon rules adopted by the board of trustees and
based upon the following:
(1) In no event may less than ten days of service rendered by a member in any calendar month be credited as a month of service:
Provided, That for employees of the State 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 so employed during regular sessions or during
the interim between regular sessions in seven consecutive calendar
years, service credit of one month shall be awarded for each ten
days employed in the interim between regular sessions, which
interim days shall be cumulatively calculated so that any ten days,
regardless of calendar month or year, shall be calculated toward
any award of one month of service credit;
(2) Except for hourly employees, ten or more months of service
credit earned in any calendar year shall be credited as a year of
service: Provided, That no more than one year of service may be
credited to any member for all service rendered by him or her in
any calendar year and no days may be carried over by a member from
one calendar year to another calendar year where the member has
received a full-year credit for that year; and
(3) Service may be credited to a member who was employed by a
political subdivision if his or her employment occurred within a
period of thirty years immediately preceding the date the political
subdivision became a participating public employer.
(b) The Board of Trustees shall grant service credit to employees of boards of health, the Clerk of the House of Delegates
and the Clerk of the State Senate or to any former and present
member of the State Teachers Retirement System who have been
contributing members in the Public Employees Retirement System for
more than three years, for service previously credited by the State
Teachers Retirement System and shall require the transfer of the
member's accumulated contributions to the system and shall also
require a deposit, with reinstatement interest as set forth in 162
CSR 7-4, of any withdrawals of contributions any time prior to the
member's retirement. Repayment of withdrawals shall be as directed
by the Board of Trustees.
(c) Court reporters who are acting in an official capacity,
although paid by funds other than the county commission or State
Auditor, may receive prior service credit for time served in that
capacity.
(d) Active members who previously worked in CETA
(Comprehensive Employment and Training Act) may receive service
credit for time served in that capacity: Provided, That in order to
receive service credit under the provisions of this subsection the
following conditions must be met: (1) The member must have moved
from temporary employment with the participating employer to
permanent full-time employment with the participating employer
within one hundred twenty days following the termination of the
member's CETA employment; (2) the board must receive evidence that establishes to a reasonable degree of certainty as determined by
the board that the member previously worked in CETA; and (3) the
member shall pay to the board an amount equal to the employer and
employee contribution plus interest at the amount set by the board
for the amount of service credit sought pursuant to this
subsection: Provided, however, That the maximum service credit that
may be obtained under the provisions of this subsection is two
years: Provided further, That a member must apply and pay for the
service credit allowed under this subsection and provide all
necessary documentation by March 31, 2003: And provided further,
That the board shall exercise due diligence to notify affected
employees of the provisions of this subsection.
(e)(1) Employees of the State Legislature whose terms of
employment are otherwise classified as temporary and who are
employed to perform services required by the Legislature for its
regular sessions or during the interim time between regular
sessions shall receive service credit for the time served in that
capacity in accordance with the following. For purposes of this
section, the term "regular session" means day one through day sixty
of a sixty-day legislative session or day one through day thirty of
a thirty-day legislative session. Employees of the State
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 time between regular sessions and who have been or are employed during
regular sessions or during the interim time between regular
sessions in seven consecutive calendar years, as certified by the
clerk of the house in which the employee served, shall receive
service credit of six months for all regular sessions served, as
certified by the clerk of the house in which the employee served,
or shall receive service credit of three months for each regular
thirty-day session served prior to 1971: Provided, That employees
of the State 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 and who have
been or are employed during the regular sessions in thirteen
consecutive calendar years as either temporary employees or full-
time employees or a combination thereof, as certified by the clerk
of the house in which the employee served, shall receive a service
credit of twelve months for each regular session served, as
certified by the clerk of the house in which the employee served:
Provided, however, That the amendments made to this subsection
during the 2002 regular session of the Legislature only apply to
employees of the Legislature who are employed by the Legislature as
either temporary employees or full-time employees as of January 1,
2002, or who become employed by the Legislature as temporary or
full-time employees for the first time after January 1, 2002.
Employees of the State Legislature whose terms of employment are otherwise classified as temporary and who are employed to perform
services required by the Legislature during the interim time
between regular sessions shall receive service credit of one month
for each ten days served during the interim between regular
sessions, which interim days shall be cumulatively calculated so
that any ten days, regardless of calendar month or year, shall be
calculated toward any award of one month of service credit:
Provided further, That no more than one year of service may be
credited to any temporary legislative employee for all service
rendered by that employee in any calendar year and no days may be
carried over by a temporary legislative employee from one calendar
year to another calendar year where the member has received a full
year credit for that year. Service credit awarded for legislative
employment pursuant to this section shall be used for the purpose
of calculating that member's retirement annuity, pursuant to
section twenty-two of this article, and determining eligibility as
it relates to credited service, notwithstanding any other provision
of this section. Certification of employment for a complete
legislative session and for interim days shall be determined by the
clerk of the house in which the employee served, based upon
employment records. Service of fifty-five days of a regular session
constitutes an absolute presumption of service for a complete
legislative session and service of twenty-seven days of a thirty-
day regular session occurring prior to 1971 constitutes an absolute presumption of service for a complete legislative session. Once a
legislative employee has been employed during regular sessions for
seven consecutive years or has become a full-time employee of the
Legislature, that employee shall receive the service credit
provided in this section for all regular and interim sessions and
interim days worked by that employee, as certified by the clerk of
the house in which the employee served, regardless of when the
session or interim legislative employment occurred: And provided
further, That regular session legislative employment for seven
consecutive years may be served in either or both houses of the
Legislature.
(2) For purposes of this section, employees of the Joint
Committee on Government and Finance are entitled to the same
benefits as employees of the House of Delegates or the Senate:
Provided, That for joint committee employees whose terms of
employment are otherwise classified as temporary, employment in
preparation for regular sessions, certified by the legislative
manager as required by the Legislature for its regular sessions,
shall be considered the same as employment during regular sessions
to meet service credit requirements for sessions served.
(f) Any employee may purchase retroactive service credit for
periods of employment in which contributions were not deducted from
the employee's pay. In the purchase of service credit for
employment prior to the year 1989 in any department, including the Legislature, which operated from the General Revenue Fund and which
was not expressly excluded from budget appropriations in which
blanket appropriations were made for the state's share of public
employees' retirement coverage in the years prior to the year 1989,
the employee shall pay the employee's share. Other employees shall
pay the state's share and the employee's share to purchase
retroactive service credit. Where an employee purchases service
credit for employment which occurred after the year 1988, that
employee shall pay for the employee's share and the employer shall
pay its share for the purchase of retroactive service credit:
Provided, That no legislative employee and no current or former
member of the Legislature may be required to pay any interest or
penalty upon the purchase of retroactive service credit in
accordance with the provisions of this section where the employee
was not eligible to become a member during the years for which he
or she is purchasing retroactive credit or had the employee
attempted to contribute to the system during the years for which he
or she is purchasing retroactive service credit and such
contributions would have been refused by the board: Provided,
however, That a current legislative employee purchasing retroactive
credit under this section does so within twenty-four months of
becoming a member of beginning contributions to the retirement
system or no later than December 31, 2008 2013, whichever occurs
last: Provided further, That once a legislative employee becomes a member of the retirement system, he or she may purchase retroactive
service credit for any time he or she was employed by the
Legislature and did not receive service credit. Any service credit
purchased shall be credited as six months for each sixty-day
session worked, three months for each thirty-day session worked or
twelve months for each sixty-day session for legislative employees
who have been employed during regular sessions in thirteen
consecutive calendar years, as certified by the clerk of the house
in which the employee served, and credit for interim employment as
provided in this subsection: And provided further, That this
legislative service credit shall also be used for months of service
in order to meet the sixty-month requirement for the payments of a
temporary legislative employee member's retirement annuity: And
provided further, That no legislative employee may be required to
pay for any service credit beyond the actual time he or she worked
regardless of the service credit which is credited to him or her
pursuant to this section: And provided further, That any
legislative employee may request a recalculation of his or her
credited service to comply with the provisions of this section at
any time.
(g)(1) Notwithstanding any provision to the contrary, the
seven consecutive calendar years requirement and the thirteen
consecutive calendar years requirement and the service credit
requirements set forth in this section shall be applied retroactively to all periods of legislative employment prior to the
passage of this section, including any periods of legislative
employment occurring before the seven consecutive and thirteen
consecutive calendar years referenced in this section: Provided,
That the employee has not retired prior to the effective date of
the amendments made to this section in the 2002 regular session of
the Legislature.
(2) The requirement of seven consecutive years and the
requirement of thirteen consecutive years apply retroactively to
all legislative employment prior to the effective date of the 2006
amendments to this section.
(h) The Board of Trustees shall grant service credit to any
former or present member of the State Police Death, Disability and
Retirement Fund who has been a contributing member of this system
for more than three years for service previously credited by the
State Police Death, Disability and Retirement Fund if the member
transfers all of his or her contributions to from the State Police
Death, Disability and Retirement Fund to the system created in this
article, including repayment of any amounts withdrawn any time from
the State Police Death, Disability and Retirement Fund by the
member seeking the transfer allowed in this subsection: Provided,
That there shall be added by the member to the amounts transferred
or repaid under this subsection an amount which shall be sufficient
to equal the contributions he or she would have made had the member been under the Public Employees Retirement System during the period
of his or her membership in the State Police Death, Disability and
Retirement Fund, excluding contributions on lump sum payment for
annual leave, plus interest at a rate determined by the board.
(i) 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.
§5-10-18. Termination of membership; reentry.
(a) When a member of the retirement system retires, withdraws
his or her accumulated contributions, or dies, he or she ceases to
be a member. When a member leaves the employ of a participating
public employer for any reason other than retirement or death, and
withdraws his or her accumulated contributions from the system, he
or she ceases to be a member and forfeits service credited to him
or her at that time. If he or she becomes reemployed by a
participating public employer he or she shall be reinstated as a
member of the retirement system and his or her credited service
last forfeited by him or her shall be restored to his or her
credit: Provided, That he or she must be reemployed for a period of
one year or longer to have the service restored: Provided, however,
That he or she returns to the members' deposit fund the amount, if
any, he or she withdrew from the fund, together with regular
reinstatement interest as set forth in 162 CSR 7-4 on the withdrawn
amount from the date of withdrawal to the date of repayment, and that the repayment begins within two years of the return to
employment and that the full amount is repaid within five years of
the return to employment. Any failure to repay the full amount in
accordance with this section shall be treated as an overpayment or
excess contribution subject to section forty-four of this article.
(b) The Prestera Center for Mental Health Services, Valley
Comprehensive Mental Health Center, Westbrook Health Services and
Eastern Panhandle Mental Health Center, and their successors in
interest, shall provide for their employees a pension plan in lieu
of the Public Employees Retirement System during the existence of
the named mental health centers and their successors in interest.
(c) The administrative bodies of the Prestera Center for
Mental Health Services, Valley Comprehensive Mental Health Center,
Westbrook Health Services and Eastern Panhandle Mental Health
Center shall, on or before May 1, 1997, give written notice to each
employee who is a member of the Public Employees Retirement System
of the option to withdraw from or remain in the system. The notice
shall include a copy of this section and a statement explaining the
member's options regarding membership. The notice shall include a
statement in plain language giving a full explanation and actuarial
projection figures in support of the explanation regarding the
individual member's current account balance, vested and nonvested,
and his or her projected return upon remaining in the Public
Employees Retirement System until retirement, disability or death, in comparison with the projected return upon withdrawing from the
Public Employees Retirement System and joining a private pension
plan provided by the Community Mental Health Center and remaining
therein until retirement, disability or death. The administrative
bodies shall keep in their respective records a permanent record of
each employee's signature confirming receipt of the notice.
(d) Effective March 1, 2003, and ending December 31, 2004, any
member may purchase credited service previously forfeited by him or
her and the credited service shall be restored to his or her
credit: Provided, That he or she returns to the members' deposit
fund the amount, if any, he or she withdrew from the fund, together
with interest on the withdrawn amount from the date of withdrawal
to the date of repayment at a rate to be determined by the board.
The repayment under this section may be made by lump sum or repaid
over a period of time not to exceed sixty months. Where the member
elects to repay the required amount other than by lump sum, the
member is required to pay interest at the rate determined by the
board until all sums are fully repaid.
(e) Effective July 1,2005, and ending December 31, 2006, any
emergency services personnel may purchase service credit for the
time period beginning January 1, 1990, and ending December 31,
1995: Provided, That the person was employed as an emergency
service person in this state for that time period: Provided,
however, That any person obtaining service credit under this subsection is required to pay the employee's share and the
employer's share upon his or her actual salary for the years in
question plus interest at the assumed actuarial rate of return for
the plan year being repurchased.
(f) Jobs for West Virginia's graduates and their successors in
interest shall provide a pension plan in lieu of the Public
Employees Retirement System for employees hired on or after July 1,
2005.
(g) Wetzel County Hospital and their successors in interest
shall provide a pension plan in lieu of the Public Employees
Retirement System for employees hired on or after July 1, 2005.
NOTE: The purpose of this bill is to clarify the service
credit and retroactive service credit available to certain members
of the Public Employees Retirement System. It also defines the
type of interest applicable for purchasing reinstated service.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.